The Corner

To Answer or Not to Answer the Census – That Is the Question

I have been deluged lately with requests asking me whether one has to answer all of the questions on the 2010 Census, particularly those about race and ethnic background. Like Mark Krikorian, I don’t like those questions and don’t think the U.S. government should be collecting that information – its only use is to continue to separate us on racial grounds, for reapportionment purposes and for certain government programs.

Mark has said that he is going to answer “American” on the race question. I have always been tempted to answer “Native American,” since I was born and raised here. However, people need to understand that they may incur a legal liability if they use such answers or don’t answer questions at all.

In Article I, Section 2, the Constitution says that an “Enumeration” must be conducted every ten years “in such Manner as [Congress] shall by Law direct.” Congress has directed through a federal law that anyone who “refuses or willfully neglects…to answer, to the best of his knowledge, any of the questions” on the Census form can be fined $100 (13 U.S.C. § 221).  If you deliberately give a false answer, you can be fined up to $500. 

Although there are not a lot of reported prosecutions, this statutory requirement has been upheld by the courts as constitutional.  There is even a 1970 court decision from Delaware holding that there is a separate violation for each question you don’t answer. So, on this year’s ten-question Census form, you could be fined as much $1,000 — $5,000 if you refuse to answer or deliberately give false answers. If there was a mass refusal by millions of Americans to answer parts of the form – like the race question – the U.S. Justice Department would not have the resources to prosecute everyone who violated the law. But you could be prosecuted and fined, and there is a court decision from New York (which the Supreme Court refused to review) holding that a conviction for violating this law is valid even if there were other persons who also refused to fill out the form but were not prosecuted. (One curious exception to that: The liberal Ninth Circuit reversed a conviction when it was shown that the defendant might have been targeted due to his publicly held “dissident” view that the Census is an unconstitutional invasion of privacy.)

Everyone should realize that if you don’t complete a Census form, you are violating federal law. The chances of actual prosecution may be remote, but it could happen. The only real answer to this problem is for Congress to prohibit the Census Bureau from collecting such information and to make all government programs (and the reapportionment process) explicitly race-neutral.

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