Every Person Must Count for Census Reapportionment

Aerial view of a large crowd of people

On Monday, the U.S. Supreme Court will hear oral arguments in Trump v. New York—a case with high stakes about how government representation will be apportioned in the U.S. House of Representatives and the Electoral College for the next decade.

The central question is whether President Trump can unilaterally exclude undocumented immigrants from state population counts produced by the 2020 Census for the purposes of apportionment. The court must also decide whether to hear these claims now or wait until reapportionment is finalized.

On July 21, 2020, Trump announced that, “[f]or the purpose of the reapportionment of Representatives following the 2020 census,” the administration will “exclude from the apportionment base aliens who are not in a lawful immigration status.”

To implement this new policy, the President directed the Secretary of Commerce to produce a second set of population data, separate from the results of the 2020 Census, that would exclude undocumented immigrants.

The July 21 memorandum represents the latest effort by Trump to exclude noncitizens from the apportionment count after his defeat in Department of Commerce v. New York.

In that case, the Supreme Court held that the administration’s attempt to add a citizenship question to the 2020 Census was unlawful because the Trump administration had misled the public about why it was seeking the data.

In an attempt to circumvent that ruling, however, Trump decided to seek citizenship data from other sources. Campaign Legal Center (CLC) has filed lawsuits seeking more information about these sources to ensure a fair count. However, in the meantime, the President has continued to move forward with his plan to exclude undocumented immigrants from the apportionment base.

The President’s recent actions are both unlawful and dangerous. To begin with, the July 21 memorandum conflicts with the Constitution. The Fourteenth Amendment requires that, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.”

Throughout the nation’s history, the federal government has followed that mandate; it has apportioned Congress based on the total number of people residing in each state at the time of the decennial census, regardless of their citizenship or immigration status. Federal statutes also require this approach.

Trump’s plan not only ignores these constitutional and statutory mandates; it also threatens to subvert central principles of our democracy. Basing apportionment on total population is necessary to ensure that the federal government is responsive and accountable to all people in our diverse country.

Elected officials do not simply represent the interests of those who voted for them, but all people in their districts—including children, noncitizens, and individuals denied the right to vote due to mental disabilities or past convictions. 

If left unchecked, the President’s plan will unlawfully alter the composition of Congress and the Electoral College. Excluding undocumented immigrants from the apportionment base will shift seats in the U.S. House of Representatives away from a number of states.

California, for instance, stands to lose two to three House seats. Texas, Arizona, Florida, New York, New Jersey, and Illinois could also lose congressional seats, as a federal court noted. Because a state’s Electoral College votes are determined in part by its seats in the House, this change would also directly impact the outcome of future presidential elections.

In the decision being challenged in this case, the federal district court in New York held that federal law prohibits the President from relying on a second set of data, separate from the Census, to reapportion Congress. It also held that the coalition of states, local governments, and organizations led by New York had standing to bring the case.

A federal district court in California came to the same conclusions and further held that the President’s attempt to exclude undocumented immigrants from the apportionment base violated the Fourteenth Amendment of the Constitution.            

The Supreme Court will have to move quickly. The President is required to transmit the figures for reapportionment to Congress by Jan. 10, 2021.

Importantly, even if the Supreme Court does not reach the merits of the case, and instead rules there is no standing at this stage, the issue will not simply go away. Once the President submits the apportionment figures in January, states will be able to bring suit again to contest the unlawful exclusion of undocumented immigrants in the apportionment count.

The Supreme Court will have to answer the questions presented by this case now or then. And the right answer is clear. As the Constitution and federal law on apportionment require, every person in America—regardless of citizenship or immigration status—must be counted.

Jade is a public interest legal fellow