Counting on chaos: How census miscounts could decide 2024

What if Donald Trump narrowly loses the election due to an unnoticed form of election fraud, later confirmed by U.S. Census data? What if Republicans saw this fraud coming but took no action and haven’t even held hearings to address it?

With Ohio and Florida solidly Republican this generation, Democrats have based their electoral strategy on the “blue wall” of Pennsylvania, Michigan, and Wisconsin. Signs show that migration trends and demographic shifts may have bolstered Republican positions in Sun Belt swing states like Arizona, Nevada, Georgia, and North Carolina.

In a closely divided nation, acts of misconduct — and the GOP’s lack of a long-term strategy to counter them — will shape the course of history.

If Democrats retain the blue wall, Trump would still have 268 electoral votes — just one short of a potential win through a congressional vote. This outcome remains a real possibility. However, what if the states that Trump would likely win, based on clear population data, should actually yield more than 270 votes, even without a single Rust Belt swing state?

The Constitution mandates a census every 10 years to determine each state’s congressional representation. Article II, Section 1, Clause 2, then ties the Electoral College to that state’s congressional delegation based on census reapportionment. But if the census inflated blue state numbers and deflated red state numbers in a closely divided country, it could change the balance of power in Congress and potentially determine the next president.

Based on the census report used for reapportionment, which estimated the population as of April 1, 2020, Texas gained two congressional seats, while Colorado, Florida, Montana, North Carolina, and Oregon each gained one. Meanwhile, California, Illinois, Michigan, New York, Ohio, Pennsylvania, and West Virginia each lost a congressional seat, reducing their electoral votes for president. Although this shift benefited Republicans overall, many believed it still didn’t capture the massive migration from blue states to red states, especially in the Sun Belt.

In a bombshell 2022 report that should have sparked a fierce congressional debate, the Census Bureau admitted to overcounting in eight states and undercounting in six by unprecedented error margins. Five of the six undercounted states were red, and six of the eight overcounted states were blue, with the largest errors affecting red states on both sides. Here are the error rates:

• Undercounted states
  Arkansas (-5.04%), Florida (-3.48%), Illinois (-1.97%), Mississippi (-4.11%), Tennessee (-4.78%), Texas (-1.92%)
• Overcounted states
  Delaware (+5.45%), Hawaii (+6.79%), Massachusetts (+2.24%), Minnesota (+3.84%), New York (+3.44%), Ohio (+1.49%), Rhode Island (+5.05%), Utah (+2.59%)

In raw population terms, the largest errors disadvantaged red states and favored blue states:

1. Florida (-761,094)
2. Texas (-560,319)
3. Tennessee (-330,628)

What was the result of these errors? As Hans von Spakovsky from the Heritage Foundation noted, “Due to these errors, Florida did not receive two additional congressional seats, Texas lost out on one seat, while Minnesota and Rhode Island each retained a seat they should have lost, and Colorado gained an undeserved new seat.”

It’s hard to predict how an accurate count would have affected congressional district boundaries, making it difficult to assess the partisan control of Congress. However, in the Electoral College, if Trump wins the Sun Belt swing states and Harris carries the Rust Belt swing states, instead of Trump losing 270-268, he would win 271-267. The data shows Trump could win with just the Sun Belt. And House control could hinge on a few districts that may have been distorted by Biden’s erroneous census certification.

Why didn’t Republicans hold hearings to investigate this error? In the previous census, there was an overcount of only 36,000 people nationwide, a negligible 0.01% that didn’t affect any state’s reapportionment. Doesn’t anyone want to understand the cause of such a significant error, especially one so favorable to Democrats?

While options for redress in 2022 were limited, Republicans had two years before the next presidential election to challenge the Biden administration’s decision. The apportionment clause grants Congress the authority to direct the census “in such manner as they shall by law direct.”

With control of Congress in 2023, House Republicans could have held hearings to clarify the correct apportionment and added legislation to budget bills mandating a compromise between the original numbers and the revised count starting in 2024.

Though a legal battle would likely follow, the Supreme Court ruled in Utah v. Evans (2002) that the census clause doesn’t forbid using statistical methods to enhance accuracy beyond a direct count.

This error isn’t the only factor giving Democrats an artificial advantage. Even before the recent surge in illegal immigration, estimates suggested California held an extra five seats in the House due to its population of illegal aliens. When Trump tried to exclude undocumented immigrants from the census count, the courts blocked his efforts. But when Biden’s inaccurate count favored blue states, officials claimed there was no legal recourse.

It’s disheartening and ironic to reflect on our founding and see how the framers believed the census would be one of the least politicized issues. In Federalist No. 36, Alexander Hamilton wrote, “An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression.”

Today, self-evident truths are often distorted, making it easy for the government to manipulate data with bias and unfairness. In a closely divided nation, these acts of misconduct — and the GOP’s lack of a long-term strategy to counter them — will shape the course of history.