Alabama is seeking to exclude undocumented immigrants in apportioning congressional seats
When the government announced plans last year to ask about citizenship on the 2020 Census, analysts inside and outside the Census Bureau warned it could scare many immigrants from being counted. The question was ultimately blocked by legal challenges.
But the fight over the census citizenship question seems to have been just one skirmish in a larger war over who deserves to be part of America’s democracy. Over the course of Donald Trump’s presidency, administration officials have signaled a desire to fundamentally alter the country’s system of representation, making it far more restrictive than ever before. In doing so, some have alluded to a lawsuit that, even if it fails, may still succeed in shaping the debate over representation.
Filed last year by the state of Alabama and Representative Mo Brooks, Republican of Alabama, against the Commerce Department and the Census Bureau, it argues that the current system of apportioning congressional seats gives an unfair electoral advantage to states with more undocumented immigrants. It says immigrants should not be counted for apportionment or federal funding if they are not in the United States legally, even if they do fill out the decennial survey. A hearing is scheduled for Sept. 6.
The concept is a radical shift from anything the country has done in the past. But it’s in line with public and private statements from some government officials since Trump took office. It comes as the administration has said it will collect citizenship information from administrative records, which could make it easier for the government to estimate the number of undocumented immigrants in the future.
Experts on the Constitution and the census say the Alabama suit is unlikely to succeed, and note that even if it did, it could be impossible to implement the new system in time to affect the 2020 count. But some see it as a strategy to move the needle on the national debate.
‘‘There are no merits to the case,’’ said Thomas Wolf, counsel with the Democracy Program at the Brennan Center for Justice at the New York University School of Law. ‘‘It could be an attempt to normalize a position in the court of public opinion that they can’t win in a court of law . . . That’s why it’s important to make clear how abnormal, un-American, and aberrant these ways of doing things are.’’
Some also question whether the Justice Department will mount a robust defense, especially in light of comments last month by Attorney General William Barr that seemed to suggest the case could succeed.
A federal judge has also expressed doubt over the government’s commitment to defending it, citing this in his decision last year to allow advocates and jurisdictions to join the suit as defendants. And this week, 16 states requested to intervene, referring to Barr’s comments in their request.
Both the Justice and Commerce departments declined to comment for this story.
Alabama’s proposal would overturn a system that has remained largely intact since the decennial count began in 1790. The Fourteenth Amendment, enacted after the Civil War, mandates that representatives be apportioned ‘‘counting the whole number of persons in each State’’ (the Constitution’s original census clause contained similar language but distinguished between free people and slaves, who counted as three-fifths of a person).
According to federal law, the commerce secretary, who is in charge of the Census Bureau, must provide decennial census numbers by the end of the census year — in this case 2020 — to the president, who then reports it to Congress. Apportionment of the country’s 435 House seats and electoral votes is determined by those numbers.
Based on current population estimates, Alabama is projected to lose one congressional seat and one electoral vote. In the scenario proposed by the lawsuit, it would retain its current number of representatives, while states with more undocumented immigrants would lose more seats.
The case hinges on parsing out what the Founders meant by the word ‘‘person’’ or the word ‘‘in.’’ It contends that ‘‘persons in each State’’ does not refer to undocumented immigrants, arguing that the phrase was ‘‘understood at both the Founding and in the Reconstruction era to be restricted to aliens who have been lawfully admitted to the body politic.’’ It argues that ‘‘properly’’ interpreting the laws governing the census and apportionment would mean counting only ‘‘the total of legally present resident population of the United States.’’
It is not the first time these questions have been raised; such debates took place during the drafting of the Constitution and the Fourteenth Amendment, said Terri Ann Lowenthal, a former staff director of the House census oversight subcommittee.
‘‘Congress on multiple occasions . . . has specifically debated whether to change the language from ‘persons’ to ‘citizens’ or ‘voters,’’’ she said. ‘‘Congress was well aware that retaining the word ‘persons’ suggested a universal inclusion of all persons in the United States. They specifically rejected narrowing the universe of people in determining representation.’’
More recently, the Supreme Court ruled in 2016 that the Equal Protection Clause of the Fourteenth Amendment allows states to use total population, not just total voting-eligible population, to draw legislative districts.
Past litigation has left little room for debate, said Justin Levitt, an election law professor at Loyola Law School who was a deputy assistant attorney general in the Department of Justice’s Civil Rights Division from 2015 to 2017.
‘‘You count everybody,’’ he said. ‘‘You count persons in each state, and that is something that we eventually fought a civil war over, as we used to have caveats about that. Everybody gets represented. Literally everybody.’’