Census urged to exclude undocumented immigrants in congressional seat count

Deborah Barfield Berry | USA TODAY

WASHINGTON — Alabama’s attorney general urged Congress Friday to support the state's push for the Census not to count undocumented immigrants when deciding the number of congressional seats for each state.

Steve Marshall, who recently filed a lawsuit on behalf of the state, said Alabama stands to lose one of seven congressional seats and one of its nine electoral votes if undocumented immigrants aren't excluded from the apportionment process.

“Not only would this skewed result rob the state of Alabama and its legal residents of their rightful share of representation, but it plainly undermines the rule of law," Marshall told the House Judiciary’s subcommittee on Constitution and Civil Justice. “If an individual’s presence in our country is in violation of federal law, the question is why should the states which they reside benefit from their illegal status.”

The subcommittee held a hearing on questions about the 2020 Census, including the lawsuit filed by Alabama and Rep. Mo Brooks, R-Ala.

The issue is one of several subjects of recent hearings as the Census Bureau prepares for the upcoming decennial. The population survey is key to determining the distribution of federal funds.

One controversial issue is the bureau’s recent decision to add a question about citizenship to the Census.

Rep. Steve King, R-Iowa, chairman of the subcommittee, said he’s encouraged that the Trump administration has added the question.

“I hope we continue working toward a 2020 Census that accurately represents the American people,” he said.

Democrats and civil rights group have criticized the decision.

Rep. Jerrold Nadler, D-N.Y., said the administration's decision to add a citizenship question was "done in bad faith'' and that its intent is to frighten people in immigrant communities from participating in count.

Tennessee Rep. Steve Cohen, the top Democrat on the subcommittee, said the impact would be devastating for states and cities with large immigrant populations.

“What we’re talking about simply is power,’’ he said.

Cohen noted at least six lawsuits from states and advocacy groups are challenging the addition of the question.

Alabama filed its lawsuit in federal court last month.

Marshall said other states, including Ohio, could also lose seats while California would keep a seat it wouldn’t have been able to if undocumented immigrants weren’t counted.

He said several states, including Louisiana, lost seats after the 2010 count.

“We’ve chosen to be proactive on this issue," he said.

But civil rights groups argue apportionment is based on a count of all residents in a state and that the 14th Amendment was enacted in part to undo a provision that counted slaves as three-fifth of a person.

“Efforts to exclude some residents from this clear constitutional mandate evoke a shameful and long-discarded historical legacy,” Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, said in a submitted statement.

Gupta called the citizenship question and the Alabama lawsuit an “assault on the Constitution.”

Brooks and Marshall said they don’t expect Congress to change the Constitution, but hope to garner support from federal officials.

“My hope is that the Trump administration will recognize that we’re right and agree to it,” Brooks said. “They can fight us or they can concur ... We’ll have to see what approach they take.’’

Marshall said he expects to hear from the Justice Department by next month.

He said Congress could press the Census Bureau to reexamine the issue. “Within their role of congressional oversight they can make it known that that they want that issue considered,’’ he said.

Marshall supports the addition of the citizenship question, but is pushing more narrowly for undocumented immigrants not to be counted in apportionment and electoral college determinations.

He and other supporters argue states that have a larger immigrant population and support sanctuary cities have an advantage.

Marcia Johnson-Blanco, co-director of the Voting Rights Project Lawyers' Committee for Civil Rights Under Law, said Congress should focus on getting an accurate count.

“The constitutional mandate is to count everyone,’’ she said. “The focus of this administration and the Congress should be on addressing the factors that contribute to the under count of minorities rather than advocating for untested questions that undermine full participation in the Census.”