Hawaii and Coalition of States Argue to Include Undocumented Immigrants in Census

New York Solicitor General Barbara D. Underwood gave an oral argument before the U.S. Supreme Court on behalf of the coalition of states (that includes Hawaii) explaining that excluding undocumented immigrants from the apportionment base would lead to the loss of congressional seats and presidential electors in the Electoral College, especially for immigrant-rich states, and degrade the quality of census data that states and local jurisdictions rely on to perform critical governmental functions. Additionally, excluding immigrants would reduce the resources available to state and local jurisdictions.

The Trump Administration has repeatedly attempted to violate basic constitutional and statutory commands by wanting to leave millions of undocumented immigrants out of the apportionment base of the 2020 Decennial Census.

The coalition of states argued that the administration must count the “whole number of persons” residing in the country for apportionment — as the U.S. Constitution and the Census Act unambiguously require.

“The Federal Government’s position is contrary to the U.S. Constitution and the Census Act,” said Hawaii Attorney General Clare Connors. “Excluding undocumented immigrants destabilizes the structure of our democracy and has immediate impacts on critical state government functions.”

In July, a coalition of states, cities, and counties — led by New York Attorney General Letitia James — filed a lawsuit against President Trump, Secretary of Commerce Wilbur Ross, and others after they announced that they would leave millions of undocumented immigrants out of the apportionment base that follows the decennial census count.

The U.S. Constitution and the Census Act clearly state that, for purposes of apportioning members of the House of Representatives among the states, every person residing in the U.S. on Census Day — or April 1 this past year —must be counted. But in July, President Trump declared in a presidential memorandum that he intended to exclude undocumented immigrants from the apportionment base — the first time such action has been taken in the nation’s history.

When the framers made this change, they could have chosen to add language that would allow undocumented immigrants to be left out of the apportionment base, but they didn’t. Since that time, more than 150 years of history, practice, and judicial and administrative precedents have since established that the apportionment of representatives must be based on all persons living in each state, regardless of their citizenship or immigration status.

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