JULY 28, 2020
President Donald Trump’s memorandum to exclude undocumented immigrants from congressional apportionment may be bittersweet to dozens of Hill Republicans — it’s been a party priority for years but may hurt the states they represent.
More than 40 Republicans in the House and four in the Senate represent the three largest states likely to be affected by the memo: California, Texas and Florida. Those states have more than 4.5 million undocumented immigrants, according to the most recently available Pew Research Center estimate, and could stand to lose congressional seats or not gain enough after the 2021 reapportionment.
“In essence, to the extent that voting representation is determined by people that are here out of status, it’s sort of a Catch-22, because it would hurt Florida to the extent we have [undocumented immigrants], but at the same time it dilutes the representation of people that are here legally and eligible to vote,” Sen. Marco Rubio, R-Fla., said in an interview.
When Trump issued the memorandum last week, he argued that including undocumented immigrants in the apportionment count dilutes the representation of citizens.
“Just as we do not give political power to people who are here temporarily, we should not give political power to people who should not be here at all,” Trump said in a statement.
But the Constitution and census statute make no distinction between citizens and noncitizens in regards to the count.
Three federal lawsuits have already been filed over Trump’s memo, and the federal judges overseeing an additional two ongoing suits have asked or allowed litigants to address the memorandum.
In the meantime, Republicans may have to vote on measures related to Trump’s memorandum before the courts wrangle with its merits. Rep. Grace Meng, D-N.Y., has introduced a standalone bill to reverse the memo’s order. She told CQ Roll Call she plans to offer a similar measure as an amendment to the spending bill for the Commerce Department, which oversees the Census Bureau.
“For me this is not just about congressional seats or political power. This is basically saying all human beings are equal,” Meng said.
Democrats previously sought to use spending bills to ban the administration’s attempt to add a citizenship question to the census. House leadership has scheduled a floor vote this week on the Commerce-Science-Justice spending bill, which includes a reversal of an executive order Trump made last year to gather citizenship data using administrative records.
While some Republicans acknowledged it may hurt their states, they also said they’re willing to live with it. Texas Rep. Chip Roy said he thinks the administration is on solid ground — but admitted it could end up shortchanging the state as a result.
“Obviously, we want to be making sure Texas is well represented, but at the end of the day, we also need to be thoughtful about making sure we’re apportioning based on citizens and people legally present,” Roy said in an interview.
Similarly, Rep. Brian Mast, R-Fla., argued that undocumented immigrants should be in the process for removal, not included in apportionment totals.
“You could play that on a number of different ways, to find positives and negatives anywhere,” Mast said. “But they’re not the legal population. They should be under adjudication to be removed or sent back to their country of origin, rather. And if that’s the case then they shouldn’t be counted in a 10-year census.”
Republicans in Alabama have prioritized excluding undocumented immigrants from apportionment for years, and the state has an ongoing federal suit seeking to force the change in 2018. There, the state argued it may lose its seventh congressional seat in 2020 because of undocumented immigrants in states like California.
Exactly how many seats would be affected is hard to gauge, according to reapportionment expert Kim Brace of Election Data Services. He pointed out that Trump’s memorandum gets at a different segment of the population than the citizenship question — and the data the Census Bureau is collecting as a result of last year’s president’s executive order on citizenship data.
“So anything that was done last year, like my study [on the noncitizen population] and everything else, hasn’t gone far enough to really exclude, to the extent that Trump is trying to do, all of the [undocumented immigrants] here,” Brace said.
Pew came out with its own estimate of the change last week, and it showed that Texas, Florida and California stand to lose a seat they would have otherwise been entitled to following apportionment as a result of Trump’s executive memorandum.
The Department of Homeland Security and private groups like Pew have published estimates of the undocumented population in the past, but that may not cut it. Brace pointed out that a 1999 Supreme Court decision mandates that apportionment use the actual count of persons in the United States, without sampling.
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