Attorney General Gurbir S. Grewal announced that New Jersey has joined a coalition lawsuit to challenge a Memorandum issued by President Trump this week that would exclude undocumented immigrants counted in the census from state population totals used to apportion seats in the House of Representatives.
The U.S. Constitution requires an “actual Enumeration” of the entire population every ten years, and the 2020 census count is taking place now.
The Fourteenth Amendment more specifically requires that elected representatives be apportioned among the states based on the “whole number of persons” living in each state.
The lawsuit asserts that undocumented immigrants are “persons,” so the “whole number of persons” counted for purposes of apportionment of House seats has always included immigrants, whether documented or not.
“Until this week, no President has denied that the undocumented immigrants who live in our communities are ‘persons’ who must be counted in determining States’ representation in Congress,” Attorney General Grewal said. “The President’s plainly illegal action not only dehumanizes members of our community but also seeks to punish states like New Jersey with larger immigrant populations."
The Secretary of Commerce is scheduled to report state population totals from the census to the President by January 1, 2021.
The state population totals are used to determine how the 435 seats in the House of Representatives are apportioned among the 50 states, as well as how many votes are allocated to each state in the Electoral College.
Filed today in U.S. District Court in New York, the lawsuit joined by Attorney General Grewal alleges that the President’s decision to exclude undocumented immigrants from the totals is likely to:
- Cause some states to lose congressional seats and decrease their share of electors in the Electoral College
- Impair State and local redistricting efforts that rely on the census count
- Reduce federal funding allocated to states by deterring immigrants from responding to the census
By discouraging immigrants from responding to the 2020 census, the complaint contends, the President’s decision also will degrade the overall accuracy of the census data.
The complaint further asserts that Trump’s order is directly related to his Administration’s failed attempt to have a citizenship question included on the 2020 census, is designed to punish states -- like New Jersey-- that have declined to cooperate with the President’s immigration enforcement efforts, and “is motivated by discriminatory animus toward Hispanics and immigrant communities of color.”
According to the Attorney Generals office, New Jersey has a strong interest in preserving the inclusion of undocumented immigrants who are part of its communities in the House apportionment count.
The complaint identifies New Jersey as one of five states with large undocumented immigrant populations and cites a November 2018 Pew Research Center study showing that the state had more than half-a-million undocumented immigrant residents in 2007 and that 475,000 undocumented immigrants resided in New Jersey as of 2016.
"In New Jersey, everybody counts. We have defeated this President’s efforts to undermine that fundamental principle before, and we will do so again,” Attorney General Grewal said.
The lawsuit is being led by New York Attorney General Letitia James.
Along with New Jersey and New York, 18 states, the District of Columbia and more than 10 major cities and counties have joined the lawsuit.