President Trump signed a memorandum on Tuesday that would prevent undocumented immigrants from being counted when congressional districts are redrawn after the 2020 Census.
California and other states with large populations of undocumented immigrants would lose seats in Congress if Trump’s memorandum is enforced.
Census experts and immigration lawyers say the action is legally dubious. In theory, it would benefit the Republican Party by eliminating the largely non-white population of migrants in the U.S. illegally, creating voting districts that skew more white.
“Including these illegal aliens in the population of the state for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated,” the Trump memo states.
Responses from Democrats and immigration advocates were swift and condemnatory.
“The Trump Administration’s attempt to circumvent the law and exclude immigrants among those counted in the 2020 Census is unconscionable and unconstitutional,” said California Senate President Pro Tem Toni Atkins of San Diego. “It also is a gross misinterpretation of the Fourteenth Amendment, which requires that representatives be apportioned according to the number of persons, all people, living in each state.”
Dale Ho, an attorney with the American Civil Liberties Union, vowed, “We’ll see (Trum0) in court, and win.”
Tom Perez, chairman of the Democratic National Committee, derided what he viewed as an “unconstitutional order that has no purpose other than to silence and disempower Latino voices and communities of color.”
Proponents of citizens-only voting districts argue each vote should carry the same weight. If one district has far fewer eligible voters than another, they say, each vote there has more influence on election outcomes.
But the move carries major legal questions.
While the U.S. Supreme Court has left the door open for citizen-based voting maps for state legislatures, experts see it as a long-shot at the federal level, because the U.S. Constitution explicitly says that congressional districts must be based on “the whole number of persons” in each district. Before the Civil War, slaves were counted toward congressional representation.
In the memo, Trump said the word “persons” “has never been understood to include … every individual physically present within a state’s boundaries.”
Census experts say that is wrong: multiple federal laws have reinforced that apportionment must include everyone, and U.S. Supreme Court precedent has endorsed that view, said Joshua Geltzer, a constitutional law expert and professor at Georgetown Law.
“All of this makes Trump’s position outrageous,” Geltzer said.
Trump’s past efforts to use the Census to identify and limit the political power of undocumented immigrants have faced roadblocks.
In 2018, the administration said it would ask respondents whether they were citizens, a move ultimately nixed by the Supreme Court.
Reuters contributed to this article.
