A group of Latinx voters and a Latinx advocacy group filed a lawsuit Tuesday in the Northern District of Alabama seeking to compel the Department of Commerce to use an “actual Enumeration” of the population in assigning seats in the House of Representatives and Electoral College votes.

The voters reside in California, Florida, Arizona and Texas; CPLC, the advocacy group, is based in Phoenix, Arizona. The counties that the voters come from range from 9 percent to 30.6 percent non-US citizen.

The plaintiffs allege that the Department of Commerce will exclude undocumented immigrants from the total population count by using statistical modeling as opposed to an “actual Enumeration,” as required by Article 1 Section 2 of the US Constitution.

The Census Act permits the Secretary of Commerce to allow the use of statistical sampling to carry out the census except for when it is used “for purposes of apportionment of Representatives in Congress.”

The American Community Survey is carried out by the Census Bureau on an ongoing basis and provides statistics on citizenship based on sampling. However, the survey does not have a question on the legal status of non-citizens. Additionally, the Census itself will not have a question on the citizenship of the respondents and those in their household. Therefore, by carrying out the Census there will be no “actual Enumeration” of the non-citizen population or of undocumented immigrants.

Executive Order 13880 asks the Department of Commerce to use these statistics to determine the number of non-citizens in the country. The Department, by reporting an enumeration altered by these statistics, the complaint alleges, would not be an “actual Enumeration.”

The complainants are asking for the court to declare that the use of this altered tabulation is unconstitutional and asks for an injunction to stop the use of the altered tabulation.

This complaint follows the Trump administration’s signaling that it will break with over 200 years of precedent in how seats are divided in the House of Representatives.