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New dispute over immigrants

The state of Louisiana, in a broad new challenge to the role of undocumented immigrants in American society, asked the Supreme Court on Monday to rule that those who are in the country illegally should not be counted in the ten-year national census, at least for purposes of deciding how to divide up seats in the U.S. House of Representatives.  In a lawsuit filed directly in the Court, without prior action in lower courts, the state contended that it has been denied one potential seat in the House because illegal immigrants are counted in census totals, putting Louisiana at a disadvantage in House apportionment.  The first step in the case of Louisiana v. Bryson (140 Original) is for the Court to decide whether to allow the lawsuit to go forward in the Court, presumably after hearing from the federal government.

Census figures on population are used to divide up the 435 seats in the House among the states.   Louisiana contended in the new lawsuit that “the 2010 Census apportionment figures include millions of individuals who are non-immigrant foreign nationals and who are not, as a matter of federal law, permanent residents of any state.”  Because the immigrants are not distributed uniformly among the states, the state contended, states with large populations of those aliens get more House seats “at the expense of states containing relatively few,” such as Louisiana.

As a result, Louisiana said, at least five states will lose House seats “to which they are entitled,” while at least three states will gain seats “to which they are not entitled.”   Louisiana contended that, if illegal immigrants were excluded from the count for 2010, Louisiana would be entitled to seven House seats.   The government, however, has concluded that “Louisiana is due only six,” the state said.

The result of these disparities, Louisiana said, is that the votes of its citizens are worth less “in terms of electoral power” than in a state like California, with a large population of undocumented aliens.  Here is how that comes about, according to Louisiana’s lawsuit: a state with a small population of illegal aliens winds up with a greater proportion of eligible voters per district, because fewer of its residents are deducted from the voting population.  The state illustrated the point with these figures: 748,160 voting-age individuals in Louisiana will elect a Representative in each district in the state, while only 656,452 Californians are needed to elect a member of the House in each district in that state.  That is a nearly 14 percent decrease in Louisiana’s electoral power, the state said.

Not only does this result in a state like Louisiana losing House seats to a state like California, the lawsuit argued, but it also diminishes Louisiana’s comparative voting strength in the Electoral College, which chooses the President.   Each state’s electoral vote in the “College” reflects the number of members it has in the House, plus its two members of the Senate.

On the merits of its challenge, Louisiana contended that the Constitution’s command that there be a census of the people refers to individuals with a permanent legal residence within a state, not to all “persons” who may be living in the state including those who are illegally there.   The Constitution does not permit counting in the census of tourists temporarily in the country, nor does it allow the counting of corporate “persons,” Louisiana said, so it should not include others lacking legal residential status.

It has been only since the 20th Century, the lawsuit argued, that the words of the Constitution referring to those who were to be counted included non-immigrant foreign nationals who, under federal law, do not qualify as permanent legal residents of any state.  While the lawsuit thus challenges any inclusion of undocumented immigrants in the census, Louisiana’s actual goal in the case is to block their counting only for purposes of House apportionment.

Louisiana asked the Court, if it takes on the case for a trial (presumably before a Court-appointed special master), to wind up with a decision ordering the Census Bureau not to count non-immigrant foreign nationals in dividing up the seats in the House.  The government, it added, should also be required to adjust the 2010 population figures for purposes of House apportionment to exclude undocumented immigrants.   If the existing allotment of House seats has been passed out formally to any state, the lawsuit argued, the Court should order that such certificates be recalled.

While immigration issues have been roiling the political world in recent years,  and while state legislatures have been moving sometimes aggressively to try to force undocumented aliens to leave their states, the Court only recently has been drawn more deeply into the controversy.  This is the first time, however, that a state has gone directly to the Court with a fresh lawsuit, seeking to exclude undocumented immigrants entirely from being a part of the national political community by leaving them out of census counting to make sure they don’t affect House seat allotments.

The lawsuit raises three questions:

1. Do the clauses in Article I and the 14th Amendment regarding House apportionment bar the counting of “non-immigrant foreign nationals” for purposes of dividing up House seats.

2. Does their counting for that purpose deprive states like Louisiana of their right to equal representation in proportion to their population in Congress and in the Electoral College, in violation of the constitutional requirement that Representatives be chosen by “the people.”

3. Whether the counting of such individuals for apportionment purposes “dilutes the strength of a voter’s ballot in states” with few undocumented immigrants, in violation of equal protection guarantees under the Fifth Amendment.

Recommended Citation: Lyle Denniston, New dispute over immigrants, SCOTUSblog (Nov. 15, 2011, 12:10 AM),