Why should states that protect illegal immigrants be rewarded with more political power?

Alabama has filed an unprecedented but little-noticed lawsuit against the U.S. Census Bureau. If the state wins, it could have major political ramifications and restore fundamental fairness in political representation in Congress.

Alabama is arguing that by including illegal immigrants in its count of the population, the Census Bureau deprives the state – and other states with low numbers of illegal immigrants – of representation in the U.S. House of Representatives, as well as votes in the Electoral College that determine who is elected president.

Conversely, the lawsuit argues, the practice of counting illegal immigrants in the census gives states that protect them (California, for example) seats and votes they are not entitled to have.

The 14th Amendment to the Constitution provides that representatives in the House “shall be apportioned among the several States … according to their respective Numbers,” with the “Numbers” determined by “counting the whole number of persons in each State.”

After every census, House seats are reapportioned according to the population of each state. Electoral College votes are reapportioned according to the number of each state’s congressional representatives.

Alabama is right about the unfairness of the current system. Illegal immigrants, by definition, have no right to be in this country. It is unjust to allow states to gain a political advantage over other states by flouting federal immigration law.

The number of representatives in the House – 435 – has been fixed by law since 1910. So as Alabama says in its complaint, apportionment is “a zero sum proposition: Each state’s gain is another state’s loss.”

Alabama argues that by including illegal immigrants in apportionment, congressional seats and Electoral College votes are unfairly distributed.

Based on the 2010 Census, Louisiana, Missouri, and Ohio each lost a seat in the House and a vote in the Electoral College, while Montana failed to gain a seat and an electoral vote. By contrast, California gained two House seats and two Electoral College votes. And Florida and Texas each gained one seat and one vote.

As a result, says Alabama in its lawsuit: “four House seats and four Electoral College votes were redistributed by the inclusion of illegal aliens in the apportionment base in the 2000 Census.”

Alabama claims that including illegal immigrants in the 2020 Census will likely cause it to lose a congressional seat and an Electoral College vote. It says this “will rob the State of Alabama and its legal residents of their rightful share of representation.”

This also violates the “one person, one vote” equal representation standard of the 14th Amendment. According to Alabama, “the gains from including illegal aliens in the apportionment base flow to citizens who live in state with large numbers of illegal aliens.”

Why? Because it means that “in a state in which a large share of the population cannot vote, those who do vote count more than those who live in states where a larger share of the population is made up of American citizens.”

This results in “representational inequality” by devaluing the vote of Alabama’s legal residents. This redistribution of political power “disincentivizes states with large illegal alien populations from cooperating with federal immigration authorities (lest they lose political power that comes with additional representatives and votes in the Electoral College),” Alabama argues.

Moreover, including illegal immigrants in the census “punishes states who (sic) do cooperate with federal immigration authorities in the identification and removal” of illegal aliens, Alabama’s lawsuit states.

Alabama’s final complaint is monetary. Including illegal immigrants in the census, it says, will likely cause it to lose its fair share of the almost $700 billion distributed annually by the federal government in grants and other funds.

The key to Alabama’s case is the definition of “persons” who should be counted and thus used in apportionment. Alabama argues that the term “persons” was understood at the “time of the founding and when the 14th Amendment was ratified” to mean the “inhabitants” of a state.

Furthermore, “in the public law of the founding era, the term ‘inhabitant’ did not encompass unlawful residents because inhabitance was a legal status that depended upon permission to settle granted by the sovereign nation in which an alien wished to reside,” Alabama argues.

In other words, “persons” does not include individuals who are in the U.S. illegally, without the permission of the federal government.

The “Residence” rule adopted by the Census Bureau for the 2020 census stipulates that foreign nationals will be counted and allocated to the state where their “usual residence” is located, regardless of whether they are legally present.

Alabama argues that the rule is unconstitutional. Moreover, it claims, the rule violates the Administrative Procedure Act because it is “arbitrary and capricious” and exceeds the Census Bureau’s statutory authority.

The last time the Supreme Court had a significant case involving the census was in 1999 in Department of Commerce v. U.S. House of Representatives. The justices concluded that the Census Bureau had to do an actual count of the population – it could not use statistical sampling.

In 2015 the Supreme Court held that states could use total population numbers – which includes illegal immigrants – in drawing the boundaries of legislative districts. But that case was about redistricting, not apportionment.

Does Alabama have a case? That will largely depend on whether it can convince the Supreme Court that its understanding of the historical definition of “persons” in the apportionment clause of the Constitution is correct. This is not an issue the Court has addressed before.

But regardless of the ultimate resolution of this novel legal argument, Alabama is right about the unfairness of the current system. Illegal immigrants, by definition, have no right to be in this country. It is unjust to allow states to gain a political advantage over other states by flouting federal immigration law, as California has done with its sanctuary policies and obstruction of federal enforcement.