People who refuse to answer the citizenship question on the 2020 census are breaking the law — but there is little chance they will be fined, much less sent to jail, for their obstinacy.
It has been nearly a half-century since anyone was prosecuted for refusing to answer, and legal analysts say the law is now more of a prompt than a threat backed by punishments.
Although census takers always encounter refusals, the number next time could be higher than average thanks to the question that the Justice Department sought and the Commerce Department agreed to add to the decennial count. The Commerce Department oversees the Census Bureau.
Top administration officials have been at pains to tell people not to worry.
“It shouldn’t scare people,” Attorney General Jeff Sessions said during a congressional hearing in April. “They don’t have to answer it, really. I would think that’s a very reasonable thing, and I think concerns over it are overblown.”
The problem is that the law might say otherwise.
“It is a federal crime not to answer census questions,” said Hans von Spakovsky, a scholar at The Heritage Foundation, citing 13 USC 22.1. He said that law and another that could boost fines for noncompliance to as high as $5,000 are “not unconstitutionally vague.”
Phil Sparks, senior adviser and co-director of the Census Project with the Communications Consortium Media Center, sees it differently.
He said that while Americans must respond to the 2020 count, “there is no requirement to answer all the questions. The Census Bureau will accept a partially answered form.”
The Commerce Department, hoping to avoid confrontation from both sides, has been noncommittal.
Officials instead say Secretary Wilbur Ross has stressed the importance of complete responses and that omitting answers only increases the chances of a knock on the door from a human census-taker. He also repeated the argument that responses are “safe, secure and protected by federal law.”
Those who fail to inform the Census Bureau of their citizenship status probably have little to fear, Mr. von Spakovsky said.
“If the Census Bureau wanted you prosecuted, they’d have to go to Justice and persuade them to pursue a case,” he said. “If I were a prosecutor, I wouldn’t take that case. It’s almost never been enforced, and there are some people who would say, ‘That’s none of the government’s business.’ So that’s not something I’d want to be arguing before a jury.”
Although the reintroduction of the citizenship question has been controversial, it’s not the first time the census has created controversy.
On the eve of the 2010 census, some conservatives reacted to one prospect in much the same way that opponents now rail against the citizenship question.
They feared a Census Bureau contract with left-wing outfit ACORN, which had been signed up to promote the census.
Then-Rep. Michele Bachmann, Minnesota Republican, made headlines in 2009 for saying she would give the minimum amount of information that the Constitution requires.
“I know for my family the only question that we’ll be answering is how many people are in our home. We won’t be answering any information beyond that because the Constitution doesn’t require any information beyond that,” she said at the time.
PolitiFact took up her declaration and professed itself aghast at its ignorance. After noting that the Constitution had no language backing up her claim, PolitiFact stressed the primacy of congressional power.
“What’s more, a law passed by Congress requires people to answer ‘any of the questions on any schedule submitted to him in connection with any Census,’” the fact-checkers wrote before rating Ms. Bachmann’s claim a “pants on fire” lie.
One of the last cases legal scholars recall for a census prosecution was in 1970, when William Steele, part of a vocal group of resisters, was fined $50 for refusing to answer all of the questions.
In his appeal, he argued that plenty of other people had also refused but weren’t as public about it. He found examples of people who had given the same amount of information but weren’t prosecuted.
The appeals court tossed the conviction and cleared his name.
National Review writer William F. Rickenbacker wasn’t as lucky in 1960 when he complained about nosy questions, refused to answer all of them and was convicted. He was ordered to pay a $100 fine, got a 60-day suspended sentence and was put on probation for a day.
Rickenbacker appealed, claiming discriminatory prosecution, but the higher court wasn’t buying it. Just because the government didn’t prosecute everyone didn’t mean it couldn’t prosecute anyone, the court ruled.
• James Varney can be reached at firstname.lastname@example.org.
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