This is the third of five articles by Professor Brian Glassman on the 2020 General Election. This week has a dual theme: “What’s Now: the Census—Accurate, Complete, and Non-Partisan” and “Exercising Your Right to Vote—During a Pandemic.”
You can read more about Professor Glassman below.
Important Dates to Track:
10/12/20—early in-person voting in Georgia begins. For additional voting information, go to https://gcvoters.org/vote/
What’s Now: the Census—Accurate, Complete, and Non-Partisan
Why is so much attention being paid to the census during this presidential election year?
The short answer: because the census is conducted once every 10 years, and this year is one such instance (the first census was conducted in 1790). The longer answer: unlike in prior years, there are concerns about the politicization of the census this year. Those concerns resulted in a Supreme Court decision in 2019, but continue to the present. Why should there be a reason for such politicization? Because the results of the census determine: 1) political representation in the United States House of Representatives, and 2) the amount of federal money to be distributed to each state (in total, over $1 trillion annually).
The Constitution requires that a census be conducted every 10 years. Article 1, Section 2, Clause 3. Note that the Constitution does not mandate the counting only of U.S. citizens. Rather, Congress wanted a picture of all “persons” living in the United States, regardless of citizenship status. 14th Amendment, Section 2. Having this information, being able to see population shifts, would enable Congress to imagine our country’s future, and plan for it.
Note also that the Constitution required an “actual enumeration,” not a statistical sample, because the former provides a more accurate picture. And with methodological advances, the census count should be more accurate each time it’s conducted.
The Secretary of Commerce has been charged with the responsibility of conducting the census. The Secretary, in turn, looks to the U.S. Census Bureau to actually carry out the work.
Fast forward to the present day, when the Trump Administration sought to add a citizenship question to the census. Numerous written communications involving Administration officials strongly suggested an improper political motive: to undercount immigrant communities.
The Supreme Court resolved–or thought it had resolved–the issue of a citizenship question on the census in its June 2019 decision in the case of Department of Commerce v. New York. There, the Court concluded that the Trump administration’s stated reasons for wanting to include a citizenship question on the census appeared “contrived,” and that it had not advanced a proper reason for having such a question on the census. Game over, right? Not so. Since that ruling, the Trump administration has tried various methods of circumventing it. Those attempts have resulted in multiple federal lawsuits, some of which are pending.
How should the Census Bureau conduct the census in a pandemic? Logic dictates that it would take longer than usual to do so, especially since the pandemic delayed the normal start date for obtaining information from respondents by the traditional method of census takers going door-to-door. At first, all seemed to be in agreement that the Census Bureau would need more time to do its work. But then in July, the Bureau abruptly announced that it would conclude its work earlier than planned, on September 30th. That proposed action also brought lawsuits in federal courts. As of this writing, a federal judge in California has, on a preliminary basis, ordered the Census Bureau to continue counting until October 31st—and the Administration is resisting that order.
The job of counting during a pandemic is particularly difficult, for many reasons. People have greater concerns than responding to the census. Others, not wanting to risk infection, may be fearful of answering the door. Still others have changed their residences due to financial difficulties: not being able to afford the mortgage or the rent, or relocating to take another job. All of this is in addition to those who are referred to as the “difficult to count.” These Americans may be homeless, or may be living with others, either family or friends, on a temporary basis.
The very best that the census can be is accurate, complete, and non-partisan. The numbers need to be right, so that political power and federal funds can be properly distributed – – for the next 10 years. For that reason, it’s essential for Americans to participate in the census. One simple way is to complete the online questionnaire at 2020census.gov. It only takes about 10 minutes. Don’t delay; it’s anything but clear what will happen in the next round of litigation over this critical issue.
Exercising Your Right to Vote—During a Pandemic
Before the pandemic, I used to like to vote in person, on Election Day. My polling location was a community center nearby. I could walk there. The lines were never long. I could put my paper ballot through the scanner, and feel confident that my vote was counted. Finally, I would get my “I voted” sticker, which I would wear during the rest of the school day– hoping that that message would encourage or remind my students to vote.
But now we live in the time when a pandemic – – the worst in over 100 years – – continues to take a heavy toll on the health of America. As a result, many things need to be different, and voting is no exception. Voting by mail is by far the safest option, since doing so generally does not require coming into contact with other persons (a significant number of persons—voters and poll workers—contracted COVID-19 as a result of having to vote in person in the Wisconsin primary on April 7). If you feel comfortable voting by mail, great. But not everyone does, because many states, not used to administering vote-by-mail (or at least not in great volume), have had difficulty shifting to the vote-by-mail option.
To my mind, the second safest option is to vote early in person- -as early as possible. If you do so, you are likely to encounter fewer people at the polls. That could also mean that you will encounter fewer people outside polling stations, because lines should be shorter. All of this is good for you, for other voters, and for poll workers. There is one other benefit to voting early, whether in person or by absentee ballot: if problems do occur with the receipt or counting of your ballot, you will have time to correct those problems, so that you won’t have to vote provisionally on November 3rd.
Voting early, whether in person or by mail, is I what I term “spread out the vote.” Voting early will take pressure off the polling locations that will inevitably occur on November 3rd. That, too, is a critical consideration, since that should help produce a vote count that is more complete and accurate.
For me, the least attractive option is to vote in person on Election Day, November 3rd. Lines are likely to be longer, and voters, poll workers, and the system generally are likely to be more stressed. The historical precedent of the 1918 Spanish Flu pandemic is instructive. Although proactive public health measures were in place in certain parts of the United States, they were relaxed for the November 1918 election. After the election, the infection- and death rates climbed, which many scientists attribute to the relaxation of those measures. Finally, as previously mentioned, voting on November 3rd affords little if any opportunity for correcting system errors that might prevent you from voting.
Since states are in charge of the voting process for both state and federal elections, an accurate source of information is the Secretary of State’s webpage for the state in which you live (in Georgia, that’s sos.ga.gov). There you’ll find information on how to register and how to vote. Voting rules, of course, vary by state. In Georgia, October 5th is the deadline for registering to vote in the November 3, 2020 general election. And early in-person voting in Georgia begins on October 12th.
If you need additional assistance about voting, be a smart consumer in deciding which information to follow. Use only the most trusted sources. One such source is the non-partisan League of Women Voters.
Finally, as important as voting is, there’s one additional thing you can do: work at the polls! On average, poll workers are about 70 years old. Because this older population is particularly vulnerable to coronavirus, many who would otherwise be working at the polls on November 3rd have opted out. It’s critically important for young people to step up and take their place. Numerous organizations are making it easier for young Americans to learn where and how they can help during this election season. Organizations such as Power the Polls, Rock the Vote, and Poll Hero are working hard to get out the word and instruct young Americans about how they can aid the electoral process in this critical way, at this critical moment.
Perhaps more than ever, the United States needs a complete and accurate count of both the census and the vote in November 2020. You can do your part, not only by responding to the census and casting your ballot, but by working to ensure that these fundamental components of our representative democracy continue to function as originally designed.
Professor, Cleveland-Marshall College of Law
Brian Glassman taught full time for 27 years at the Cleveland-Marshall College of Law before transitioning to part-time professor this year. He conceived of, organized, and moderated a conference, “Election Integrity in a Time of Political Polarization: Gerrymandering, Redistricting Commissions, and the 2020 Census Citizenship Question,” hosted by Cleveland-Marshall in October 2019. He also spoke at the Law Dean’s virtual Town Hall on “Elections, Coronavirus, and the 2020 Census” in April 2020. Currently, he is working on voting rights issues for organizations committed to free and fair elections. On September 24, 2020, he co-presented with Allegra Lawrence-Hardy, Esq., legal counsel for the voting rights organization Fair Fight Action, at a Cleveland-Marshall virtual event titled “Racial Discrimination in Voting.”
Prof. Glassman received his B.A. from Connecticut College, and his J.D. from the Boston University School of Law.