President Donald Trump, thanks to a perhaps congenital inability to stop running his mouth, may ultimately undermine his administration’s effort to corrupt the integrity of the upcoming 2020 Census. His latest blurting out that the reason for his wanting to add a controversial question about citizenship status to the Census form is for “redistricting” could be a major red flag for even right-wing Supreme Court justices.
But should the now majority right-wing Supreme Court ultimately rule in the administration’s favor and permit such a question — an action which experts say could lead to millions of immigrants declining to fill out the form, leading to an unjustified increase in Republican-leaning Congressional districts for the next decade — there is still a way to fight back.
Imagine if millions of US citizens concerned about this willful corruption of the accuracy of the Census, and the resulting false count of the US population for redistricting purposes, and for the important allocation of federal aid to the states, were to simply check the box on the completely anonymous Census form claiming that they are not US citizens.
Would that be illegal? Technically yes. Refusing to answer a Census question and providing a false answer are listed as minor federal crimes carrying fines , respectively, of $100 and $500. But weigh those relatively small maximum penalties against the likelihood of being caught, or even prosecuted? According to Danny Cervallas, a legal analyst at MSNBC, the chance of being prosecuted is almost non-existent. First of all, the forms are by law anonymous, and so tracking you down would require a major effort (one which could be legally challenged, too, of course). Second, there would be a complication in trying to bring such a case, individually or as a conspiracy, since the law forbids using a Census document as evidence of a crime without the consent of the person who filled out the form, on the grounds that it would violate the Fifth Amendment against self-incrimination.
As well, the government would have a major problem in trying to prove beyond a reasonable doubt that any individual had deliberately “lied” or provided false answers on the form, rather than simply making a mistake in checking the wrong box. After all, that’s something we all (including judges themselves) have done inadvertently on SAT exams, postal forwarding forms, subscription renewal forms, etc.
Cervallas notes too that there is a history of Republican office holders, including former Sen. Trent Lott (R-MS) and President George Bush, offering support for those who might not answer anything beyond basic information about their names and the number of people in their household on the forms. As Lott notoriously said, if people felt that “their privacy is being invaded by those (additional) questions, they (could) choose not to answer those questions.”
So in deciding to answer falsely any question about citizenship which one felt on principle was improper and violative of the intent of the Census (which the Constitution says must count all “persons” in the country, not all “citizens”) you would be in good company. In fact, even in advocating that others similarly give a false answer to that question, one would also be in good company.
Obviously if there were a large-scale nationwide protest against the politically motivated question about citizenship, with millions or tens of millions of us either leaving the answer to that question blank or answering falsely, thus encouraging more undocumented immigrants to go ahead and complete the forms, also ignoring that question, prosecution would be all the more unlikely since there would be safety in numbers. It would be devilishly hard if not impossible for the government to prosecute so many people, each of whom could plead the Fifth Amendment and refuse to allow their form into evidence!
So be prepared. If the Trump administration ultimately gets its way and puts a citizenship question on this upcoming 2020 US Census form, you know what to do to protect the integrity of the latest national population count.
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