Janai Nelson has posted this draft on SSRN (forthcoming, Columbia Law Review). Here is the abstract:
The constitutionally-mandated decennial enumeration of the U.S. population is indispensable to the equitable distribution of political and economic resources. As we approach the 2020 Census, however, several factors converge that both undermine how we count change in communities of color and compete with shifting demographics and power dynamics that make an accurate accounting especially urgent — most notably the threatened inclusion of a citizenship question on the Census short form. By 2045, the population of the United States is on pace to comprise a majority-minority plurality — in which no single racial or ethnic group constitutes a majority but people of color, collectively, outnumber whites. Counting that change accurately will help determine the appropriate allocation of the resources most needed to serve an evolving American populace. This Article considers the historical context of undercounting people of color in the United States, the mounting stakes of their continued numerical diminution, and certain policy and pragmatic measures to disrupt the effects of a compromised Census. Premised on a theory of representational equality in which all our country’s residents “are to be counted — and served — as constituents”, it provides a comprehensive assessment of the centrality of the Census to our democracy in an effort to ensure that we do not discount the diversity that makes this country the greatest and most promising democratic experiment still.