Plot to Shake Up Census on Track for Supreme Court Redux

This Aug. 26 photo from the Crow Indian Reservation in Lodge Grass, Montana, shows Lauri Dawn Kindness, left, helping a family participate in the U.S. census as part of a campaign to increase Native American turnout. (AP Photo/Matthew Brown, File)

WASHINGTON (CN) — President Donald Trump faces an uncertain path in taking his election challenge to the U.S. Supreme Court, but his bid to dramatically change the census will take center stage Monday at oral arguments.

A ruling in his favor could allow the White House to exclude undocumented immigrants from the count used to apportion seats in Congress.

Trump’s efforts met with defeat, however, from the last court to consider the case. In September, a three-judge panel with the Southern District of New York found called his changes “an unlawful exercise of the authority granted to the president.”

The case erupted months earlier when Trump announced that he would order the Commerce Department to exclude undocumented immigrants in the census reporting used to determine states’ seats in the House of Representatives. Population counts have been conducted regardless of immigration status for hundreds of years, and Trump’s proposal abruptly changes that.

Joined by nearly 20 states, 10 cities and five counties, New York Attorney General Letitia James claim in the underlying lawsuit that Trump’s plan harkens back to slavery-era rules from 150 years ago that limited which “persons” were counted for political purposes.

The Supreme Court took up the case in October, over a year after the court unanimously overruled the Trump administration’s last census shakeup, which sought to add a citizenship question to the decennial poll.

Some 30 briefs from friends of the court have been filed in the case by entities like the U.S. House of Representatives and a group of former Census Bureau directors.

Pillsbury Law partner Blaine Green, who filed an amicus brief for the League of Women Voters of the United States, told Courthouse News that the stakes in this case are high.

“The Constitution expressly requires that ‘representatives be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state,’” Green said in an email. “By contravening the Constitution’s clear apportionment mandate, the memorandum — if implemented — would erode trust in our Constitutional system, democracy and the rule of law.”

Green emphasized that the case is about representative democracy and political power.  

“If immigrants are excluded [from the apportionment base], then those states with the largest populations of undocumented immigrants are likely to lose seats in the House of Representatives,” Green wrote. “This would undermine the representative nature of our democracy, shifting representation and power away from states with more immigrants.” 

States with the greatest immigrant populations, California and Texas, would be most likely to lose one or more seats in the House of Representatives, and Green said New York, Florida and New Jersey could also see losses.

But the ramifications would be felt by residents throughout these states as the number of seats a geographic area holds in Congress would correspond to a change in federal funding.

“When a state is underrepresented in Congress, all its constituents — regardless of immigration status — suffer from having to ‘share’ their representative and federal resource allocation with more of their neighbors than do residents of other states,” Green said.

In light of the Covid-19 pandemic, the lawyer added, federal funding for locally administered programs is especially important.

“At least 300 programs created by Congress rely on census-specific data to apportion approximately $800 billion dollars annually to state and local governments,” Green wrote. “This includes federally funded health, housing, and education programs that are critical to supporting the needs of local communities.”

The White House has defended its proposal as “more consonant with the principles of representative democracy.”

“Affording congressional representation, and therefore formal political influence, to states on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles,” Trump wrote in July.

In the months since the case has developed, conservative Justice Amy Coney Barrett has replaced the late liberal Justice Ruth Bader Ginsburg.

The Department of Justice did not immediately respond to a request for comment on this case nor did plaintiff attorney Dale Ho, with the American Civil Liberties Union.

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