U.S. GOVERNMENT PUBLISHING OFFICE

32–965 WASHINGTON : 2018

QUESTIONS REGARDING THE U.S. CENSUS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JUNE 8, 2018 

Serial No. 115–59 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 


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COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DESANTIS, Florida 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

MARTHA ROBY, Alabama 

MATT GAETZ, Florida 

MIKE JOHNSON, Louisiana 

ANDY BIGGS, Arizona 

JOHN RUTHERFORD, Florida 

KAREN HANDEL, Georgia 

KEITH ROTHFUS, Pennsylvania 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

THEODORE E. DEUTCH, Florida 

LUIS V. GUTIE ́ RREZ, Illinois 

KAREN BASS, California 

CEDRIC L. RICHMOND, Louisiana 

HAKEEM S. JEFFRIES, New York 

DAVID CICILLINE, Rhode Island 

ERIC SWALWELL, California 

TED LIEU, California 

JAMIE RASKIN, Maryland 

PRAMILA JAYAPAL, Washington 

BRAD SCHNEIDER, Illinois 

VALDEZ VENITA ‘‘VAL’’ DEMINGS, Florida 

SHELLEY HUSBAND, Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

STEVE KING, Iowa, Chairman 

RON DESANTIS, Florida, Vice-Chairman 

LOUIE GOHMERT, Texas 

KAREN HANDEL, Georgia 

STEVE COHEN, Tennessee 

JAMIE RASKIN, Maryland 

THEODORE E. DEUTCH, Florida 


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C O N T E N T S 

JUNE 8, 2018 

OPENING STATEMENTS 

Page 

The Honorable Steve King, Iowa, Chairman, Subcommittee on the Constitution and Civil Justice ........................................................................................... 1 

The Honorable Steve Cohen, Tennessee, Ranking Member, Subcommittee on 

the Constitution and Civil Justice ...................................................................... 4 

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the Judiciary ......................................................................................................................... 6 

The Honorable Jerry Nadler, New York, Ranking Member, Committee on 

the Judiciary ......................................................................................................... 6 

WITNESSES 

Steve Marshall, Attorney General, Alabama 

Oral Statement ................................................................................................. 9 

J. Christian Adams, President and General Counsel, Public Interest Legal 

Foundation 

Oral Statement ................................................................................................. 11 

Dr. Steve Murdock, Professor, Rice University 

Oral Statement ................................................................................................. 12 

Steven Camarota, Director of Research, Center for Immigration Studies 

Oral Statement ................................................................................................. 14 

QUESTIONS FOR THE RECORD

Dr. Steve Murdock, Professor, Rice University, Response to Questions for the 

Record. This material is available at the Committee and can be accessed on the 

committee repository at: 

https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-115- 

JU10-20180608-SD004.pdf 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Letters Submitted by the Honorable Steve Cohen, Tennessee, Ranking Member, 

Subcommittee on the Constitution and Civil Justice. This material is available at 

the Committee and can be accessed on the committee repository at: 

https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-115- 

JU10-20180608-SD005.pdf 

Letters Submitted by the Honorable Steve King, Iowa, Chairman, Subcommittee on 

the Constitution and Civil Justice. This material is available at the Committee 

and can be accessed on the committee repository at: Justice 

https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-115- 

JU10-20180608-SD003.pdf 

Law Review Article Submitted by the Honorable Jamie Raskin, Maryland. This material is available at the Committee and can be accessed on the committee repository at: 

https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-115- 

JU10-20180608-SD002.pdf 

https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-115- 

JU10-20180608-SD003.pdf 


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QUESTIONS REGARDING THE U.S. CENSUS 

FRIDAY, JUNE 8, 2018 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The subcommittee met, pursuant to call, at 9:07 a.m., in Room 

2141, Rayburn House Office Building, Hon. Steve King [chairman 

of the subcommittee] presiding. 

Present: Representatives King, Goodlatte, DeSantis, Gohmert, 

Handel, Cohen, Nadler, and Raskin. 

Staff Present: Paul Taylor, Chief Counsel, Subcommittee on the 

Constitution and Civil Justice; Jake Glancy, Clerk, Subcommittee 

on the Constitution and Civil Justice; James Park, Minority Chief 

Counsel, Subcommittee on the Constitution and Civil Justice; 

Keenan Keller, Minority Senior Counsel; David Greengrass, Minority Senior Counsel; and Veronica Eligan, Minority Professional 

Staff Member. 

Mr. KING. The Subcommittee on the Constitution and Civil Justice will come to order. 

Without objection, the chair is authorized to declare a recess of 

the committee at any time. 

We welcome everyone to today’s hearing on the subject matter of 

‘‘Questions Regarding the U.S. Census,’’ and I now recognize myself 

for an opening statement. 

Our hearing today will allow Members of Congress and the general public to examine the constitutional options the Federal Government has in determining how the decennial census is conducted 

and used, especially with regard to people who aren’t in the country legally. 

The current policy under which illegal aliens are counted in the 

census and included in the formula for geographically allocating 

Members of the U.S. House of Representatives allows areas with 

many illegal aliens to elect more Federal and State Representatives 

than areas with higher populations of citizens and lawful residents 

but few illegal aliens. 

Since there are only 435 U.S. House Members, providing additional Representatives for areas in the country with many illegal 

aliens will leave other parts of the country inhabited by a relatively 

smaller number of illegal aliens with fewer Representatives. 


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Further, congressional districts with many illegal aliens will 

have fewer citizens casting votes for their Representatives, thereby 

granting citizen voters in districts with many illegal aliens more influence in selecting a Representative. 

Also, legislators from areas that benefit from increased representation because of a disproportionate number of illegal aliens may 

be incentivized to support policies that encourage such aliens to 

come to and continue to stay in America, even when the policy 

preferences of illegal aliens may be very different from those of citizens and legal immigrants. Such legislators may also be 

incentivized to ignore immigration violations or refuse to cooperate 

with Federal immigration law enforcement. 

The controlling language in section 2 of the 14th Amendment 

states that, quote, ‘‘Representatives shall be apportioned among the 

several States according to their respective numbers, counting the 

whole number of persons in each State, excluding Indians not 

taxed,’’ close quote. 

The phrase ‘‘counting the whole number of persons in each State’’ 

makes clear the census envisioned by the 14th Amendment was intended to count former slaves as entire persons, as distinguished 

from the original Constitution, which provided that only threefifths of the number of slaves would be counted for purposes of apportionment. 

The phrase ‘‘excluding Indians not taxed’’ refers to the exclusion 

from census counting of Indians that could not be taxed by State 

or Federal governments because they were members of sovereign 

Indian nations. 

Finally, the words ‘‘their respective numbers,’’ in the context of 

the census’ purpose of determining relative State population totals 

that will be the basis for apportioning Representatives for the subsequent decade, makes reasonably clear that the persons to be 

counted should have some meaningful connection to the State that 

has the significant potential to last through the decade to come— 

in other words, an expectation that they would be residents within 

that district, at least the potential that they would be residents 

there for the decade to come. 

Consistent with this view, the Census Bureau has never attempted to count every person physically present in a State during 

the census and has excluded tourists and other short-term visitors 

and many other categories of people. 

The Bureau’s own application for its ‘‘usual residence’’ standard 

has changed over the years, recognizing the determination of 

whether particular persons should be counted as part of a State’s 

respective number is not an automatic process but one that requires a reasonable judgment as to whether persons have a sufficient connection to a particular State such that their principal residence is in the State and has some minimum likelihood of a continuance there. 

And regarding illegal aliens, there can be no legal residing if one 

is subject to deportation at any time in the near term. 

The understanding of the Framers of the original census provision of 1789 was that apportionment would be based on the relative number of inhabitants in the States. The drafts of the apportionment provision, including the version initially approved by the 


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Constitutional Convention, used the term ‘‘inhabitants’’ rather than 

‘‘persons.’’ 

The committee on style, which is exactly what it sounds like, the 

committee on style or style of language, which was not authorized 

to make substantive changes to submitted provisions, replaced the 

phrase ‘‘citizens’’—replaced the phrase with which they used, which 

was ‘‘citizens and inhabitants of every age, sex, and condition.’’ 

That phrase was replaced with a single word, ‘‘persons,’’ by the 

committee on style. And that was in the description of how the 

States’ numbers were counted. But the historical evidence does not 

indicate that this stylistic change was intended to alter the meaning of the census provision. 

Indeed, in ‘‘The Federalist Papers,’’ James Madison, the highest 

authority, I might point out, who himself was a member of the 

committee on style, described the meaning of the terms of the Constitution as it would be ratified as followed, quote: ‘‘It is a fundamental principle of the proposed Constitution that the aggregate 

number of Representatives allotted to the several States is to be 

determined by a Federal rule founded on the aggregate number of 

inhabitants.’’ 

In the same ‘‘Federalist Papers’’—and that is close quote. In the 

same ‘‘Federalist Papers,’’ Madison wrote, quote, ‘‘Within every successive term of 10 years, a census of inhabitants is to be repeated,’’ 

close quote. 

So he references strongly of ‘‘inhabitants’’ and the definition of 

‘‘inhabitants’’ rather than the stylistic change to ‘‘persons.’’ And the 

original census statute enacted by Members of Congress, including 

members of the Constitutional Convention, refers to ‘‘inhabitants’’ 

as the subject of the census and the basis of apportionment. 

The Constitution grants authority to Congress to exercise its discretion in determining who meets the habitation requirements for 

purposes of the census. Under the Constitution, Congress may direct, by law, the manner in which the census is conducted and enforce provisions of the 14th Amendment. Of course, in doing so, 

Congress may not usurp the Constitution. 

Federal statutory authority also already provides that the Secretary of Commerce, under 13 U.S.C. 141(a), quote, ‘‘shall take a 

decennial census of population in such form and content as he may 

determine,’’ close quote. But, again, the Secretary of Commerce 

may not usurp the Constitution. 

I would challenge Congress and the administration to consider 

whether the residence rule conforms to the original meaning of the 

Constitution. And I am encouraged that the Trump administration 

has made the decision to include a citizenship question on the 2020 

census. 

I hope we can continue working toward a 2020 census that accurately represents the American people. I look forward to hearing 

from all our witnesses today in examining with them how Congress 

and the Federal Government can use its constitutional authority to 

protect the sanctity of the votes of American citizens. 

Finally, I would like to note that I have introduced two pieces 

of legislation to that end—namely, the Census Accuracy Act, which 

would allow the American people more information regarding unlawful presence in the United States, and the Libby Schaaf Act, 


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H.R. 5884, which would punish obstruction of law enforcement by 

State and local officials. 

That concludes my opening statement, and I now recognize the 

ranking member, Mr. Cohen, for his opening statement. 

Mr. COHEN. Thank you, Mr. Chair. 

The Founders considered an accurate count of our Nation’s population to be of such central importance to democratic government 

that they placed a requirement for census in Article I of the Constitution. 

Specifically, Article I, section 2, as amended by the 14th Amendment, requires that, quote, ‘‘an actual enumeration,’’ unquote, of 

the whole number of persons in each State be conducted every 10 

years for the purpose of apportioning Representatives among the 

several States. 

In addition to being used for apportionment, the census can aid 

our use for redistricting for State legislative districts, determine 

the distribution of Federal funds, and estimate population sizes between censuses. And, of course, it also results in the number of 

electors you have in the Electoral College and a way to elect a 

President that is in our constitutional system that does not consider the popular vote. State and local governments, businesses, 

and nonprofit organizations also use census data to inform their 

own decisions. 

Yet the ability to meet the mandate of an actual enumeration of 

the whole number of persons in each State is under threat from 

this administration. 

On the 26th of March, Secretary of Commerce Wilbur Ross 

issued a memorandum directing that a question asking about citizenship be added to the 2020 decennial census questionnaire. Such 

a question has not been on a decennial census in almost 70 years, 

and when it was, it was a time of great, great immigration in our 

country. 

Adding such a question raises the serious risk of depressing the 

response rates of immigrants and other minority communities, 

leading to an undercount of their numbers. 

All we have to do is look to Bean Station, Tennessee, near Morristown, where a raid was conducted and many, many immigrants 

were arrested for no reason whatsoever. The raid was under the 

auspices and the theory that it was going after the company for 

IRS violations. Nobody at the company was arrested or charged, 

but 100 or so people were taken and removed from their homes. 

This has put immigrant populations under fear of even going to 

work. And that is part of what this administration is doing, and 

that is what would happen with this census—fear of being located 

and deported and separated from your family. Indeed, that is what 

we see. And the impact could be devastating for States and cities 

with large numbers of such communities, in terms of losing their 

fair share of congressional seats, Electoral College votes, and Federal funding. What we’re talking about here is simply power, and 

power to try to go to States that don’t have as many immigrants. 

It is no wonder, therefore, that at least six lawsuits have been 

filed by States, cities, advocacy groups, and individual citizens to 

challenge the legality of this administration’s decision to add a citizenship question. 


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According to the administration, a citizenship question is necessary to help enforce section 2 of the Voting Rights Act. That’s 

hard to fathom, but that’s what they say. This assertion seems like 

a thinly veiled pretext to exclude immigrants and racial minorities 

from being counted, literally and figuratively. 

The real problem with voting rights enforcement is not the lack 

of a citizenship question on a census form; rather, that 5 years ago 

the Supreme Court in Shelby County of Alabama v. Holder eviscerated the most important enforcement mechanism of the Voting 

Rights Act when it struck the act’s coverage formula and effectively 

gutted its preclearance requirement. 

If the administration truly wanted to strengthen enforcement of 

the Voting Rights Act, it would push legislation to address the 

Shelby County decision and restore the Voting Rights Act to its full 

effectiveness. Yet they have not done that. 

The same States that had to have preclearance, almost to a one, 

are in the South. They are also the States that most likely are to 

be seen restricting people’s voting rights and making laws that say 

you have to present an ID, but not a college ID, or they move voting places, or they change all kinds of things to make it harder to 

vote. They appreciate minorities very much in those States—when 

they play football. But when they don’t play football and they want 

to vote, they’re not appreciated at all. 

Instead, it chose to add a census question that was not added 

through the usual years-long, exhaustive, and thorough vetting 

process, which could lead to an inaccurate count and the dire consequences that would flow from such an undercount. 

Indeed, this is why six former Census Bureau Directors under 

both Republican and Democratic administrations, including Dr. 

Steve Murdock, who is our witness on the Democratic side today, 

have publicly opposed the addition of a citizenship question to the 

2020 census. 

It is also no answer to say that the census does not or should 

not include a count of undocumented immigrants. The plain meaning of the Constitution’s text is clear: The census must count, 

quote, ‘‘the whole number of persons,’’ unquote. Had the Constitution’s drafters intended to limit the census count to citizens or exclude certain noncitizens, they could have done so, yet they did not. 

Mr. Madison may have said something in ‘‘The Federalist Papers,’’ 

but it wasn’t put in the Constitution. 

Finally, we must remember that the decision to add a citizenship 

question to the census did not happen in a vacuum. Rather, it is 

part of a disturbing pattern of demonization and dehumanization 

of immigrants and other people of color in this country. 

Throughout his Presidential campaign and after he assumed office, President Trump has repeatedly used hostile rhetoric toward 

nonwhite immigrant communities and imposed cruel, heartless, 

and unjustified policies like separating children from families at 

the border—which he claims is a Democrat bill that he is following, 

which is a lie, the big ‘‘L’’ word that comes from the President— 

and banning people from certain Muslim-majority countries. And if 

it wasn’t a lie, he could just put in the bill, suggest the bill, and 

I’m sure his acolytes would pass it. 


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And in so doing, he has engaged in a nauseating flirtation with 

white nationalists and their belief that America is a country for 

whites only. Such bigotry should have no place in American life. 

Yet here we see only the latest example of this President’s continuing dog whistle towards the darkest forces in our society. 

We saw it in Charlottesville, and it sickened me—it sickened 

me—to say that there were fine people on both sides. There were 

not fine people on the sides of the Ku Klux Klan or the neo-Nazis. 

There never were, there never will be, and they’re a threat to 

America as we know it and we believe it should be. 

Adding an unvetted citizenship question to the census will not 

only undermine the Constitution’s mandate of an actual enumeration of the whole number of persons but will only further exacerbate the already substantial mistrust between immigrant and minority communities and the government and only further serve to 

alienate and exclude already marginalized and abused communities. This is exactly the wrong thing to do and the wrong direction for America to go. 

I yield back the balance of my time. 

Mr. KING. The gentleman returns his time. 

The chair will now recognize the chairman of the full committee, 

Mr. Goodlatte of Virginia. 

Chairman GOODLATTE. Thank you, Mr. Chairman. 

I’m pleased the subcommittee is examining today the role the 

U.S. Census can play in giving us a better picture of our Nation’s 

composition. 

In particular, getting better information regarding the citizen 

and noncitizen population of our country has significant implications for the fair and accurate enforcement of the Voting Rights 

Act, the distribution of Members of the House of Representatives 

in the apportionment process, and in providing for equal voting 

power among qualified voters. 

I welcome the attorney general of Alabama here today and all of 

our other witnesses and look forward to their testimony. 

Mr. KING. The chairman returns his time. 

And the chair would now recognize the ranking member of the 

full committee, Mr. Nadler of New York, for his opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, for the first time since 1950, the census questionnaire in 2020, at the request of the Justice Department, will ask 

respondents whether or not they are U.S. citizens. As one of our 

witnesses, Dr. Steve Murdock, will explain, without thorough testing and analysis, the effects of adding a citizenship question are 

unknown and open to an array of dangerous consequences. 

We know, for example, that this new policy is, in essence, as the 

ACLU warns, quote, ‘‘a door-to-door government inquiry as to the 

citizenship status of every member of every household in the 

United States,’’ close quote. This, it argues, will dramatically reduce participation by immigrant communities, stunting their political influence and depriving them of economic benefits. 

I share these concerns, as do several leading organizations committed to upholding civil rights and protecting the interests of immigrants, as well as various State and local government entities. 


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To date, at least six lawsuits have been filed against the Trump 

administration challenging the legality of adding this query to the 

2020 census questionnaire, including one filed by my own State of 

New York, along with several other States and localities. 

In addition, more than 100 of our colleagues in Congress have 

signed on to letters expressing their concern that an untested citizenship question may compromise preparations for the 2020 census 

and could jeopardize the accuracy of the count in all communities. 

Further, six former Census Directors from both Democratic and 

Republican administrations oppose this change, including Dr. 

Murdock. 

Yet, in service of a narrow political agenda, the Trump administration believes it knows better. Or perhaps it doesn’t believe it 

knows better, but it wants to do it anyway. From its earliest days 

to the present, the administration has relentlessly pushed an antiimmigrant agenda. It has blatantly disregarded civil rights protections, as evidenced by its continuous efforts to roll back civil rights 

enforcement. 

And any statements that this is intended to aid civil rights enforcement from an administration that has done everything possible to sabotage civil rights enforcement is the most obvious hypocrisy. Yet the Justice Department now seeks to use its supposed interest in protecting civil rights to justify this change to the census 

questionnaire. 

I find the Department’s purported justification for resisting this 

change—namely, that it is critical to its enforcement of section 2 

of the Voting Rights Act and its important protections against racial discrimination in voting—to be not only disingenuous and hypocritical but offensive. Such justification appears to be no more 

than a thinly veiled smokescreen for the political motivations behind this costly and terrible decision. 

The Constitution, as amended by the 14th Amendment, provides 

that ‘‘Representatives shall be apportioned among the several 

States which may be included within this Union, according to their 

respective numbers, counting the whole number of persons in each 

State,’’ unquote. 

And, contrary to the chairman, I don’t think the change by the 

committee on style from ‘‘inhabitants’’’ to ‘‘persons’’’ changes anything at all. ‘‘Inhabitant’’ means everybody who inhabits, who lives 

there. 

Clearly, this mandate is intended to ensure that all individuals 

are counted regardless of their citizenship status. Thus, changes to 

our Nation’s census process that may have the effect, either intentionally or unintentionally, of diminishing the number of people 

counted, particularly when it targets one category of people, must 

not be taken lightly. 

Allowing political considerations to taint census-related decisions 

that should be driven strictly by scientific considerations and quality standards does a disservice to an agency with a proud tradition 

of scientific excellence and independence. 

Hopefully we can learn a lesson from history. At the time of the 

first census in 1790, some of our most influential constitutional 

Framers were directly involved in overseeing the effort, with Representative James Madison of Virginia reportedly recommending at 


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least five of the initial six questions and Secretary of State Thomas 

Jefferson supervising the overall effort. 

Subsequently, there was controversy about the results, with both 

George Washington and Thomas Jefferson expressing skepticism 

over the final count because they expected a number exceeding the 

3.9 million inhabitants found in the enumeration. 

Like our Founders, I believe our primary constitutional duty is 

to ensure that no one is left out of the census. An accurate count 

is one of the most important civil rights issues to come before this 

subcommittee. Not only is it central to apportioning political power 

at every level of our representative form of government, but the 

data collected also influences the allocation of more than $800 billion in Federal funds every year, along with countless policy and 

investment decisions by government agencies and private entities. 

Mr. Chairman, the conduct of the decennial census was never 

supposed to be a political function. The Constitution mandates the 

count of every person in the United States in order to apportion 

seats in the House of Representatives among the States. Since 

1790, every census has included citizens and noncitizens alike. 

Though the census has political consequences, the conduct of the 

census must be strictly nonpartisan and nonpolitical. 

I do agree that robust oversight is necessary to protect the integrity of the census process and accuracy of the results. Accordingly, 

I thank the chairman for holding this hearing, and I look forward 

to hearing our witnesses today. 

That concludes my prepared statement, but let me just add a 

couple of remarks. 

I believe that this change in the census, the inclusion of this, is 

done in bad faith. It is not done with the real purpose of helping 

civil rights or anything else. Its intent is to frighten people in immigrant communities from participating in the census. Its intent is 

to prevent not only undocumented people but perfectly documented 

immigrants, families of immigrants, citizens, from participating. 

They want to short-count immigrant communities. 

At least the chairman of the committee is truthful and forthright 

about his intent, but the administration is hypocritical about its intent. It is attempting to deliberately sabotage the census for raw, 

partisan, political purposes. It is attempting to discriminate 

against immigrant communities, citizens and noncitizens alike. Its 

conduct is disgusting, immoral, and hypocritical. And it must be 

overturned, even if that means that they do a bad census and we 

have to do another one 2 or 3 years later. 

I yield back. 

Mr. KING. The gentleman’s time has expired. 

And I thank the gentleman. 

Without objection, other members’ opening statements will be 

made part of the record. 

And our first witness is Steve Marshall, the attorney general of 

Alabama. And the second witness is J. Christian Adams, the president and general counsel of the Public Interest Legal Foundation. 

Our third witness is Dr. Steve Murdock, a former Census Bureau 

Director and currently professor of sociology at Rice University. 

And our fourth and final witness is Dr. Steve Camarota, the director of research for the Center for Immigration Studies. 


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The light will switch from green to yellow, indicating that you 

have 1 minute to conclude your testimony. When the light turns 

red, it indicates the witness’s 5 minutes have expired, and we hope 

you can summarize your testimony some time near that point. 

Before I recognize the witnesses, it’s a tradition of this subcommittee that they be sworn in. So please stand. 

Do you swear that the testimony you are about to give before 

this committee is the truth, the whole truth, and nothing but the 

truth, so help you God? 

Thank you. You may be seated. 

Let the record reflect that all the witnesses responded in the affirmative. 

And I now recognize General Marshall for your testimony. 

Mr. General Marshall. 

TESTIMONY OF STEVE MARSHALL, ATTORNEY GENERAL, ALABAMA; J. CHRISTIAN ADAMS, PRESIDENT AND GENERAL 

COUNSEL, PUBLIC INTEREST LEGAL FOUNDATION; STEVE 

MURDOCK, FORMER DIRECTOR, U.S. CENSUS BUREAU, PROFESSOR, RICE UNIVERSITY; AND STEVEN CAMAROTA, DIRECTOR OF RESEARCH, CENTER FOR IMMIGRATION STUDIES 

TESTIMONY OF STEVE MARSHALL 

Mr. MARSHALL. Chairman King, thank you. Ranking Member 

Cohen and distinguished members of this body, I’m honored to appear before you today and appreciate your invitation to discuss specifically the implementation of the proposed residence rule of the 

2020 census. 

Last month, the State of Alabama filed a lawsuit in Federal 

court challenging our expected loss of representation in Congress 

and in the Electoral College as a result of the Census Bureau’s 

counting of illegal aliens for purposes of apportionment. 

As stated in our complaint and as joined by Congressman Mo 

Brooks, who is here with us today, Alabama is set to lose one of 

its seven congressional seats and one of its nine electoral votes— 

a seat and a vote it would not lose if illegal aliens were excluded 

from the apportionment base. 

Not only would this skewed result rob the State of Alabama and 

its legal residents of the rightful share of representation, but it 

plainly undermines the rule of law. If an individual’s presence in 

our country is in violation of Federal law, the question is, why 

should the States in which they reside benefit from their illegal 

status? 

On February 8, 2018, the U.S. Census Bureau promulgated the 

residence rule governing the implementation of the 2020 census. To 

be counted in the census, a person must meet the Census Bureau’s 

‘‘usual residence’’ definition—that is, anyone who has a U.S. residence where they live and sleep most of the time. 

The rule explicitly requires that citizens of foreign countries be 

counted toward the population of their resident State, a population 

total used to calculate the number of Representatives and electoral 

votes each State receives, regardless of whether they are here legally. 


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If the rule is implemented, States with illegal alien populations 

risk losing representation in the U.S. House of Representatives and 

votes in the Electoral College to States with higher illegal alien 

populations. 

According to an expert hired by our office, much like Alabama, 

Ohio is likely to lose a congressional seat and an electoral vote. 

Montana will not gain a congressional seat and electoral vote it 

would have otherwise gained. To the contrary, both Arizona and 

Texas will likely gain one congressional seat and one electoral vote. 

California is expected to keep one congressional seat and electoral 

vote that it would not have otherwise if illegal aliens had not been 

counted for the purposes of apportionment. 

I should note that the 2020 would not be the first time that illegally present foreign nationals were counted in the decennial census. In previous censuses, the Census Bureau has failed to exclude 

illegal aliens from the population counts of each State. Thus, it is 

critical for action to be taken to resolve this issue. 

In 2010, for example, Louisiana, Missouri, and Ohio each lost one 

seat in the House and one vote in the Electoral College. Montana 

failed to gain a seat and electoral vote it would have gained had 

illegal aliens been excluded from the apportionment base. By contrast, California gained two seats and an electoral vote that it 

would not have acquired if illegal aliens had been excluded from 

the apportionment base. 

The reapportionment of House seats and electoral votes is a zerosum proposition. One State’s gain is another State’s loss. Illegal immigration impacts the distribution of seats in the House of Representatives and the Electoral College because the United States illegal population is both large and highly concentrated. Thus, the 

practice of including illegal aliens in the census has repeatedly resulted in the unlawful distribution of additional House seats and 

electoral votes to States with high numbers of illegal aliens from 

States with low numbers of illegal aliens, robbing those States and 

their citizens of their rightful share of representation and political 

power. 

Further, this creates a potential disincentive for States with 

large illegal alien populations to cooperate with Federal immigration authorities seeking to enforce the laws that Congress has enacted. 

The irony, of course, is that illegal aliens cannot vote; therefore, 

they are not the ones who gain from being included in the apportionment base. In a State in which a large share of the population 

cannot vote, those who do vote count more than those who live in 

States where a larger share of the population is made up of U.S. 

citizens. In these States, Representatives and electors will represent a smaller number of constituents than their counterparts in 

States with lower numbers of illegal aliens. 

Large illegal alien populations indisputably redistribute power 

from Americans living in States comprised mostly of U.S. citizens 

and permanent legal residents and give it to others who live in 

States with larger illegal alien populations compromising the right 

of equal representation. 

We are not without recourse, and we have chosen to be proactive 

on this issue. The State of Alabama’s lawsuit asked the court to deVerDate Sep 11 2014 05:46 Nov 29, 2018 Jkt 032965 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 E:\HR\OC\A965.XXX A965

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clare the residence rule unlawful. We assert that apportionment of 

the House of Representatives and the Electoral College based on 

census data that counts illegal aliens in the population figures is 

unconstitutional because it violates the principle of equal representation. 

I see that my time is about to expire. I will yield for questions 

at a later time. 

Thank you, Mr. Chairman. 

Mr. KING. This chair thanks General Marshall for his testimony 

and now recognizes Mr. Christian Adams for his testimony. 

TESTIMONY OF J. CHRISTIAN ADAMS 

Mr. ADAMS. Thank you, Chairman King, Ranking Member 

Cohen, and members of the subcommittee. 

My name is Christian Adams. I am president and general counsel of the Public Interest Legal Foundation and also served as an 

attorney in the Voting Section of the Department of Justice. I 

brought multiple enforcement actions under the Voting Rights Act 

and have since brought dozens of cases relying on census population data. 

The Trump administration’s decision to include a citizenship 

question in the 2020 census is the right decision. Justice Department officials charged with enforcing the Voting Rights Act will 

enjoy more precise citizen population data and, thus, enhance the 

enforcement of civil rights laws. A census that collects robust citizenship data will also give policymakers the chance to curb the real 

everyday foreign influences in our election. 

Having access to robust citizenship data will be extremely useful 

at the Justice Department. Without robust citizenship data, ambiguities and conjecture can impair enforcement of the Voting Rights 

Act. It should not be acceptable to overlook small jurisdictions for 

Voting Rights Act enforcement, but that is precisely what has happened over the years without robust and precise citizenship data. 

Consider the case of Lake Park, Florida, a small town in Palm 

Beach County. The record will establish that I was one of the lawyers who signed the Voting Rights Act complaint in the case of 

United States v. Town of Lake Park. 

In the 2000 census, 48 percent of Lake Park residents were African American, but in 2009 not a single black candidate for town 

council had ever won a seat. A large noncitizen Haitian population, 

however, made it less clear what the precise African-American citizenship population was in Lake Park. 

Remember, the Department may not bring a section 2 case unless a district may be drawn where minority citizens comprise a 

compact majority. Yet one could not turn to the census in 2009 for 

precise citizenship data because precise citizenship data were not 

collected in the 2000 census. 

Voting Rights Act enforcers without robust citizenship data will 

necessarily operate in a degree of statistical fog. 

While it is true that the United States alleged that Lake Park 

contained a sufficiently large black citizenship population to justify 

the case, the extraordinarily large black population, more than 40 

percent, made that an easier assertion to make. Nonetheless, it 


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was impossible to know the precise level of citizenship in Lake 

Park. 

Now, some have attacked President Trump’s decision to collect 

precise, robust citizenship data and question the justifications for 

that improvement made by Acting Assistant Attorney General 

John Gore. As I have shown in the Lake Park case, those critics 

are flat-wrong. Collecting robust citizenship data will aid enforcement of the Voting Rights Act. 

If you simply look at the Voting Rights Act complaints filed in 

section 2 cases, which I detail in great length in my written testimony, you will see over and over again the Department relies on 

citizenship data. If you look at United States v. Euclid School 

Board, the complaint relies on citizenship estimates. 

A particularly revealing case is United States v. The School 

Board of Osceola County, a case in Florida from about 14 years 

ago. In that case, the Department made an allegation in the complaint that a majority of citizen voting-age population in one illustrative district could be drawn for minorities. They made the specific allegation of citizen voting-age population. But the truth is 

that the Department did not enjoy access to that data because it 

did not exist. They had to use estimates as opposed to precise data. 

I talk about a South Carolina case that I worked on, United 

States v. Georgetown County School Board, and other cases. You 

can read the complaints yourself—United States v. City of Boston, 

United States v. Osceola County, and on and on and on. 

It is simply wrong to claim that enhanced robust citizenship data 

would not aid enforcement of the Voting Rights Act. Correctly 

ascertaining the citizenship populations, particularly in areas 

where the racial minority has sizable numbers of noncitizens distributed throughout the geographic area, would greatly aid Justice 

Department staff in correctly and precisely enforcing the Voting 

Rights Act. 

Thank you, Mr. Chairman. 

Mr. KING. Thank you, Mr. Adams. 

The chair now recognizes Dr. Murdock for 5 minutes. 

Dr. Murdock. 

TESTIMONY OF STEVE MURDOCK 

Mr. MURDOCK. Thank you for the opportunity to be here. I appreciate having been—— 

Mr. KING. Could you pull that microphone a little closer? 

Mr. MURDOCK. Sorry. I appreciate having the opportunity to 

speak to you today. 

Let me tell you a little bit about my background. I previously 

served as Director of the U.S. Census Bureau under George W. 

Bush and as State demographer of Texas, having been appointed 

to that position by Governor Rick Perry. I have, therefore, worked 

for both Republicans and Democrats, in terms of doing demographic analysis. 

I have also served as a faculty member at Rice University and 

several other universities. And for more than 35 years, I have performed substantive analyses of how demographic and socioeconomic 

change impact the forms and types of development in rural and 

urban communities. 


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I understand that the proposals you are discussing today are the 

subject both of litigation and legislation, so let me state the obvious: I am neither a lawyer nor a legal scholar. Therefore, I cannot 

offer an informed opinion on the intent of the Founding Fathers or 

subsequent legislators with respect to the meaning of the U.S. Constitution’s original census clause. 

I can assure you, based on my and many other demographers’ experience, the Census Bureau follows the guidance of the U.S. Department of Justice, as well as its own counsel, with respect to 

whom it should include in the Nation’s constitutionally required decennial enumeration of the population. In other words, the Census 

Bureau follows the requirements set out by law, in terms of performing its duties. 

The Justice Department reaffirmed the position of the Census 

Bureau in 1989 and was part of the oversight—and was dealt with 

by the oversight subcommittee during the administration of President George H.W. Bush. 

I and many other scholars and officials using census data have 

concerns related to the implementation of the census and the factors you may want to weigh as you consider proposals that directly 

or indirectly require the Census Bureau to include questions on 

citizenship and immigration status on the decennial form. 

The inclusion of such questions may adversely affect the accuracy 

of census data and, thus, their utility for apportioning seats in the 

U.S. House of Representatives among the 50 States and for developing the boundaries of House districts within States. Such questions should not be included in the census until they have been 

thoroughly tested, including field testing. 

Beyond the fundamental uses for redistricting, as all of you 

know, census data help guide the prudent distribution of many billions of dollars in Federal and State assistance to local communities, guiding their expenditures for healthcare, education, rural 

hospitals, infrastructure, et cetera. 

Civic and business leaders rely on accurate data from the census 

and other data sets for which the census provides baseline data to 

attract and retain vital businesses and the investments that they 

involve. In addition, businesses use census information to guide 

such decisions as where to locate plants and stores, et cetera. 

In fact, when I served as State demographer, I received many requests for data that could be readily obtained, directly or indirectly, 

from the census to inform the work of State agencies as well as private-sector entities. 

I recognize the delicate balance that must be achieved to ensure 

that all those residing in the United States are included in determining the demographic base for the proportion of House seats. 

Thus, despite the fact that data apparently have been successfully 

collected on citizen status for some purposes, I am concerned about 

how the inclusion of questions that directly solicit information on 

citizenship and immigration and legal status from every person residing in the Nation will affect the completeness of the census 

count for the primary constitutional purpose of the census: the distribution of House seats among the States. At the same time, State 

and local agencies and planners, et cetera, are using such data effectively. 


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Preparations for the census are complex. We know that they’re 

involved in a number of dress rehearsals at the present time. But 

I think most people—and I was among those six Census Directors 

that signed the letter referred to earlier—believe that adding untested questions on citizenship and immigration status at this point 

in the decennial planning process would put the accuracy of the 

enumeration and success of the census in all communities at risk. 

While the ongoing American Community Survey and earlier surveys have included a question on citizenship, data collection for all 

census areas have not included such a question since 1950, a very 

different time in terms of our Nation’s history. 

Mr. KING. Thank you, Dr. Murdock. 

And now the chair would welcome back to the committee and 

recognize Dr. Camarota for his 5 minutes of testimony. 

TESTIMONY OF STEVEN CAMAROTA 

Mr. CAMAROTA. As the chairman said, my name is Steven 

Camarota. I am director of research at the Center for Immigration 

Studies. And I would like to thank the committee for allowing me 

to testify today. 

Now, in my oral testimony, I would like to emphasize just three 

points: First, it has been the norm to ask a citizenship or related 

question in prior decennial censuses; second, there is value in doing 

so; and, third, at present, there is no evidence that reinstating this 

question on the census would reduce response rates. 

Let me begin with just a little bit of history. From 1820 to 1950, 

except for 1840, the decennial census included at least one question 

on citizenship or place of birth. Immigrants, of course, can be identified, then, from the country of birth they report. From 1960 to 

2000, a question on citizenship or place of birth was asked to a subset of the population, roughly 10 million to 17 million households, 

taking part in the census. 

Other than 1840, the 2010 census was the first time since 1820 

that neither data on citizenship nor country of birth was collected 

in the decennial census for at least some share of respondents. In 

short, there is nothing unusual about asking about citizenship or 

related questions in the census. 

Second, there is value in doing this. The Census Bureau, in its 

memorandum outlining its reasons, pointed out that it would be 

very helpful in enforcing the Voting Rights Act. Now, I would like 

to add that, from the perspective of a researcher, it would be very 

helpful to have this information. 

Some may think that because we already ask citizenship in other 

surveys administered by the Bureau that we don’t need to do it in 

the census. But in my many years working as a contractor for the 

Census Bureau evaluating the citizenship data in the American 

Community Survey, it was always challenging to find ways to 

measure the actual accuracy of that question. Then, as now, there 

is no definitive government data on the number of citizens residing 

in the United States that we could ever compare the survey results 

to. A citizenship question on the census would certainly provide 

much useful information in that regard. 

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sponse rate, at present there is no evidence that this would happen. There’s just a concern. The argument is that, while citizenship 

was asked in many past censuses and is asked in many ongoing 

Census Bureau surveys, the candidacy and election of Donald 

Trump may have changed things. In particular, the idea is that 

stepped-up enforcement has created what might be called a Trump 

effect. That’s my word. 

It is true that the Center for Survey Measurement, part of the 

Census Bureau, did conduct some interviews and focus groups with 

field representatives and respondents on this potential problem and 

found that there was heightened concern that the enforcement of 

immigration laws may be affecting people’s willingness to take part 

in government surveys. However, the Census Bureau, when it put 

that data out, it said that the survey was very small and it was 

unrepresentative—their words. So it’s hard to know what, exactly, 

to make of it. 

But we can, actually, get some idea of whether collecting citizenship data has become uniquely problematic, particularly in the 

Trump era. I discuss this more in my written testimony, but we 

can look at this question by first looking at the refusal rates right 

now on the Census Bureau’s American Community Survey. It asks 

about citizenship. And it is true that there has been an increase 

in the share of people refusing to take part in that survey since 

2005. But that increase began well before President Trump threw 

his hat into the ring. Moreover, the rates have not gone up faster 

in high-immigration States. So if refusal had something to do with 

immigration status, we would expect that to be the case, but it 

isn’t. 

We can also look at the Census Bureau’s Current Population 

Survey, which also asks about citizenship and is collected each 

month. There has been no noticeable shift in the number of people 

who identify as immigrants from June 2015, when Trump threw 

his hat into the ring, to January of this year. 

We can even dive a little deeper into that survey and look at 

those joining the survey each month for the first time, this socalled incoming rotation group. There has been no noticeable increase in what is called allocation rates on the citizenship question 

through January of this year. In other words, people coming into 

the survey have not been refusing to say whether they’re citizens 

or not at any higher rates. And we have data through the first part 

of this year. 

In sum, neither the CPS or ACS indicate that collecting citizenship data has become more difficult in the era of Donald Trump. 

In sum, asking a question on citizenship or place of birth has 

been the norm; doing so, second, has value; and, third, at present, 

there is no evidence that reinstating the question would actually 

impact response rates. 

Thank you. 

Mr. KING. That concludes the witnesses’ testimony. And now the 

chair will recognize himself for his 5 minutes of questioning. 

And I thank you all for your testimony here. 

Dr. Camarota, I was just thinking about some of the testimony 

maybe 10 years ago or so on this same topic that you delivered. It 

seems to me that in that testimony—and I didn’t check this for 10 


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years, so—but it seems me that your testimony was that if we 

counted citizens rather than persons the reapportionment would result in between 9 and 11 congressional seats shifting from States 

like Florida, Texas, California to States like Utah and Indiana at 

that time. 

Do you recall that testimony, and does that fit your perspective 

today? 

Mr. CAMAROTA. Yes. Remember, there are about 20 million noncitizens living in the United States. In the census, we would expect 

about 10 million illegal immigrants to show up and about 10 million persons here legally in various statuses, mostly green cards. So 

that 20 million looks like it would still redistribute somewhere between 9 and 11 million seats in the House of Representatives. 

Mr. KING. Nine to 11 seats. 

Mr. CAMAROTA. Seats, right, that would change hands. 

Mr. KING. Okay. Thank you. I appreciate that, Dr. Camarota. 

I would like to turn to Attorney General Steve Marshall. And 

what I didn’t hear in this testimony from anybody on this panel is, 

what should it look like if this country were functioning properly 

and appropriately? What would be the configuration of our electoral laws in the country? 

And if we’re going to try to get to the ideal—I would always like 

to see what’s the pattern that we’d like to reach here and get our 

country fixed so it’s functioning correctly. What would that America 

look like within the context of this electoral law that we have? 

Mr. MARSHALL. Mr. Chairman, I can say from my perspective— 

and this is somebody that’s a prosecutor. You know, I’m not a policymaker. But I believe in the rule of law. And that means that we 

enforce our laws equally across the spectrum of immigration so 

that we don’t create in this situation an incentive for sanctuary cities or for certain localities to not enforce our immigration laws and 

that we adhere to the Constitution and that we allow for that Constitution to be implemented and interpreted as our Framers intended. 

And so the nature of our lawsuit, a little bit different than some 

of the testimony you’ve heard here, is specifically about those who 

will be counted for purpose of congressional apportionment. And 

the reason why we are advocating against the residency rule that 

exists right now is that, currently, that information that we need 

to believe that the residency rule should be done and adopted as 

intended, that information is not being collected. And although 

there were comments provided to the Census Bureau when the residence rule was adopted, those comments were never addressed 

specifically relating to what we have alleged here. 

And so our opportunity, specifically, is to put in front of a Federal judge this claim to seek relief and then allow for that judge 

to be able to fashion a remedy that’s consistent with the law as 

stated. 

Mr. KING. You had stated that you’re not a policy person, but I 

would still ask you a policy question, which is: If you were going 

to design a census series of questions—I mean, I understand you’d 

would want to, ask are you a citizen? Would you also advocate for 

asking for, if you’re a legal immigrant, under what status is that 

legal position—say, a green card or a visa or whatever the case 


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may be? And then, from beyond that, the omissions on that status 

if you’re not legal would be, then, an illegal. 

Would you advocate for collecting all that data so we know who 

is here and why? 

Mr. MARSHALL. The simple answer is yes. You know, for us in 

the claim that we have here and from a policy perspective, not only 

would we want to know your citizenship but also whether or not, 

if you’re here illegally, have you overstayed your welcome, in essence, the status you were granted, or have you ever even been 

granted status in the first place. And by having that information, 

it would allow us to do an appropriate apportionment of those congressional Representatives and the Electoral College. 

Mr. KING. And what I’m hearing in some of the statements made 

up here on this panel, discussion about semantics rather than policy. And I would advocate what you’ve described is the policy we 

need to get to, regardless of how the semantics are argued out 

here. 

And I would point out a statement made by Ninth Circuit Judge 

John Noonan in 1985 when he said this: ‘‘If there were an invading 

army on American soil, one does not suppose the Bureau of Census 

would count the enemy troops,’’ close quote. 

Any comments on that, General? 

Mr. MARSHALL. No, again, other than, as somebody who has 

spent a career enforcing the law, I believe that we have that responsibility across our country. 

Mr. KING. And I’d turn to Dr. Camarota for his comment because 

I saw his facial expression. 

Mr. CAMAROTA. Yes, that would seem to not—you know, I’m not 

a constitutional lawyer, but it does seem to violate the spirit of, 

sort of, the Constitution to count an invading Army. That’s for 

sure. But, under the current rules, if they were residing and that 

was their usual place of residence, of occupation, I guess they 

would have to attempt to be counted. 

Mr. KING. We would have to draw a distinction between an invading army and an unarmed invading group of illegal aliens. 

My time has expired, but I want to give deference to Dr. 

Murdock, who waved his hand. I don’t expect the ranking member 

will object. 

Mr. MURDOCK. Okay. Yes, I think the thing here that’s important 

to understand from the standpoint of the Census Bureau is the 

Census Bureau does very careful work. It tests things to ensure 

that they, in fact, are responded to in ways that are logical and 

which reflect their status—that means citizen status—in a variety 

of ways. 

I think what upset many of us that signed that letter that you 

saw, the six of us, was that we really haven’t had the time or 

haven’t taken the time—I won’t fight over that—to evaluate these 

questions the way we evaluate every question, not just these questions but other questions on other elements that are involved. 

And so what the Census has been asking for or suggesting is 

that, if we want the same accuracy with those kind of questions 

that we have with others, we need to allow the testing and other 

procedures to be performed with the Census. 

Mr. KING. Thank you, Dr. Murdock. 


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Mr. MURDOCK. These have come late in the process. 

Mr. KING. Thank you. 

The chair would now recognize the ranking member, Mr. Cohen 

of Tennessee. 

Mr. COHEN. Thank you, sir. 

Dr. Murdock, do you know what findings were made to support 

the conclusion that adding the citizenship status question would 

help enforce section 2 of the Voting Rights Act or other laws that 

protect the voting rights of racial minorities? Do you know whether 

research was conducted and whether the research and findings 

were released publicly? 

Mr. MURDOCK. Well, the Census is looking into some of these 

issues right now. The issue, as people have indicated, has been 

there for some time, but the problem is not so much the item but 

introducing it into the process where we are. 

Understand that we are, in census terms, very close to the next 

census, and we will therefore have a census form, some questions 

of which have been used and tested, et cetera, and, on the other 

hand, items that most of us who are former Census Directors 

would argue require additional research and analysis before they’re 

implemented. 

Mr. COHEN. Do you believe the fact that citizenship has been 

asked on the ACS suffices to test the question for inclusion on the 

decennial form? 

Mr. MURDOCK. You know, the ACS is a very valuable data collection source for lots of reasons. It does not replace, you know, what 

you want to obtain in terms of information for issues, other kinds 

of issues. 

This requires—and I think most of us as Census Bureau Directors would say this—this requires an assessment and a testing 

process. This should be treated like other elements on the census 

form. And as Census Directors, what we are arguing is that, if you 

do not do that, things will occur that will be difficult for you to 

ameliorate. 

Mr. COHEN. Many in the civil rights and voting rights communities have been concerned since the Shelby v. Holder decision that 

section 2 of the Voting Rights Act needs to be restored, that the 

Voting Rights Act has lost much of its importance. 

Can any of you tell me which organizations—and they would be 

the organizations, naturally, to speak up, civil rights or voting 

rights advocates—have requested pushing for citizenship status as 

a way to help enforce section 2 of the Voting Rights Act? Which 

groups have done that? Can anybody help me with that? 

Mr. ADAMS. Mine has. My group has done that. 

Mr. COHEN. And have you participated in bringing actions under 

the Civil Rights Act? 

Mr. ADAMS. Yes. 

Mr. COHEN. Which actions have you brought? 

Mr. ADAMS. A number of them. Davis v. Guam. We’ve brought 

more than two dozen cases relying on census citizenship data. My 

testimony got into great detail on that point. 

Mr. COHEN. Thank you. 

General Marshall, has Alabama been a party to any section 2 

cases where they have been the initiating party? 


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Mr. MARSHALL. Mr. Cohen, I’m not aware of that specifically, but 

I’ll be glad to be able to provide a written reply if we determine 

that—— 

Mr. COHEN. Would having citizenship information on 100 percent 

of the population improve the enforcement of section 2 in Alabama? 

Mr. MARSHALL. Again, I can’t comment on that, but I’ll be glad 

to provide written testimony. 

Mr. COHEN. Thank you, sir. 

Is Roger Bedford alive and well? 

Mr. MARSHALL. He is alive and well, yes, sir. I will be glad to 

send him your regards. 

Mr. COHEN. Please. We’ve known each other a long time. Thank 

you. 

Dr. Murdock, are there any other things you’d like to comment 

on? 

Mr. MURDOCK. Excuse me? 

Mr. COHEN. Would you like to comment on any other—— 

Mr. MURDOCK. Only as a former Census Director, when you look 

at the processes that the Census has implemented, for this issue 

or many others, these are tried and true processes for the evaluation of information or questions that you want to use in the census 

and similar kinds of procedures. 

So I think for most of us, all of us, in fact, signing that letter 

as Directors, our concern was not to change the pattern and suddenly start putting in issues that might be politically popular or 

unpopular but which have not been tested in the very strict, empirical kind of way that census data questions and issues are normally 

tested. 

Mr. COHEN. Thank you. 

And I yield back. 

Mr. KING. The gentleman returns his time. 

The chair would now recognize the chairman of the full committee, Mr. Goodlatte from Virginia, for his questions. 

Chairman GOODLATTE. Thank you, Mr. Chairman. 

Attorney General Marshall, what do you believe is Congress’ role 

in rectifying the concern that you raise in the State’s lawsuit? 

Mr. MARSHALL. Mr. Chairman, I think you have a couple of functions. 

Number one, you obviously exercise congressional oversight of 

the Census Bureau, and so you have the ability to inquire and engage in the discussion that we hear about today. Specifically for us 

in Alabama is this issue of the inclusion of information for purposes of congressional apportionment. 

You obviously are that body that makes law. You have the ability 

to be directly involved in being able to change our statutes to make 

sure that we can rectify what we believe is an unconstitutional act 

by the Census Bureau in the adoption of this rule itself. 

And then, beyond that, I think, to be very much engaged in the 

litigation that we’re involved with, to be able to see that Congressman Brooks has taken a bold statement to be able to make sure 

that we’re going to stand for the rule of law. And you have the ability to stand with that as well. 

Chairman GOODLATTE. Your complaint alleges a number of legal 

theories as to why illegal aliens should not be counted for purposes 


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of apportionment. Which do you believe a court will find most compelling? 

Mr. MARSHALL. Mr. Chairman, I’m a litigator, so I’m not going 

to concede anything. Having said that, I do think that the APA violations specifically are the most straightforward allegations, specifically that when the rule was proposed that there were comments 

made specifically relating to the allegations that we make in the 

complaint, and there was no response to those comments at all. 

Chairman GOODLATTE. Would you give us a little more detail on 

the Administrative Procedures Act? 

Mr. MARSHALL. Specifically two allegations, one of which is the 

adoption of the rule itself was arbitrary and capricious, and that 

relates to the failure to be able to comment on that rule itself, but 

we also believe the Census Bureau exceeded their statutory authority when they adopted the rule to begin with. 

Chairman GOODLATTE. And how do you distinguish your suit 

from the case that the U.S. Supreme Court considered in Evenwel 

v. Abbott? 

Mr. MARSHALL. Two very specific grounds. Number one is that 

that case involved an intrastate question. It was not challenging it 

in a broad basis but actually within the State itself. And what we 

have seen is the Supreme Court has given great deference to intrastate issues in this area, as opposed to those that affect a national 

basis like we have here. And we believe, for those two very specific 

reasons, that case is distinguishable from the action that we filed. 

Chairman GOODLATTE. Thank you. 

Mr. Adams, the attorney general’s Alabama lawsuit against the 

Census Bureau argues that, by including illegal immigrants in its 

count of the population, the Census Bureau is depriving that State, 

along with other States with relatively low numbers of illegal immigrants, of representation in the U.S. House of Representatives 

and also votes in the Electoral College that determine who is elected President. 

Can you elaborate more on the unfairness of that current situation with regard to these States? 

Mr. ADAMS. Thank you, Chairman Goodlatte. 

Americans should be electing American leadership. And it is undeniable that that situation that you described is occurring. I think 

both sides of the aisle would agree that some States are getting 

more electoral votes because aliens are being counted for apportionment. 

Now, is that something that most Americans are happy with? I 

would venture to say that’s something that they would disagree 

with strongly. 

Chairman GOODLATTE. Mr. Camarota, how does the current system disincentivize States with large illegal alien populations from 

cooperating with Federal immigration authorities? 

Alabama’s lawsuit argues that including illegal immigrants in 

the census will likely cause it to unfairly lose part of its share of 

the almost $700 billion distributed each year by the Federal Government in grants and other funds. 

Can you describe why it is unfair to financially penalize States 

that have fewer illegal aliens? 


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Mr. CAMAROTA. Right. So the bottom line is that political influence, as well as funds, is distributed based on the results of a census. So if you have people who are not supposed to be in the country but are residing in a State, the State has every incentive for 

them to be counted. So it means more money for the State. It 

means more political influence in Congress. It means more political 

influence over who elects the President. 

So the incentives are certainly all on one side for the State with 

the large illegal population; that’s for sure. 

Chairman GOODLATTE. Thank you, Mr. Chairman. I yield back. 

Mr. KING. The chairman returns his time. 

The chair would now recognize the gentleman from Maryland, 

Mr. Raskin, for 5 minutes. 

Mr. RASKIN. Mr. Chairman, thank you very much. 

Let’s see. I thought I would start with you, Attorney General 

Marshall. Welcome, and thank you for your testimony. 

As I understand it, your argument is that the Constitution forecloses the ability to ask about the presence of noncitizens in the 

country. Is that right? 

Mr. MARSHALL. No. What our litigation specifically is about is 

the use of illegal aliens in the count for purposes of congressional 

apportionment. 

What we believe is that those who are in this country either exceeding their lawful authority or who do not come into this country 

legally in the first place should not be counted specifically for purposes of congressional apportionment as it relates to not only the 

Members of this body but also for the Electoral College. 

Mr. RASKIN. Okay. And so I guess I come back to a question the 

chairman asked. It seems like the Supreme Court ruled on this in 

Evenwel v. Abbott, where it said that the plaintiffs had no basis 

to challenge the decision to apportion Representatives based on 

total population rather than citizen voting age population. 

And I don’t quite know how the interstate/intrastate argument 

affects the fact that the Supreme Court has precluded your argument, but maybe—can you illuminate that? 

Mr. MARSHALL. Again, I mean, we could be here for a while, 

probably, to be able to distinguish that. And I’ll be glad to provide 

additional written testimony that shows specifically why we believe 

that that case is distinguishable where we are. 

But I do think that the intrastate and interstate distinction is 

critical based on prior precedent in how the court has carefully 

scrutinized those issues. 

Mr. RASKIN. Okay. Let me ask you this: Do you consider yourself 

an originalist in terms of constitutional interpretation? 

Mr. MARSHALL. Yes. 

Mr. RASKIN. Okay. Do you know that the original censuses, 

which were created basically by the same people who wrote the 

Constitution—Madison, Jefferson—did not include any question on 

aliens or citizenship? 

Mr. MARSHALL. I think also—and, again, this is one where we 

can provide additional written testimony—that we’re prepared to 

present as part of our litigation significant history of that particular clause of the Constitution as well as how it was interpreted 

going forward—— 


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Mr. RASKIN. Okay. 

Mr. MARSHALL [continuing]. And we believe that it only included 

those who were in this country lawfully. 

Mr. RASKIN. Okay. 

The 1790—I just got the information from the Library of Congress. The 1790 census had no question on citizenship, immigration, or birthplace. The 1800 census had no question on citizenship, 

immigration, or birthplace. And the 1810 census had no question 

on citizenship, immigration, or birthplace. 

So forget the last 60 years of practice, which is consistent, that 

the original interpretation by the Founders of the country and the 

Framers of the Constitution was not to require that question. So 

that’s just something you might think about in terms of fleshing 

out the argument. 

But let me pose a different kind of question, which is, are you 

aware that for most of American history noncitizens could vote in 

most of the States? 

Mr. MARSHALL. Most of the States, but also there’s a distinction 

between Federal elections as well. 

Mr. RASKIN. Yeah. But in Federal and State and local elections. 

In fact, the Republican Party was the great champion of noncitizen 

voting. In the run-up to the Civil War, the Republican Party took 

the position very strongly that noncitizens had the right to vote. 

The Supreme Court repeatedly authorized that, including in Minor 

v. Happersett. 

And the Southern States, of course, opposed it; they were opposed to noncitizen voting. And the very first article of the Confederate constitution stated that you had to be a citizen in the Confederacy in order to vote there, but that view lost during the Civil 

War. And then after the Civil War, noncitizen voting spread across 

the country. 

The practice was called declarant alien suffrage, that if you declared that you were planning to become a citizen, they would give 

you the right to vote in most places. 

But, generally, the view was, from the beginning of the country, 

if you were white, you were male, you owned property, your citizenship was completely irrelevant to whether or not you had a right 

to vote. 

So it just seems to me that you’re trying to put a gloss on the 

Constitution that was never there. Now, that might be good, it 

might be bad. You know, we could rewrite it. But don’t you think 

the proper road to go for those who want to put a citizenship question and want to impose the citizenship requirement for voting, 

which has never been there, is to amend the Constitution? Don’t 

you think we need to do that? 

Mr. MARSHALL. No. I think that—and our litigation will establish 

clearly that that was the intent. And we believe that the Federal 

judge will rule in our favor to be able to include that information. 

Mr. RASKIN. Thank you. 

Mr. Murdock, let me ask you, what’s the usual process for adding 

new questions to the census? Because a lot of us aren’t familiar 

with that. How does it work? 

Mr. MURDOCK. Well, generally, what happens is there is a need 

that is recognized by governmental and other entities to provide inVerDate Sep 11 2014 05:46 Nov 29, 2018 Jkt 032965 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 E:\HR\OC\A965.XXX A965

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formation on a particular item. The census gets a very large number of suggestions of things that they should analyze, and—— 

Mr. RASKIN. Is there an administrative process with notice and 

comment—— 

Mr. MURDOCK. Yes. 

Mr. RASKIN [continuing]. And hearings and so on? 

Mr. MURDOCK. Yes. They have a committee that—well, in terms 

of the census, they have committees that they create—— 

Mr. RASKIN. Okay. Has that taken place here or has that process 

been short-circuited, with respect to this citizenship question? 

Mr. MURDOCK. I’m not sure about that particular question right 

now, but it has historically been one that has been examined very 

thoroughly. 

Mr. RASKIN. Well, what’s different about this process is I guess 

what I’m asking. Because you were saying that there’s a major 

process problem. 

Mr. MURDOCK. Well, I don’t believe there’s a process problem. 

There may be a timing problem, in terms of how long we’ve been 

with a great emphasis on one particular view here. Census tries 

not to be someone who is Democratic or Republican. It sees itself 

as being an objective purveyor of information and obtainer of information. 

That requires that, when you have an issue that someone brings 

up—and there are thousands of issues that people would like put 

on census forms—the Census has committees then that analyze 

this, reduce it to a small number of items that they think fit within 

their mandate of what they’re supposed to do. And then they determine whether or not they want to, and in many cases do, do their 

own tests of whether they can accurately and adequately obtain information on that particular item. 

So the Census is very careful about adding items. They don’t 

just, you know, decide, well, wouldn’t it be fun to know X, Y, or 

Z. They have a very careful process. And it is a neutral process—— 

Mr. RASKIN. Thank you. 

Mr. MURDOCK [continuing]. In terms of—— 

Mr. RASKIN. Thank you for your indulgence, Mr. Chairman. 

Mr. KING. The gentleman returns his time. 

And the chair would now recognize the gentlelady from Georgia, 

Mrs. Handel. 

Mrs. HANDEL. Thank you, Mr. Chairman. 

And thank you to our distinguished panel today. 

One comment, just to clarify things for anybody who might be interested in reading the testimony from today and the comments: Irrespective of what was taking place in terms of voter eligibility in 

the 1700s and the 1800s, let’s be perfectly clear that, today, under 

current law, it is patently illegal for a noncitizen to vote in a Federal election, period, full stop. 

To Dr. Camarota, when was the first time that the citizenship 

question was asked in a census? 

Mr. CAMAROTA. 1820. 

Mrs. HANDEL. Thank you. When was the last time it was asked 

in a census? 

Mr. CAMAROTA. About 17 million people received it in 2000. 

Mrs. HANDEL. All right. 


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Mr. CAMAROTA. 17 million households. More people, but 17 million households. 

Mrs. HANDEL. Would it be fair to say that asking about citizenship or place of birth, including country of birth, has been a fairly 

common practice in previous censuses? 

Mr. CAMAROTA. Either on the regular census or a very large subset of the population. It’s been the norm, yes. 

Mrs. HANDEL. Okay. Great. Thank you so much. 

And, Attorney General Marshall, thank you so much for being 

here. Are noncitizens eligible to vote in Federal elections? 

Mr. MARSHALL. No. 

Mrs. HANDEL. So it’s illegal for a noncitizen to vote. 

Mr. MARSHALL. That’s my understanding. 

Mrs. HANDEL. All right. So, if noncitizens are ineligible to vote 

in a Federal election, why would a noncitizen be included in the 

formula for congressional apportionment? 

Mr. MARSHALL. That’s my question to you. And that’s specifically 

the question that we’ll present to the Federal judge, is not only 

does it dilute the authority of certain States and their voters to be 

able to have an influence, it obviously overstates the authority of 

other States that allow people to be in this country and ignore the 

immigration laws. 

Mrs. HANDEL. So would it be your opinion that if noncitizens are 

ineligible by law to vote in a Federal election and then are included 

in the reapportionment formula, that that would indeed dilute not 

only the voting power of minorities but, indeed, the voting power 

of all eligible voters? 

Mr. MARSHALL. Yes. And, in fact, that will be a part of our litigation. 

Mrs. HANDEL. Super. Thank you so much. 

And, with that, I’d like to yield my time to my distinguished colleague, Representative Brooks, if the chair is okay with that. 

Mr. KING. The chair would note that we haven’t allowed that policy in the past, our tradition on this committee, but I understand 

your—I’d love to have Mr. Brooks speak, but we would be breaking 

a long-established policy. 

Mrs. HANDEL. All right. Thank you. 

Mr. BROOKS. Bummer. 

Mrs. HANDEL. Then, with that, I will yield back. 

Mr. KING. The record will show the quote from Mr. Brooks regardless: ‘‘Bummer.’’ 

So this concludes today’s hearing. 

And I want to thank the witnesses for your testimony, your responses to the questions, and the written testimony that you submitted. 

I want to thank the members of this committee for engaging in 

this. And I want to thank the people who came in and listened to 

this hearing today. 

And, hopefully, this moves us forward in a more constitutional 

direction than we have in the past and—— 

Mr. RASKIN. Mr. Chair. 

Mr. KING. The chair would yield. 

Mr. RASKIN. Can I just submit something for the record, a Law 

Review article? 


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Mr. KING. Hearing no objection—could you speak to what that is, 

though? 

Mr. RASKIN. Yes. It is a Law Review article, written in 1993 in 

the University of Pennsylvania Law Review, called ‘‘Legal Aliens, 

Local Citizens: The Historical, Constitutional, and Theoretical 

Meanings of Alien Suffrage.’’ And I wrote it. 

Mr. KING. Well, this would be an interesting thing for me to 

read. 

There’s no objection heard by this chair. If so ordered, it shall be 

entered into the record. 

Mr. RASKIN. Thank you very much. 

[The information follows:] 

This material is available at the Committee and can be accessed 

on the committee repository at: https://docs.house.gov/meetings/JU/ 

JU10/20180608/108398/HHRG-115-JU10-20180608-SD002.pdf; 

https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG115-JU10-20180608-SD003.pdf. 

Mr. KING. Without objection, all members have 5 legislative days 

to submit additional written questions for the witnesses or additional materials for the record. 

This hearing is now adjourned. Thank you. 

[Whereupon, at 10:16 a.m., the subcommittee was adjourned.] 

Æ 


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