Herring joins coalition opposing Trump’s newest ploy to undermine the 2020 census

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Attorney General Mark R. Herring joined a large coalition of states, cities, and counties in filing a lawsuit against President Donald Trump for attempting to leave millions out of the population that is counted establishing the number of members in the House of Representatives that each state receives.

The lawsuit seeks to stop the Trump administration from politicizing the census and violating basic constitutional commands, and instead aims to ensure the administration counts the “whole number of persons” residing in the country for apportionment, as the U.S. Constitution unambiguously requires.

Previously, Herring successfully blocked the Trump Administration’s attempts to sabotage the census with a poison pill citizenship inquiry that was clearly designed to suppress response rates especially among immigrant communities. Herring and his colleagues sued the Department of Commerce in April 2018 to protect the census, and successfully argued that the Trump Administration was not being honest about its motivations for including a citizenship question.

“This is now the second time that the Trump Administration has tried to undermine and sabotage the census,” said Herring. “The number of Congressional representatives a state has is directly tied to that state’s population and every single person living in Virginia and every other state deserves to be counted and represented in Congress. I will not allow the Trump Administration to get away with its blatantly illegal politicization of the census and attempts to manipulate Congressional representation.”

The Constitution is abundantly clear: For purposes of apportioning members of the House of Representatives among the states, every person residing in the U.S. during the census, regardless of legal status, must be counted. But, this past Tuesday, July 21, 2020, President Trump declared, in a presidential memorandum, his intent to exclude undocumented immigrants from the apportionment base — the first time such action has been taken in our nation’s history.

This week’s effort by President Trump and his administration to exclude undocumented immigrants from the apportionment base is just the latest in the Trump Administration’s illegal maneuvers to manipulate the census count and congressional apportionment. In 2018, Secretary Ross directed the Census Bureau to use the 2020 Decennial Census to demand information on the citizenship status of every resident in the country.

After a legal battle that made its way through multiple federal courts last year, the U.S. Supreme Court ruled in favor of Attorney General Herring and his colleagues and prohibited the Trump Administration from adding a citizenship question to the census. But the president’s proclamation this week lays bare the real reason driving the addition of a citizenship question to the census: To exclude undocumented persons from the “whole number of persons” that constitutes the apportionment base and to discriminate against Hispanics and noncitizens.

The Fourteenth Amendment clearly states that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State…” The framers of the Fourteenth Amendment deliberately chose the phrase “whole number of persons” to refer to all persons living in each state — including the entire immigrant population. In fact, as James Madison explained at this country’s founding, the “fundamental principle” of the Constitution ensures that “the aggregate number of representatives allotted to the several states, is to be…founded on the aggregate number of inhabitants.

More than 200 years of history, practice, and judicial and administrative precedents have since established that the apportionment of representatives must be based on all persons living in each state, regardless of their citizenship or immigration status.

Finally, until the president’s announcement this week, even other members of his administration have acknowledged that apportionment must be based on all persons. The person tasked with overseeing the census — Secretary Ross — testified under oath last year during a congressional committee hearing that “The constitutional mandate, sir, for the census is to try to count every person residing in the U.S. at their place of residence on the dates when the census is conducted” — making no mention of an individual’s legal status.

In the lawsuit — filed against President Trump, the U.S. Department of Commerce, the U.S. Census Bureau, Commerce Secretary Wilbur Ross, and Census Director Steven Dillingham, and joined by 21 attorneys general, nine cities, four counties, and one combined city and county — the coalition argues that apportionment based on a population count that unlawfully excludes undocumented immigrants will:

  • Lead to the loss of congressional seats and presidential electors in the Electoral College,
  • Skew the division of electoral districts within jurisdictions by impairing state and local redistricting efforts that rely on the census count,
  • Reduce federal funds to state and local jurisdictions by deterring immigrants from responding to the decennial census that is currently underway, and
  • Degrade the quality of census data that states and local jurisdictions rely on to perform critical governmental functions.

Herring and his colleagues also make clear in today’s lawsuit that public statements and actions by President Trump and his administration have established that the rationale for excluding undocumented immigrants from the apportionment base has always been motivated by racial animus against immigrants of color, and a desire to curb the political power of immigrant communities of color.

The president’s memorandum explicitly states that the Trump Administration’s goal is to reduce political influence and congressional representation to jurisdictions with a larger share of undocumented immigrants. Further, the president’s announcement is clearly intended to promote fear and deter participation in the census by immigrants and their families, as it comes just weeks before enumerators are scheduled to go into the field to encourage households to respond to the census.

Herring and his colleagues specifically argue that the exclusion of undocumented immigrants from the apportionment base violates the Fourteenth Amendment; the Due Process Clause of the Fifth Amendment; the Tenth Amendment; and the Administrative Procedure Act, by being both contrary to law and arbitrary and capricious. Additionally, this exclusion conflicts with long-recognized Supreme Court precedent.

James and the coalition ask the court to force the president and his administration to hold to their obligation to base congressional apportionment on “the whole number of persons in each state” and to forbid them from excluding undocumented immigrants — or any other person — from the apportionment base.


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