Supreme Court Considers Merits of Illegal Alien Census Exclusion

November 4, 2020

IRLI shows that counting illegal aliens abridges voting rights of Americans

WASHINGTON—Last Friday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the Supreme Court in support of President Trump’s decision not to include illegal aliens in the apportionment count of the census. A special three-judge panel in Manhattan district court had held that Trump’s decision was unlawful. The Supreme Court now is reviewing the merits of that ruling.

By law, the President is required to apportion seats in the House of Representatives among the states based on census figures, an apportionment that in turn determines how many electoral votes states receive. If illegal aliens were included in the number that the President used for apportionment, states such as New York, California, and Texas would have more representatives and electoral votes, and states such as Ohio, Indiana, and Alabama would have fewer, than they would if illegal aliens were not included.

The Constitution requires “the whole number of persons in each State” to be counted in the census. But IRLI shows in its brief that this language does not mean that all people physically present in each state must be counted. Foreign tourists present in a state are not, and should not be, counted in the census. And military personnel stationed abroad, who are not physically in a state, may be counted.

IRLI also makes the crucial, uncontestable point that when a person—whether a voter or a non-voter, such as a child—is counted in the census for apportionment, that person receives representation in our national government, including the House of Representatives. IRLI goes on to argue that 1) only members of the American people, that is, our national political community, should be given representation in our national government, and 2) illegal aliens, as the Supreme Court and other federal courts have held, are neither part of the American people nor members of our national political community. It follows by simple logic that they should not be counted for apportionment purposes.

IRLI further shows that, because illegal aliens are not part of the people, counting them results in the dilution of people’s votes in many states, in violation of the Constitution.

“It is crystal clear that our national government should represent the American people, and no one else,” said Dale L. Wilcox, executive director and general counsel of IRLI. “And court after court has held that illegal aliens are not part of the American people. And if they are not part of the American people, counting them weakens the voting power of Americans in many states compared with the voting power of Americans in other states. The Supreme Court should reverse the district court panel not only to preserve the true meaning of the Constitution, but to allow the President to protect the voting rights of Americans.”

The case is Trump v. New York, No. 20-366 (Supreme Court).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]