November 6, 2020

By Patrick Rodenbush
rodenbush@redistrictingfoundation.org

National Redistricting Foundation Wins Lawsuit Challenging Trump’s Attempt to Exclude Non-Citizens from Apportionment 

Washington, D.C.—Today, a three-judge panel sitting in the District Court of Maryland became the third court to order that all persons living in the United States must be included in the 2020 census count for the purpose of congressional apportionment, regardless of their citizenship or immigration status. The National Redistricting Foundation (NRF) supported the plaintiffs in Useche v. Trump, which challenged the July 21 Presidential Memorandum announcing President Trump’s intent to exclude undocumented immigrants from the population count for the purposes of apportioning seats in the U.S. House of Representatives. In a unanimous opinion, the court found that the plaintiffs had demonstrated a substantial risk that the policy would diminish congressional representation in certain states, and held that the Memorandum violated federal laws governing the census and reapportionment.

“Today’s decision confirms that the July 21 Memorandum was another brazen attempt by the Trump Administration to illegally and unfairly use the census and apportionment process for political gain by targeting people of color,” said Eric H. Holder, Jr., the 82nd Attorney General of the United States. “All persons are to be counted for the purposes of apportionment, and the president does not have the authority to change the rules to benefit himself and the Republican Party. The unanimous ruling by the court today is a win for equal representation, and demonstrates the extraordinary overreach by the President.”

The President’s July 21 Memorandum attempted to depart from the bedrock principle that everyone—every one—should be counted equally for the purpose of congressional apportionment. Today’s court decision marks the third ruling declaring the Memorandum to be unlawful and blocking its implementation, joining decisions out of New York and California. The ultimate determination of whether these decisions will stand—or, alternatively, if the Trump Administration will be allowed to manipulate congressional apportionment—will be made by the Supreme Court, which will hear the government’s appeal in the New York case later this month.

Today’s decision is particularly important as it confirms that the individual and organizational plaintiffs in the case have standing to challenge the July 21 Memorandum based on the expected and intended apportionment injury. The evidence presented to the court in this case—including in an uncontested expert report—shows that the states in which plaintiffs reside would lose representatives in Congress if the Memorandum were to be implemented. This loss of representation would not only dilute the influence of states with large immigrant populations in the House of Representatives, but also would reduce those states’ impact in the Electoral College.

As with the other court decisions, the court ruled the Memorandum “violates the statutes governing the census and apportionment in two respects: by wholly excluding undocumented immigrants from the total population count used to apportion congressional seats; and by requiring the Secretary of Commerce to provide the President with data collected outside the decennial census for use in apportionment.”

The NRF-supported lawsuit was argued pro-bono by Covington & Burling LLP.

You can read the full opinion from the court here.

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