Old wine in new wine skins? Alabama challenges counting noncitizens for redistricting

The summer fight over the census citizenship question continues. After the Supreme Court ruled that the Commerce Department could not include a question about citizenship, the state of Alabama fired a new shot in a larger war over who counts in American democracy.

In Alabama v. United States Department of Commerce, the state of Alabama and Rep. Mo Brooks (R-Ala.) argue that the current system of apportioning congressional seats gives an unfair electoral advantage to states with more undocumented immigrants because it will deprive Alabama of its “rightful share of political representation,” as well as cause the state to lose a congressional seat and an electoral vote to a state with a higher number of undocumented individuals. The state contends that counting undocumented individuals violates the Constitution’s provisions governing congressional apportionment and the electoral college, as well as the federal government’s constitutional duty to conduct an “actual enumeration” of the population. The state is asking the court, among other things, to bar the Bureau from pursuing a total population count for apportioning congressional seats and electoral votes and to declare unconstitutional any apportionment of seats and votes based on total population.

Meanwhile, a coalition of 15 states led by New York is intervening in the lawsuit to defend the Census Bureau’s longstanding method of counting immigrants and citizens alike for apportionment. Attorneys for the coalition, headed by the New York state attorney general’s office, say they were prompted in part to intervene by comments in July from U.S. Attorney General William Barr that raised questions about whether the Trump administration would fully defend the bureau in the lawsuit.

The question of “who counts” has long held theoretical interest for political scientists and citizenship and immigration scholars. During the Trump administration, government officials have signaled a desire to change the country’s system of representation by limiting the total population to Citizen Age Voting Population or CVAP. The effect of doing so would be to limit the political representation of noncitizens and to reduce the public funding for programs in communities containing significant numbers of immigrants. Such an effort could be assisted by President Trump’s executive order on collecting citizenship data.

A joint statement on the status of the Alabama case was filed on September 3 for a hearing about how discovery should proceed in the case. The judge’s formal order is still pending.

MHC