President Trump signed a memorandum last week that would preclude undocumented immigrants from being counted towards the appointment of congressional seats. The administration’s plan to count only citizens in this portion of the 2020 Census almost certainly will not survive legal challenges from state governments. Indeed, the Constitution, in Article I, Section 2, makes clear why: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons.”
In other words, the count must include all residents, not just citizens. The only time in American history when not all residents were counted for the census was prior to the Civil War — when slaves, who could not vote, were counted as three-fifths of a person.
No doubt, there’s a political dimension behind Trump’s proposed approach. A Pew Research Center analysis concludes that states with fewer immigrants, such as Ohio, likely will retain congressional seats they otherwise might lose should Trump prevail. But this is not to say that the administration does not, implicitly, make an important point. Because Democrats hold more congressional seats in immigrant-rich states such as New York and California, they represent fewer citizens. And because each congressional district must have roughly the same number of residents, that means, in turn, that many Democratic members actually represent fewer voters than do Republicans.
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