Originally Published in The Washington Post
Tara Rahmanpour - July 24, 2020
The American Civil Liberties Union, New York Civil Liberties Union, ACLU of Texas, and the law firm Arnold & Porter followed suit on Friday, filing a federal lawsuit on behalf of immigrants’ rights groups. The suit, New York Immigration Coalition v. Trump, was filed in U.S. District Court in the Southern District of New York.
New York Attorney General Letitia James, backed by 21 attorneys general across the country, also filed a suit Friday on behalf of a coalition of states, cities, and counties.
The suits were filed in response to a memorandum signed by the president Tuesday that called for an unprecedented change in how House seats are apportioned.
The Common Cause suit seeks an immediate injunction against the president, as well as the Commerce Department, Secretary of Commerce Wilbur Ross, and the Clerk of the House of Representatives.
It describes the memorandum as “the culmination of a years-long effort to transfer political power en masse from voters of color — chiefly, but not exclusively, Latino voters — to ‘Republicans and non-Hispanic whites.’ ”
Dale Ho, director of the ACLU’s Voting Rights Project, who successfully argued the U.S. Supreme Court case blocking the Trump administration from attempting to add a citizenship question to the 2020 Census, said the latest directive is in line with that attempt. “Trump tried once to weaponize the census against immigrant communities, and failed,” he said. “He will fail again.”
James called Trump’s order “another election-year tactic to fire up his base by dehumanizing immigrants and using them as scapegoats for his failures as a leader. . . . No one ceases to be a person because they lack documentation.”
Legal experts say it is unconstitutional and illegal to exclude anyone living in the United States from representation, since the Constitution requires that seats be apportioned based on the “whole number of persons in each state.”
The ACLU lawsuit notes that “every decennial census in our nation’s history has included every person who lives in the United States, regardless of citizenship or immigration status, for purposes of apportioning congressional representation. Defendant Trump’s new ‘policy’ set forth in the memorandum therefore not only violates the plain and unequivocal text of Section 2 of the Fourteenth Amendment and related Supreme Court precedent, it also departs from hundreds of years of consistent census practice.”
But even if it is likely the directive would lose in court, it is necessary to seek an immediate block to the directive because it could affect the 2020 Census count that is underway, said Kathay Feng, Common Cause’s national director of redistricting and representation.
“It could affect response because most immigrant families have a mix of people of different status,” she said.
The directive could also affect the Census Bureau’s process in deciding which households to go to, Feng said. Instead of attempting to count every household in the United States, she said, the bureau could “only go to households which they think fall into the category that the president wants counted.”
The White House referred a request for comment to the Justice Department. The Justice and Commerce departments did not respond to requests for comment.
Data from the decennial census is used to determine $1.5 trillion a year in federal funding, congressional apportionment, and redistricting.
After conducting the decennial census, the bureau delivers population data to the president, who then delivers it to Congress. The data is due to the president by Dec. 31, but the 2020 Census schedule has been delayed because of the coronavirus pandemic, and the administration has asked Congress for an additional four months to deliver the data. A House relief bill allows for the delay, but it is not clear whether the Senate will approve it.
Delivering a population count to Congress that does not reflect the actual U.S. population would have a negative ripple effect throughout the country, said Keshia Morris Desir, Common Cause’s census and mass incarceration project manager.
“When our neighbors aren’t represented and included in all counts, entire communities lose out,” she said in a statement. “Towns and cities across the country would be deprived of vital resources — public schools, firetrucks, and COVID-19 recovery — if millions of families are erased from census counts through the Administration’s attempted end-run around the United States Constitution.”
The Common Cause complaint charges the administration with violating the constitutional requirement that every resident be counted in the census and included for reapportioning congressional districts. It also says the directive violates the equal protection guarantees of the Fifth and Fourteenth amendments by diluting a voter’s vote based on place of residency, and by discriminating on the basis of race, ethnicity, and national origin.
In addition to Common Cause, the plaintiffs in that suit include the cities of Atlanta and Patterson, New Jersey, the Partnership for the Advancement of New Americans, a refugee advocacy nonprofit, and individual Latino, African American, Asian American and other voters.
Plaintiffs in the New York lawsuit are the New York Immigration Coalition, Make the Road New York, CASA, American-Arab Anti-Discrimination Committee, ADC Research Institute, and FIEL Houston.
The Mexican American Legal Defense and Educational Fund has also said it will sue the administration over Tuesday’s directive.
Democratic lawmakers have introduced legislation against the directive and the House Oversight Committee plans to hold an emergency hearing over it next week.