This article is the final entry in a symposium previewing Trump v. New York.
Nina Perales is vice president of litigation for the Mexican American Legal Defense and Educational Fund and counsel in La Union del Pueblo Entero v. Trump, a related case currently pending in the U.S. District Court for the District of Maryland.
President Donald Trump’s July 2020 memorandum, “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census,” followed his unsuccessful attempt to add a citizenship question to the decennial census questionnaire. After the Supreme Court blocked the census citizenship question in June 2019, Trump asked the Census Bureau to create a citizenship dataset using other government records. When it became clear the Census Bureau would not produce that dataset before the end of his first term in office, Trump shifted to a third plan — the apportionment memorandum.
The apportionment memorandum allows Trump to shift political power across the country while he is still in office – by re-allocating U.S. House seats in a process that begins in December 2020.
The memorandum goes hand in hand with its predecessors — the census citizenship question and the census citizenship dataset. What the three initiatives have in common is best described by the late Republican strategist Thomas Hofeller, who explained that the exclusion of non-U.S. citizens from apportionment would be politically “advantageous to … Non-Hispanic Whites.”
However, the advantage of time conferred by the apportionment memorandum is sacrificed by the memorandum’s illegality. Its requirement that the commerce secretary depart from census data to create a second set of population numbers, and the president’s plan to report those non-census numbers to Congress as the apportionment count, violate two federal statutes as well as the U.S. Constitution.
Article 1, section 2, of the Constitution requires an “actual Enumeration” of the population every 10 years “in such Manner as [Congress] shall by Law direct,” so that congressional representatives may be “apportioned among the several States.” Section 2 of the 14th Amendment further requires that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State[.]”
As part of its responsibility to direct the “manner” in which the census is conducted, Congress enacted two statutes requiring that the apportionment numbers (1) be based on decennial census data and (2) include the total number of persons in each state.
13 U.S.C. § 141(b) provides: “The tabulation of total population … as required for the apportionment of Representatives in Congress … shall be … reported by the [Commerce] Secretary to the President of the United States.” 2 U.S.C. § 2a provides: “[T]he President shall transmit to the Congress a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population[.]” Trump’s apportionment memorandum violates both statutes.
The Trump administration’s argument that “whole persons” means “inhabitants” does not save the apportionment memorandum. The term “inhabitant” plainly means a person who lives in a particular place. People who lack authorized immigration status live in the homes where they were counted in the 2020 census. Indeed, the typical adult immigrant who lacks authorized immigration status has lived in the United States for 15 years, making it hard to pretend unauthorized individuals lack “enduring tie[s]” to their communities. The Census Bureau’s rules also require that these immigrants are counted, along with everyone else, “at their usual residence, which is the place where they live and sleep most of the time.”
Nevertheless, the apportionment memorandum excludes individuals who, although lacking the rights of U.S. citizens and authorized immigrants, are undoubtedly “whole persons” living in the United States. In this way, the memorandum raises the specter of the infamous three-fifths rule, under which our Constitution – prior to the 14th Amendment – mandated that enslaved persons be counted as three-fifths of free individuals for the purposes of congressional apportionment, thus increasing the political power of slavery states.
The apportionment memorandum not only illegally excludes immigrants living in the country without authorization from the apportionment count, it uses them as the stalking horses to mask its nakedly political goal – to reduce representation in Congress, and the Electoral College, of all the people living in states with the largest Latino populations.
Draped in the language of immigration enforcement (the apportionment memorandum talks about individuals “who are not in a lawful immigration status” and promoting “respect for the law”), the memorandum singles out California and asserts that its residents should properly lose “two or three” congressional seats. When California loses “two or three” congressional seats, many millions of not undocumented people also lose representation.
Although not mentioned in the memorandum, Texas and Florida follow California in the list of states with large undocumented populations and are the next most likely to lose congressional representation if Trump is allowed to implement the new apportionment policy.
Stripping representation from Texas, California and Florida does not punish them based on political affiliation (at least based on 2020 general election results). What these states have in common is something different; they contain the largest Latino populations in the U.S. Together, they contain 16.6 million Latinos eligible to vote – more than half of all the Latinos eligible to vote in the U.S.
Latinos are now the largest minority in the U.S., and the Latino population is growing quickly. Similarly, Asian Americans are the fastest growing minority in the U.S. The state with the largest Asian American population and largest Latino population is (wait for it) California.
To add insult to injury, there is simply no way to say how many people without “lawful immigration status” live in each state, which means implementation of the apportionment memorandum (and the ensuing harm to states) will be based on speculation. There is no count of individuals who lack immigration status to subtract from state total populations provided by the Census Bureau. No other records, individually or collectively, accurately capture lack of immigration status for people living in the U.S. The apportionment memorandum doesn’t even define who is “not in a lawful immigration status,” leaving the Census Bureau without any guidance on how to classify the hundreds of thousands of people in the U.S. who are between statuses, have transitional status, or who are neither documented nor undocumented.
Even an attempt to count a sub-group of immigrants without documentation, such as those currently held in federal immigration detention, will be biased as well as inaccurate. Immigrants are not detained in their states of residence, and immigration detention centers are not evenly distributed across the country. Texas, which contains the largest number of Immigration and Customs Enforcement detention centers and detained immigrants, will be the big loser in any attempt to exclude detained immigrants from congressional apportionment.
It doesn’t take much for a state to lose a congressional seat. After the 2000 census, North Carolina won the 435th seat in the House of Representatives because it beat out Utah by 856 people. In 2010, North Carolina fell short of a new seat by nearly 15,800 people, and the seat went to Minnesota.
The apportionment memorandum’s attempt to manipulate census numbers, combined with the fact that it cannot be implemented with any degree of accuracy, reveals the memorandum for what it is: a bald attempt to shift congressional representation, and national political power, away from states with large Latino populations, and lock in that theft of power for the next decade.
Recommended Citation: Nina Perales, Symposium: A not-at-all disguised attempt to shift power away from Latino voters, SCOTUSblog (Nov. 28, 2020, 1:53 PM), https://www.scotusblog.com/2020/11/symposium-a-not-at-all-disguised-attempt-to-shift-power-away-from-latino-voters/