States fight to keep certain immigrants out of census counts

Ohio Attorney General Dave Yost has joined Ohio with three other states in a federal lawsuit seeking to keep certain immigrants from being counted in the U.S. Census including those in the country illegally and those with temporary visas.

The case was filed in U.S. District Court on Jan. 17 and also includes the attorneys general from Louisiana, West Virginia and Kansas.

Yost and the other state legal chiefs – filing the action against the U.S. Department of Commerce and the U.S. Census Bureau (an agency within the Commerce department) – say a residence rule that allows foreign nationals living in the U.S. to be counted in the decennial census resulted in 2020 Census figures that “included illegal aliens and aliens holding temporary visas” to determine apportionment for U.S. House districts and Electoral College representatives.

Since the first U.S. Census in 1790, counts that include both citizens and noncitizens have been used in the census and no count has left out residents due to immigration status. For decades, the hard-line Federation for American Immigration Reform has been fighting to stop that, and President Donald Trump attempted to exclude unauthorized immigrants from the census count during his first administration.

Reapportionment is the process of dividing up congressional seats among the states based on the census numbers, which then leads to the congressional redistricting that lays out the district lines for those representatives.

The rules on counting residents of a state say that citizens of other countries who are living in the U.S. are counted at the “U.S. residence where they live and sleep most of the time.”

“Due to this unlawful decision, Plaintiff State Ohio lost one congressional seat and one electoral vote in the reapportionment conducted pursuant to the 2020 Census,” the lawsuit states. “That congressional seat and electoral vote were reallocated to a state with a larger illegal alien and nonimmigrant alien population.”

The states in the lawsuit say in allowing the count as the “residence rule” does, the Census Bureau is in violation of the 14th Amendment, thus “robbing the people of the Plaintiff States of their rightful share of political representation, while systematically redistributing political power to states with high numbers of illegal aliens and nonimmigrant aliens.”

“Including illegal aliens in the apportionment base is inconsistent with the text of the Fourteenth Amendment because illegal aliens and nonimmigrant aliens are not inhabitants of the states,” the attorneys general stated.

Yost told the Capital Journal in a Wednesday statement that the situation at the U.S. border was also part of the problem that resulted in Ohio’s loss of representation.

“After failing to secure the border, the federal government reallocated Ohioan’s democratic representation to sanctuary states like California with a larger illegal alien and nonimmigrant alien population.” Yost said. “I am fighting for Ohioans’ voices and the rule of law.”

The Congressional redistricting process in Ohio following the 2020 Census was fraught.

The Ohio Redistricting Commission adopted two different congressional maps, both of which were found to be unconstitutionally partisan by the Ohio Supreme Court. The most recently adopted map stayed active, however, and was the map used for the last two election cycles.

The map will be up for redrawing this year because it was not adopted with bipartisan agreement. Ohio’s redistricting law states that a map passed without bipartisan agreement only lasts four years, whereas bipartisan agreement allows the map to last 10 years.

Legislators have until the end of September to agree on a redrawn map. If legislators as a whole can’t agree and pass a map, it’s again up to the Ohio Redistricting Commission to adopt a map, since an effort to eliminate the commission and introduce a citizen-led process failed in the November general election.

West Virginia also lost a congressional seat and vote on the Electoral College, according to new lawsuit, and if residents living in the state illegally or through temporary means continue to be allowed “each of the other Plaintiff States is likely to lose a congressional seat and an electoral vote in the 2030 reapportionment.”

California, Illinois, Michigan, Pennsylvania and New York were listed as other states who lost a U.S. House seat and an Electoral College vote, though they are not parties in the lawsuit. Colorado, Florida, North Carolina, Montana and Oregon were mentioned as states who gained a House seat, along with Texas who gained two seats.

The states in the lawsuit also argue they are being deprived of federal funding that could be provided to them based on their population, if the census data was changed. The suit cites Pew Research Center data from 2021, which found that Ohio’s illegal immigrant population makes up 1% of the total population.

The attorneys general harken back to the country’s founding and the Reconstruction Era for their interpretation of the constitutional obligation to count the number of people in each state.

The lawsuit argues the Founding Fathers and those around in the years following the Civil War understood the phrase “persons in each State” to be “restricted to United States citizens and permanent resident aliens who had been lawfully admitted to the body politic constituted by the Constitution.”

“Representatives and electors represent only the self-governing people of the United States, their descendants, and aliens whom the people of the United States have chosen to admit to the political community created by the Constitution through lawful immigration by granting them lawful permanent resident status,” the attorneys stated.

Ohio, Louisiana, West Virginia and Kansas asked the court to vacate the residence rule as it pertains to counting illegal immigrants or temporary visa holders in the decennial census, and to order the Census Bureau and the Department of Commerce to include questions about citizenship in the 2030 census.