Press Releases
07/24/2020
AG Tong Sues to Protect Full and Fair Census Count
Trump Order Illegally Seeks to Exclude Undocumented Immigrants from Census, Congressional Apportionment
(Hartford, CT) – Attorney General William Tong today sued President Donald Trump seeking to block his unconstitutional executive order excluding undocumented immigrants from the census. The order would illegally erase millions of people from the apportionment base used to determine the number of members each state receives in the U.S. House of Representatives.
The lawsuit aims to ensure the administration counts the “whole number of persons” residing in the country for apportionment, as the U.S. Constitution unambiguously requires.
“The Constitution requires counting all ‘persons’ in the census. Immigrants are people. End of story. This order is a naked attempt to deny full representation and funding for states that welcome immigrants and for communities of color. It is unequivocally unconstitutional and must be blocked,” said Attorney General Tong.
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.
The Fourteenth Amendment to 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 the plaintiffs 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.
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.
The coalition specifically argues 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. The coalition asks 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.
Joining Attorney General Tong in filing today’s lawsuit are the attorneys general of Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia. The attorneys general are joined by the cities of Central Falls, RI; Chicago, IL; Columbus, OH; New York, NY; Philadelphia, PA; Phoenix, AZ; Pittsburgh, PA; Providence, RI; Seattle, WA; and the city and county of San Francisco. Additionally, Cameron, El Paso, and Hidalgo Counties in Texas and Monterey County in California has joined the lawsuit. The lawsuit is being led by New York Attorney General Leticia James.
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