WASHINGTON – The Immigration Reform Law Institute (IRLI) is representing Kansas in an important case, filed today on behalf of five states, challenging the counting of illegal aliens in the census for purposes of apportionment.
Apportionment is the process in which each state is allotted a number of congressional districts and electoral votes based on its population as measured by the census. If the census includes illegal aliens (as the 2020 census did), states with high numbers of illegal aliens, such as California, end up getting extra congressional seats and electoral votes, and states with low numbers of illegal aliens, such as those that are plaintiffs here, end up losing congressional seats and electoral votes.
The Constitution requires “the whole number of persons in each State” to be counted in the census. But the states show in their complaint that this language does not mean that all people physically present in each state must be counted. Foreign tourists present in a state are not, and should not be, counted in the census. And military personnel stationed abroad, who are not physically in a state, may be counted.
The states also make the crucial, uncontestable point that when a person—whether a voter or a non-voter, such as a child—is counted in the census for apportionment, that person receives representation in our national government, including the House of Representatives. But only members of the American people, that is, our national political community, should be given representation in our national government. And illegal aliens, as the Supreme Court and other federal courts have held, are neither part of the American people nor members of our national political community. It follows by simple logic that they should not be counted for apportionment purposes.
“It is crystal clear that our national government should represent the American people, and no one else,” said Christopher Hajec, director of litigation of IRLI. “And court after court has held that illegal aliens are not part of the American people. And if they are not part of the American people, counting them weakens the voting power of Americans in many states compared with the voting power of Americans in other states. This lawsuit needs to succeed not only to preserve the true meaning of the Constitution, but to protect the voting rights of Americans.”
“The importance of this case can hardly be overstated,” said Dale L. Wilcox, executive director and general counsel of IRLI. “When illegal aliens are few and far between, whether they are counted in the census doesn’t really matter. But when millions of them are concentrated in some states more than others, counting them gives political power to foreigners who choose to come here in violation of our laws, and takes power from Americans. The illegal presence of millions and millions of foreign nationals within our borders must never be allowed to tip the balance of power in Congress, or determine a presidential election.”
The case is Louisiana v. U.S. Dept. of Commerce, 6:25-cv-00076 (S.D. La.).
