Counting Illegal Aliens in Census Unfairly Rewards Sanctuary States, GOP Congressmen Tell Supreme Court

November 8, 2020 Updated: November 9, 2020

Three Republican congressmen are urging the Supreme Court to exclude illegal aliens from the 2020 Census count so their numbers can’t be used to allocate congressional seats and Electoral College votes that determine the election of the president.

There are enough illegal aliens in the United States to encompass anywhere from 15 to 33 seats in the U.S. House of Representatives and an equivalent number of Electoral College votes, the congressmen argue in a brief.

The Trump administration wants to keep illegal aliens out of the census count to prevent them from having an impact on the apportionment of political power among the states. The high court’s eventual ruling in the case could have widespread, national ramifications.

States and local governments, including so-called sanctuary jurisdictions, which refuse to cooperate with federal immigration officials, sued to prevent the administration’s plan from moving forward. They argued that President Donald Trump, a Republican, was attempting to interfere with the count and prevent Democratic-leaning areas with large illegal-alien populations from gaining congressional seats.

Oral arguments in the case, known as Trump v. New York, are scheduled for Nov. 30.

Because various Census-related deadlines are approaching, time is of the essence, Reps. Mo Brooks, Bradley Byrne, and Robert Aderholt, all of whom represent Alabama districts, argue in a friend-of-the-court brief filed with the high court.

The litigation “is one of the most consequential cases to ever come before the U.S. Supreme Court,” Brooks said in a statement.

“It quite literally will determine America’s future for decades to come. Including illegal aliens (who, by definition, are transients and not residents of any state) in the census apportionment count undermines 14th Amendment Equal Protection, one-person, one-vote principles.”

“There are anywhere from 11 million (2010 Census estimate) to 25 million illegal aliens in America (no one knows for sure),” he said.

“Those numbers equate to roughly 15 to 33 Congressional seats and Electoral College votes unconstitutionally taken from law-abiding, low-illegal alien population states like Alabama and shifted to high-illegal alien population, sanctuary states like California,” Brooks said.

“Sanctuary states that flout federal law and therefore have high illegal alien populations should not be rewarded for their lawlessness.”

He added, “The U.S. Supreme Court has a consequential decision to make. Will it support lawlessness or will it support the Rule of Law and Equal Protection, one-person, one-vote principles that have been the backbone of federal redistributing law for many decades?”

Federal law states that the secretary of Commerce must send the Census count to the president by Dec. 31, and that in turn, the president must send Congress the figures for allocating House seats by Jan. 10.

A three-judge panel of federal judges in the Southern District of New York found Sept. 10 that Congress never provided the president with the authority to exclude illegal aliens from the Census count. A federal judge in the Northern District of California also ruled on Oct. 22 against the Trump administration on the issue.

The congressmen argue in the brief that including illegal aliens in the count will reward states with large illegal alien populations at the expense of those states with smaller illegal alien populations.

“If illegal aliens are counted in the apportionment base following the 2020 Census, it is likely that one seat will be reapportioned away from Alabama to a state with a larger population of illegal aliens,” the brief states.

This would leave Alabama with “with six seats in the House and eight votes in the Electoral College. In contrast, if illegal aliens are not counted in the apportionment base, it is likely that Alabama will retain its seven seats in the House and nine votes in the Electoral College.”

There has been a mountain of litigation launched over the 2020 Census; this isn’t the first Census-related case that has made it to the Supreme Court in the Trump era.

On June 27, 2019, in Department of Commerce v. New York, the court rejected on a 5–4 vote the administration’s rationale for asking individuals responding to the 2020 Census whether they were U.S. citizens, even though the question had been asked many times before in the decennial headcount.

Backed by the four liberal justices, Chief Justice John Roberts rejected Commerce Secretary Wilbur Ross’s claim that the citizenship question was needed to gather data to help enforce the Voting Rights Act, writing that the rationale “seems to have been contrived.”

One of those justices, Ruth Bader Ginsburg, a liberal, died Sept. 18, and was replaced by Amy Coney Barrett, a constitutional conservative.