Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Appellants v. New York, et al.
Supreme Court briefNov 16, 2020
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No. 20-366
In the
Supreme Court of the United States
DONALD J. TRUMP, PRESIDENT
OF THE UNITED STATES, et al.,
Appellants,
v.
NEW YORK, et al.,
Appellees.
On A ppeal from the United States District
Court for the Southern District of New York
BRIEF OF AMICUS CURIAE NAACP
LEGAL DEFENSE & EDUCATIONAL FUND, INC.
IN SUPPORT OF APPELLEES
Sherrilyn A. Ifill
Director-Counsel
Janai S. Nelson
Samuel Spital
Leah C. A den
Counsel of Record
J. Zachery Morris
NAACP Legal Defense
& Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, New York 10006
(212) 965-2200
laden@naacpldf.org
A lan J. Stone
John J. Hughes, III
A ndrew S. Wellin
Emily Lilburn
Pinky P. Mehta
Ryan L. Parchment
Milbank LLP
55 Hudson Yards
New York, New York 10001
(212) 530-5000
Mahogane D. Reed
NAACP Legal Defense
& Educational Fund, Inc.
700 14th Street, NW, Suite 600
Washington, DC 20005
(202) 682-1300
Counsel for Amicus Curiae NAACP Legal
Defense & Educational Fund, Inc.
Dated: November 16, 2020
299913
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii
INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1
INTRODUCTION AND SUMMARY
OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I.
THE CONSTITUTION HAS ALWAYS
MANDATED THE COUNT OF ALL
“PERSONS,” WITHOUT REGARD TO
CITIZENSHIP STATUS . . . . . . . . . . . . . . . . . . 5
A. The Constitution Requires a Count of
Persons, Not Citizens . . . . . . . . . . . . . . . . . . 5
B. A Decennial Census Count That
Excludes Non-Citizens Is Disconsonant
with Constitutional and Statutory
Mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. THE FOURTEENTH AMENDMENT
REQUIRES TH AT A LL PERSONS
BE COUNTED EQUALLY . . . . . . . . . . . . . . . . 10
ii
Table of Contents
Page
III. T H E M EMOR A N DU M H A S T H E
PURPOSE A ND EFFECT OF
DECREASING THE REPRESENTATION
OF BLACK PEOPLE A ND OTHER
COMMUNITIES OF COLOR, THEREBY
IM PEDING THE OBJ ECTI V E OF
THE FOURTEENTH AMENDMENT . . . . . . 15
A. The Memorandum Continues a Pattern
of Discr i m i nat or y Ta rget i ng of
Immigrants of Color . . . . . . . . . . . . . . . . . . 17
B. T h e Me m o r a n d u m R e p r e s e nt s
an End-Run Around This Court’s
Decision Reject i ng the Use
of Citizenship Status Question to
Manipulate Redistricting . . . . . . . . . . . . . . 19
C. The Memorandum’s P roposal to
Exclude Undocumented Persons
from Apportionment Counts Would
Have Devastating Repercussions for
Black Communities . . . . . . . . . . . . . . . . . . . 21
D. T he P r e sident i a l Memor a ndu m
Un d e r m i n e s t h e Fo u r t e e nt h
A me nd me nt ’s Obje c t i ve t o
Provide Black Persons with Equal
Representation. . . . . . . . . . . . . . . . . . . . . . . 24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
iii
TABLE OF CITED AUTHORITIES
Page
CASES:
Ala. Legis. Black Caucus v. Alabama,
135 S. Ct. 1257 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Baldridge v. Shapiro,
455 U.S. 345 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Beer v. United States,
425 U.S. 130 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bush v. Vera,
517 U.S. 952 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Centro Presente v. Trump,
332 F. Supp. 3d 393 (D. Mass. 2018) . . . . . . . . . . . . . 18
Chiafalo v. Washington,
140 S. Ct. 2316 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 14
Chisom v. Roemer,
501 U.S. 380 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
City of San Jose, California v. Trump,
2020 WL 6253433 (N.D. Cal. Oct. 22, 2020) . . . . . 5, 9
Common Cause v. Lewis,
2019 WL 4569584 (N.C. Super. Sep. 03, 2019) . . . . . 20
iv
Cited Authorities
Page
Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019) . . . . . . . . . . . . . . . . . . . . . . 19, 21
Dep’t of Homeland Sec. v.
Regents of the Univ. of Cal.,
140 S. Ct. 1891 (2020) . . . . . . . . . . . . . . . . . . . . . . 18, 19
Department of Commerce v. New York,
139 S. Ct. 2551 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Easley v. Cromartie,
532 U.S. 234 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Eldred v. Ashcroft,
537 U.S. 186 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Evenwel v. Abbott,
136 S. Ct. 1120 (2016) . . . . . . . . . . . . . . . . . . 1, 7, 12, 25
Fed’n for Am. Immigration Reform v. Klutznick,
486 F. Supp. 564 (D.D.C. 1980) . . . . . . . . . . . . . . 3, 7, 9
Franklin v. Massachusetts,
505 U.S. 788 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14
Garza v. County of Los Angeles,
918 F.2d 763 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . 7
Georgia v. Ashcroft,
539 U.S. 461 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
v
Cited Authorities
Page
Gomillion v. Lightfoot,
364 U.S. 339 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Houston Lawyers’ Ass’n v.
Attorney Gen. of Texas,
501 U.S. 419 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Kravitz v. U.S. Dep’t of Commerce,
2019 WL 8688662 (D. Md. June 26, 2019) . . . . . . . . 20
Kravitz v. United States Dep’t of Commerce,
366 F. Supp. 3d 681 (D. Md. 2019) . . . . . . . . . . . . . . . 20
League of United Latin Am. Citizens (LULAC)
v. Perry,
548 U.S. 399 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
NA ACP v. U.S. Dep’ t of Ho m el an d Sec .,
364 F. Supp. 3d 568, 572 (D. Md. 2019) . . . . . . . 1, 7, 18
Nw. Austin Mun. Util. Dist. No. One v. Holder,
557 U.S. 193 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Plyler v. Doe,
457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Ramos v. Nielsen,
336 F. Supp. 3d 1075 (N.D. Cal. 2018) . . . . . . . . . . . . 18
Saget v. Trump,
345 F. Supp. 3d 287 (E.D.N.Y. 2018) . . . . . . . . . . . . . 18
vi
Cited Authorities
Page
Shaw v. Hunt,
517 U.S. 899 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Shelby Cty., Ala. v. Holder,
570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Smith v. Allwright,
321 U.S. 649 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Terry v. Adams,
345 U.S. 461 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Pocket Veto Case,
279 U.S. 655 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Thornburg v. Gingles,
478 U.S. 30 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
United States v. Hays,
515 U.S. 737 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Wesberry v. Sanders,
376 U.S. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
White v. Regester,
422 U.S. 935 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Wisconsin v. City of New York,
517 U.S. 1 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24
vii
Cited Authorities
Page
Yick Wo v. Hopkins,
118 U.S. 356 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Zadvydas v. Davis,
533 U.S. 678 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATUTES AND OTHER AUTHORITIES:
U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . passim
U.S. Const. amend. XIV, § 2 . . . . . . . . . . . . . . 2-3, 4, 8, 11
U.S. Const. amend. XV . . . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Const. art. I, § 2, cl .2 . . . . . . . . . . . . . . . . . . . . . . . . 6
U.S. Const. art. I, § 2, cl. 3 . . . . . . . . . . . . . . . . . . . passim
1 Records of the Federal Convention of 1787 473
(M. Farrand ed. 1911) . . . . . . . . . . . . . . . . . . . . . . . . . . 7
13 U.S.C. § 141(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13 U.S.C. § 141(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 U.S.C. § 2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14
A b b y B u d i m a n , e t a l ., Fa c t s o n U. S .
Immigrants, 2018: Statistical Portrait of
t h e Fo r e i g n -Bo r n Po p u l a ti o n in t h e
viii
Cited Authorities
Page
United States, Pew Research Ctr. (Aug.
20, 2020), https://w w w.pew research.org /
hispanic/2020/08/20/facts-on-u-s-immigrants/ . . . . 23
Act of Mar. 1, 1790, 1 Stat. 101 (1790) . . . . . . . . . . . . . . . . 8
Act of Mar. 14, 1820, § 1, 3 Stat. 548 (1820) . . . . . . . . . . . 8
Alexander Keyssar, The Right to Vote: The Contested
History of Democracy in the United States
330-31 (rev. ed. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Monica A nderson, A Rising Share of the
U.S. Black Population is Foreign Born,
Pew Research Ctr. . . . . . . . . . . . . . . . . . . . . . . . . 19, 23
Breanne J. Palmer, The Crossroads: Being Black,
Immigrant, and Undocumented in the Era of
#BlackLivesMatter, 9 Geo. J. L. & Mod. Critical
Race Persp. 99 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 23
Census Bureau Releases Estimates of Undercount
and Overcount in the 2010 Census, U.S.
Census Bureau (May 22, 2012), https://www.
census.gov/newsroom /releases/archives/
2010_census/cb12-95.html . . . . . . . . . . . . . . . . . . . . . 22
Cong. Globe, 39th Cong., 1st Sess. (1866) . . . . . 11, 12, 13
ix
Cited Authorities
Page
Exclusion of ‘In dians Not Taxed ,’ W hen
Apportioning Representatives,
39 Op. Att’y Gen. 518, 519 (1940) . . . . . . . . . . . . . . . . 11
George David Zuckerman, A Consideration of
the History and Present Status of Section 2
of the Fourteenth Amendment, 30 Fordham
L. Rev. 93 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Janai S. Nelson, Counting Change: Ensuring an
Inclusive Census for Communities of Color,
199 Colum. L. Rev. 1399 (2019) . . . . . . . . . . . . . . . . . 11
Je f f r e y Pa s s e l a n d D ’ Ve r a C oh n , Ho w
Re m o v in g Un a u th o r ize d Immi g r a n t s
from Census Statistics Could Affect House
Reapportionment, Pew Research Ctr, (July
24, 2020), https://www.pewresearch.org/facttank/2020/07/24/how-removing-unauthorizedi mmig rants-f rom- census- statisticscould-affect-house-reapportionment/ . . . . . . . . . . . . 25
Josh Dawsey, Trump Derides Protections for
Immigrants From ‘Shithole’ Countr ies,
Wash. Post (Jan. 12, 2018), https://w w w.
washingtonpost.com/politics/trump-attacksprotections-for-immigrants-from-shitholecountries-in-oval-office-meeting/2018/01/11/
bfc 072 5c-f 711-11e7- 91a f- 31ac72 9add9 4 _
story.html?utm_term=.3ca1973048c5 . . . . . . . . . . . 17
x
Cited Authorities
Page
Memorandum on Excluding Illegal Aliens from
the Apportionment Base Following the 2020
Census, 85 Fed. Reg. 44,679 (July 23, 2020),
https://w w w.whitehouse.gov/presidentialactions/memorandum-excluding-illegal-aliensapportionment-base-following-2020-census/. . passim
Michael D. Shear & Julie Hirschfeld David, Stoking
Fears, Trump Defied Bureaucracy to Advance
Immigration Agenda, N.Y. Times (Dec. 23,
2017), https://www.nytimes.com/2017/12/23/us/
politics/trump-immigration.html. . . . . . . . . . . . . . . . 17
Monica Anderson & Gustavo Lopez, Key Facts About
Black Immigrants in the U.S., Pew Research
Ctr. (Jan. 24, 2018), https://www.pewresearch.
org/fact-tank/2018/01/24/key-facts-aboutblack-immigrants-in-the-u-s/. . . . . . . . . . . . . . . . 16, 23
Muslims in America: Immigrants and Those Born
in U.S. See Life Differently in Many Ways,
Pew Research Ctr. (Apr. 17, 2018) . . . . . . . . . . . . . . 19
Pamela S. K a rlan, Reappor tionment ,
Nonapportionment, and Recovering Some
Lost History of One Person, One Vote, 59
Wm. & Mary L. Rev. 1921, 1931 (2018) . . . . . . . . . . . 12
Person, Samuel Johnson, A Dictionary of the
English Language (3d. ed. 1766) . . . . . . . . . . . . . . . . . 5
xi
Cited Authorities
Page
P rocla mat ion on Improv i ng En ha nced
Ve t t i n g C a p a b i l i t i e s a n d P r o c e s s e s
f o r D e t e c t i n g A t t e m p t e d E n t r y,
85 Fed. Reg. 6,699 (Feb. 5, 2020) . . . . . . . . . . . . . . . 18
Race a nd Ethn icity i n the 2 0 2 0 Census:
Improving Data to Capture a Multiethnic
America, The Leadership Conference & Educ.
Fund 1, 11 (Nov. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . 24
Sup. Ct. R. 37.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Samuel Issacharoff & Allan J. Lichtman, The Census
Undercount and Minority Representation:
The Constitutional Obligation of the States
t o G u a r a n t e e Eq u a l Re p r e se n t a ti o n ,
13 Rev. Litig. 1 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . 22
Shane T. Stansbury, Making Sense of the Census:
The Decennial Census Debate and Its Meaning
for America’s Ethnic and Racial Minorities,
31 Colum. Hum. Rts. L. Rev. 403 (2000) . . . . . . . . . 11
The Federalist, No. 54, at 369 (J. Cooke ed. 1961) . . . . . 7
The Hofeller Files (June 17, 2019), https://www.
commoncause.org/resource/the-hofeller-files/ . . . . .20
T hom a s B. Colby, O r i g in a li s m a n d th e
Ratification of the Fourteenth Amendment,
107 Nw. U. L. Rev. 1627 (2013) . . . . . . . . . . . . . . . . . . 15
xii
Cited Authorities
Page
Thomas Hofeller, The Use of Citizenship
Voting Age Population in Redistricting,
C o m m o n C a u s e ( 2 015 ), ht t p s : // w w w.
com monc au se.org / w p - cont ent / uploa d s /
2019/05/2015-Hofeller-Study.pdf. . . . . . . . . . . . . 19-20
U.S. Census Bureau, The Black Population:
2010 Census Briefs 1 (Sept. 2011) . . . . . . . . . . . . . . . 25
Zolan Kanno-Youngs, Trump Administration Adds
Six Countries to Travel Ban, N.Y. Times (Jan.
31, 2020), https://www.nytimes.com/2020/01/31/
us/politics/trump-travel-ban.html. . . . . . . . . . . . . . . 18
1
INTEREST OF AMICUS CURIAE1
The NAACP Legal Defense and Educational Fund,
Inc. (“LDF”) is a non-profit legal organization, founded
in 1940 under the leadership of Thurgood Marshall, to
achieve racial justice and ensure the full, fair, and free
exercise of constitutional and statutory rights for Black
people and other communities of color.
Because equal political representation is foundational
to our democracy, and the franchise is “a fundamental
political right . . . preservative of all rights,” Yick Wo
v. Hopkins, 118 U.S. 356, 370 (1886), LDF has worked
for nearly a century to combat threats to equal political
participation faced by Black people. LDF has been
involved in many of the precedent-setting cases regarding
minority political representation and voting rights before
federal courts. See, e.g., Department of Commerce v.
New York, 139 S. Ct. 2551 (2019); Evenwel v. Abbott, 136
S. Ct. 1120 (2016); Ala. Legis. Black Caucus v. Alabama,
135 S. Ct. 1257 (2015); Shelby Cty., Ala. v. Holder, 570
U.S. 529 (2013); Nw. Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193 (2009); League of United Latin Am.
Citizens (LULAC) v. Perry, 548 U.S. 399 (2006); Georgia
v. Ashcroft, 539 U.S. 461 (2003); Easley v. Cromartie, 532
U.S. 234 (2001); Bush v. Vera, 517 U.S. 952 (1996); Shaw
v. Hunt, 517 U.S. 899 (1996); United States v. Hays, 515
U.S. 737 (1995); Chisom v. Roemer, 501 U.S. 380 (1991);
1. Pursuant to Supreme Court Rule 37.6, counsel for amicus
curiae state that no counsel for a party authored this brief in whole
or in part, and that no person other than amicus curiae, its members,
or its counsel made a monetary contribution to the preparation or
submission of this brief. The parties have filed blanket consent letters
with the Clerk of the Court pursuant to Supreme Court Rule 37.3.
2
Houston Lawyers’ Ass’n v. Attorney Gen. of Texas,
501 U.S. 419 (1991); Thornburg v. Gingles, 478 U.S. 30
(1986); Beer v. United States, 425 U.S. 130 (1976); White
v. Regester, 422 U.S. 935 (1975) (per curiam); Gomillion
v. Lightfoot, 364 U.S. 339 (1960); Terry v. Adams, 345
U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944).
This case arises from the current Administration’s
latest attempt to undermine political representation
of Black people and other communities of color by
manipulating Census data to exclude undocumented
immigrant persons, thereby exacerbating the undercount
of communities of color and diminishing their Congressional
representation. Many immigrant persons in the United
States, including undocumented immigrants, are Black.
Additionally, many Black people live in and adjacent to
communities of immigrant people. Counting all persons
in the apportionment of Congressional representatives is
critical to securing equal political representation in the
districts in which Black people and other people of color
reside. Thus, LDF has a significant interest in ensuring
the full, proper, and continued enforcement of both the
United States Constitution and the federal statutes,
including the Census Act, guaranteeing full political
participation and proper apportionment.
INTRODUCTION AND SUMMARY
OF ARGUMENT
In this appeal, the Administration seeks to disregard
the express constitutional mandate that representatives
be apportioned among the several states based on the
decennial Census count of all persons residing in the United
States. U.S. Const. art. I, § 2, cl. 3; U.S. Const. amend.
3
XIV, § 2. This scheme would drastically amend the theory
of equal representation in our democracy by creating an
invisible class of persons who are disproportionately people
of color and who would be denied political representation
in our federal government. The lower court rejected this
attempt, embodied in the Administration’s Memorandum
on Excluding Illegal Aliens from the Apportionment Base
Following the 2020 Census, 85 Fed. Reg. 44,679 (July
23, 2020) (the “Memorandum”). 2 Its decision should be
affirmed for at least three reasons:
First, since the Founding, our nation has embraced
a theory of representation requiring all persons to be
counted for the purposes of apportionment—regardless
of citizenship status. That basic principle is clear in the
plain text of the Constitution and illustrated by over
two centuries of historical practice. Indeed, since the
Census Act of 1790, the Census Bureau has consistently
sought to count every person residing within a state
through the decennial Census, including people without
documented citizenship status within the borders of the
United States. Fed’n for Am. Immigration Reform v.
Klutznick (“FAIR”), 486 F. Supp. 564, 576 (D.D.C. 1980)
(three-judge court). In the rare instances when lawmakers
have departed from this basic principle, they have done
so expressly, according to constitutional provisions that
have since been amended to mandate a full count of all
persons residing in the United States.
S e c o n d , t h e Fo u r t e e n t h A m e n d m e n t w a s
unambiguously and explicitly intended to secure equal
2. Available at https://www.whitehouse.gov/presidentialactions/memorandum-excluding-illegal-aliens-apportionment-basefollowing-2020-census/.
4
political representation for Black people—and thus
mandated that apportionment be based on the “whole
number of persons in each State.” U.S. Const. amend.
XIV, § 2. The framers of the Fourteenth Amendment
specifically considered—and rejected—proposals that
would have narrowed the apportionment base to only
citizens or the voting-eligible population. Instead, they
adopted a broader principle affirming that all persons must
be counted equally in apportioning political representation.
The current Administration seeks to repudiate the clear
original public meaning of the Fourteenth Amendment’s
mandate of representational equality for all persons living
in the United States.
Third, the Memorandum’s mandate would deprive
Black people and other communities of color of the equal
political representation to which they are entitled under
the Constitution. Many undocumented immigrants are
Black and other people of color, and many Black people
and other people of color also live in and among immigrant
communities. As a result, the Administration’s approach
would directly reduce the political representation afforded
to people of color. Indeed, because communities of
color are perpetually undercounted compared to white
communities in the decennial Census, the Administration’s
approach would exacerbate both the pre-existing
undercount of communities of color in the Census and
their corresponding losses in apportionment based on that
data. This Court must not allow the core objective of the
Fourteenth Amendment—equal political representation
for Black people—to be undermined by this unlawful
executive action. Nor should it allow this Memorandum
to effectuate the exclusion of a broad swath of persons
living within our borders that this Court prohibited in a
decision issued just last year. It should instead enforce the
5
original public meaning of the Fourteenth Amendment,
which plainly mandates equal political representation for
all persons living in the United States.
I.
THE CONSTITUTION HAS ALWAYS MANDATED
THE COUNT OF ALL “PERSONS,” WITHOUT
REGARD TO CITIZENSHIP STATUS.
A.
The Constitution Requires a Count of Persons,
Not Citizens.
At the Founding, the Constitution clearly established
that apportionment would be based on a count of persons—
not citizens:
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, including those bound to Service
for a Term of Years, and excluding Indians not
taxed, three fifths of all other Persons.
U.S. Const. art. I, § 2, cl. 3 (emphasis added).
“Person” had the same meaning at the Founding
that it has today, “[a] general loose term for a human
being.” Person, Samuel Johnson, A Dictionary of the
English Language (3d. ed. 1766); City of San Jose,
California v. Trump, No. 20-CV-05167-RRC-LHK-EMC,
2020 WL 6253433, at *28 (N.D. Cal. Oct. 22, 2020). Thus,
the plain text, requiring a count of “persons,” mandated
a count of all human beings in the United States, without
regard to citizenship status or voting eligibility.
6
That citizenship status does not determine enumeration
and apportionment is supported by the Founders’ use
of the terms “person” and “citizen” throughout the
Constitution. The Constitution uses the terms “person”
and “citizen” in different places, as context requires,
confirming that a broader meaning was intended when
the word “persons” was used, rather than “citizens.”
See, e.g., U.S. Const. art. I, § 2, cl 2 (“No Person shall be
a Representative who shall not have attained to the age
of twenty five Years, and been seven Years a Citizen of
the United States, and who shall not, when elected, be an
Inhabitant of that State in which he shall be chosen.”).
Accordingly, the Court has frequently held that references
to “persons” in the provisions of the Constitution
include all persons, including people who are present
in this country without documented citizenship status.
See, e.g., Zadvydas v. Davis, 533 U.S. 678, 679 (2001)
(“[T]he Due Process Clause applies to all persons within
the United States, including aliens, whether their presence
is lawful, unlawful, temporary, or permanent.”); Plyler
v. Doe, 457 U.S. 202, 210 (1982) (“Whatever his status
under the immigration laws, an alien is surely a ‘person’
in any ordinary sense of that term. Aliens, even aliens
whose presence in this country is unlawful, have long been
recognized as ‘persons’ guaranteed due process of law by
the Fifth and Fourteenth Amendments.”).
When the Framers did wish to limit or exclude persons
for apportionment purposes, they did so expressly. Thus,
Article I specifically excludes “Indians not taxed” from the
counting to be undertaken for apportionment persons. See
U.S. Const. art. I, § 2, cl. 3. And, in a provision reflecting
the Founders’ refusal to acknowledge the humanity, much
less the full citizenship, of Black people in this country,
Article I also states that “three fifths of all other Persons,”
7
i.e., enslaved Black persons, would be counted. Id. The
Framers recognized that, without those exceptions, the
term “persons” would include everyone. FAIR, 486 F.
Supp. at 576. Otherwise, those exceptions would have
been unnecessary.
In the Federalist Papers, James Madison explained
that apportionment was to be “founded on the aggregate
number of inhabitants” of each state. The Federalist,
No. 54, at 369 (J. Cooke ed. 1961). “The framers were
aware that this apportionment and representation base
would include categories of persons who were ineligible
to vote—women, children, bound servants, convicts, the
insane, and, at a later time, aliens.” Garza v. County
of Los Angeles, 918 F.2d 763, 774 (9th Cir. 1990). The
motivating principle was the theory of representational
equality, under which all residents of the state are to
be counted, even though only some individuals had the
right to vote. Evenwel, 136 S. Ct. at 1128. As Alexander
Hamilton explained, “[t]here can be no truer principle
than this—that every individual of the community at large
has an equal right to the protection of government.” Id.
at 1127 (quoting 1 Records of the Federal Convention of
1787 473 (M. Farrand ed. 1911)).
B. A Decennial Census Count That Excludes NonCitizens Is Disconsonant with Constitutional
and Statutory Mandates.
To enforce the constitutional requirement that
representation be apportioned based on a count of persons,
the Constitution requires Congress to count the entire
population at least every ten years. U.S. Const. art. I, § 2,
cl. 3; Wesberry v. Sanders, 376 U.S. 1, 13-14 (1964). To do
otherwise would run afoul of the constitutional mandate
8
that apportionment be based on the “whole number of
persons in each State.” U.S. Const. amend. XIV, § 2.
Not long after the first Constitutional Convention,
Congress enacted the Census Act on March 1, 1790,
providing for the enumeration of the inhabitants of the
United States. See Act of Mar. 1, 1790, 1 Stat. 101 (1790).
The original Census did not inquire whether a person
was a citizen. It only asked whether the person was in
his or her “usual place of abode” on the counting date.
See Alexander Keyssar, The Right to Vote: The Contested
History of Democracy in the United States 330-31 (rev.
ed. 2009). Even when the Census Act was revised to
add new questions, including one about “foreigners not
naturalized,” this subset of persons was included as free
persons in the count. Act of Mar. 14, 1820, § 1, 3 Stat.
548, 550 (1820).
The Census Act requires the Secretary of Commerce
to “take a decennial census of population” and report to
the President the “tabulation of total population . . . as
required for the apportionment of Representatives in
Congress,” 13 U.S.C. § 141(a), (b). Under the Act, the
President’s duty is clear. “[T]he President shall transmit
to the Congress a statement showing the whole number
of persons in each State . . . as ascertained under the . . .
decennial census of the population, and the number of
Representatives to which each State would be entitled . . .
by the method known as the method of equal proportions,
no State to receive less than one Member.” 2 U.S.C. § 2(a).
For more than two centuries since the first Census
Act, “[t]he Census Bureau has always attempted to
count every person residing in a state on Census day,
and the population base for purposes of apportionment
9
has always included all persons, including aliens both
lawfully and unlawfully within our borders.” FAIR, 486
F. Supp. at 576. This interpretation has been consistent
and uncontroversial. See City of San Jose, California,
2020 WL 6253433, at *8.
Rather than follow this unbroken line of authority and
practice dating back to the founding of our constitutional
Republic, the Administration has issued a Memorandum
purporting to redefine the term “persons in each
State” to exclude many “persons in each State,” i.e.,
undocumented immigrants. See Memorandum, 85 Fed.
Reg. 44,679. The Memorandum instructs the Secretary
of Commerce to provide information that allows the
President to exclude undocumented immigrant people
from the final count of the “whole numbers of persons
in each State” that the President transmits to Congress
as the basis for Congressional apportionment. See id.
at 44,679–80. The Memorandum is premised on the
theory that the term “persons in each State” refers only
to the “inhabitants” in each state. See City of San Jose,
California, 2020 WL 6253433, at *29. But its conclusion
(i.e., that undocumented persons should be excluded)
does not follow from the premise. The word “inhabitant”
refers merely to someone’s “usual residence” or “usual
place of abode”—or any circumstances where they have
an “enduring tie to a place.” Franklin v. Massachusetts,
505 U.S. 788, 789 (1992). All persons who reside in a state,
including those without documented citizenship status,
have the requisite “enduring tie to a place” to make them
“inhabitants” with their “usual residence” in that state.
See Franklin, 505 U.S. at 805; City of San Jose, California,
2020 WL 6253433, at *29. Thus, even accepting the
Administration’s premise of counting only inhabitants
for Congressional apportionment, undocumented persons
10
residing in the United States are “inhabitants” who must
be counted.
II. THE FOURTEENTH AMENDMENT REQUIRES
THAT ALL PERSONS BE COUNTED EQUALLY.
While the Constitution has never limited apportionment
based on citizenship or immigration status, at the Founding,
the Constitution treated enslaved people differently than
free persons. Treating enslaved people as less than full
humans, the Constitution decreed that each enslaved
person would be apportioned as only “three-fifths” of a
person, the so-called Three-Fifths Clause. U.S. Const.
art. I, § 2, cl. 3. The Fourteenth Amendment was a stark
reversal. It abolished the racist and shameful denial of
full citizenship to Black people reflected in the ThreeFifths Clause and instead embraced a critical principle:
all persons must be equal before the law, and all must be
apportioned equally and fully for the purposes of political
representation.
The Fourteenth Amendment and the other Civil War
Amendments were a repudiation of the anti-Black racism
that led to the Three-Fifths Clause. Together with the
Thirteenth Amendment, which abolished chattel slavery,
and the Fifteenth Amendment, which granted all adult
Black men the right to vote, the Fourteenth Amendment
formally recognized that all persons within the jurisdiction
of the United States were entitled to “the equal protection
of the laws,” and that all people must be valued equally
in apportioning political representation. The Fourteenth
Amendment provides that “Representatives shall be
apportioned among the several States according to
their respective numbers, counting the whole number of
11
persons in each State, excluding Indians not taxed.”3 U.S.
Const. amend. XIV, § 2 (emphasis added).
The ratification of the “whole number of persons”
provision in the Fourteenth Amendment rendered the
Three-Fifths Clause obsolete and mandated that formerly
enslaved people be counted equally and fully for purposes
of apportionment. See Shane T. Stansbury, Making Sense
of the Census: The Decennial Census Debate and Its
Meaning for America’s Ethnic and Racial Minorities,
31 Colum. Hum. Rts. L. Rev. 403, 434-35 (2000); Janai
S. Nelson, Counting Change: Ensuring an Inclusive
Census for Communities of Color, 199 Colum. L. Rev.
1399, 1410–11 (2019).
The Fourteenth Amendment thereby abolished
the anti-Black exception to representational equality
embodied in the original Constitution, while reaffirming
that fundamental theory of representation—one that is
based on the counting and apportionment of all persons.
Indeed, the drafters of the Fourteenth Amendment
specifically considered, and rejected, proposals that would
have made citizens or the voting-eligible population the
apportionment base.
Representative Thaddeus Stevens of Pennsylvania
introduced a proposal that would have apportioned
representatives “according to their respective legal
voters.” Cong. Globe, 39th Cong., 1st Sess. 10 (1866); see
3. A nother shameful provision excluding “Indians not
taxed” from apportionment no longer has any effect. For nearly a
century, it has been recognized that “all Indians are subject to the
federal income-tax laws.” Exclusion of ‘Indians Not Taxed,’ When
Apportioning Representatives, 39 Op. Att’y Gen. 518, 519 (1940).
12
also Evenwel, 136 S. Ct. at 1128 (recounting the history of
this proposal). The proposal “encountered fierce resistance
from proponents of total-population apportionment.”
Evenwel, 136 S. Ct. at 1128. The New England states were
strongly opposed, due to both their “disproportionately
large number of women (who were universally excluded
from voting at the time)” and “because many of its states
imposed more restrictions on the franchise than some of
the newer states.” Pamela S. Karlan, Reapportionment,
Nonapportionment, and Recovering Some Lost History
of One Person, One Vote, 59 Wm. & M ary L. Rev. 1921,
1931 (2018). Accordingly, when the Joint Committee
of Fifteen on Reconstruction began deliberations and
considered a resolution on apportionment that would
base representation on legal voters, the resolution was
defeated by eight members of the committee, with every
member from New England voting against it. George
David Zuckerman, A Consideration of the History and
Present Status of Section 2 of the Fourteenth Amendment,
30 Fordham L. Rev. 93, 96 (1961).
The decision to continue to use total-population
apportionment in the Fourteenth Amendment is consistent
with the “theory of the Constitution” and the principle of
representational equality—a principle that was addressed
during Congressional debates about the Fourteenth
Amendment. See Cong. Globe, 39th Cong., 1st Sess.,
2766-2767; Evenwel, 136 S. Ct. at 1128. Senator Luke
P. Poland recognized that “[a]ll the people, or all the
members of a State or community, are equally entitled
to protection; they are all subject to its laws; they must
all share its burdens, and they are all interested in its
legislation and government.” Cong. Globe, 39th Cong., 1st
Sess. 2962 (1866). Representative Burton Cook believed
13
that representation based on voter population would have
improperly “take[n] from the basis of representation
all unnaturalized foreigners,” id. at 411, and Senator
Henry Wilson demurred that excluding noncitizens
from the apportionment calculus would “throw out of the
basis at least two and a half millions of unnaturalized
foreign-born” persons. Id. at 1256. Representative
John Bingham affirmed that the “whole immigrant
population should be numbered with the people” because
“[u]nder the Constitution as it now is and as it always has
been, the entire immigrant population of this country
is included in the basis of representation.” Id. at 432.
Representative Andrew Jackson Rogers of New Jersey
similarly explained:
Every man in this House knows perfectly well
in the several States a person under the age of
twenty-one years cannot vote, unnaturalized
citizens cannot vote, and the whole class of
females, constituting nearly one half of the
population of this country cannot vote; yet
for these persons the States are entitled to
representation.
Id. at 353 (emphasis added). The text of the Constitution
cannot be, and has not been, abrogated by subsequent
legislation delineating different categories of immigrant
persons (i.e., documented and undocumented), as
confirmed by the fact that every Administration since
1875—when the Page Act, the first federal immigration
law to create such categories by formally prohibiting
entry into the United States, was passed—has counted
all immigrant persons regardless of immigration status
as part of the decennial Census.
14
Considering this history, the Administration’s
argument that it is entitled to exclude undocumented
immigrant people from the count used for apportionment
purposes—because the Reapportionment Act of 1929, 2
U.S.C. § 2(a), provides it with discretion to determine
which people are properly counted as “inhabitants” of
the several states—is meritless. See Appellants’ Br.
29–42. The Census count already excludes people who
are not inhabitants or residents of a given state. What
the Memorandum seeks to do is exclude all immigrant
people who lack lawful status—even those that intend
to reside in the United States indefinitely and thus
qualify as inhabitants or residents. Moreover, even
assuming the Administration may have some discretion
in conducting the Census count, as of now, that count has
already occurred; once the President has received the
decennial Census data from the Secretary of Commerce,
the apportionment calculation itself is a “ministerial” act.
Franklin, 505 U.S. at 799.
Importantly, the Fourteenth A mendment has
been consistently interpreted to cover all persons for
apportionment purposes notwithstanding the various
federal immigration restrictions that were passed
beginning with the Page Act of 1875.4 “‘Long settled and
established practice’ may have ‘great weight in a proper
interpretation of constitutional provisions.’” Chiafalo v.
Washington, 140 S. Ct. 2316, 2326 (2020) (quoting The
Pocket Veto Case, 279 U.S. 655, 689 (1929)); see also Eldred
v. Ashcroft, 537 U.S. 186, 213 (2003) (“[A] contemporaneous
4. In addition to the Page Act, the Fourteenth Amendment’s
interpretation remained consistent through subsequent federal
immigration legislation such as the Chinese Exclusion Act of 1882
and the Immigration Act of 1924.
15
legislative exposition of the Constitution . . . acquiesced
in for a long term of years, fixes the construction to be
given” to the Constitution).
The Administration’s position would undermine
an important equality objective of the Fourteenth
Amendment, which even its opponents understood
required “giv[ing] negroes political and social equality
with the whites.” Thomas B. Colby, Originalism and the
Ratification of the Fourteenth Amendment, 107 Nw. U. L.
Rev. 1627, 1647 (2013). As discussed below, because many
immigrants are Black and other people of color, and many
Black people and other people of color live in proximity
to immigrant communities, including undocumented
immigrant persons, construing the Amendment to
allow the exclusion of undocumented people from the
apportionment base would impede this objective—and
directly reduce the political representation afforded to
Black people.
III. THE MEMORANDUM HAS THE PURPOSE
A N D EFFECT OF DECREA SI NG T H E
REPRESEN TATION OF BL ACK PEOPLE
A ND OTHER COMMUNITIES OF COLOR ,
THEREBY IMPEDING THE OBJECTIVE OF
THE FOURTEENTH AMENDMENT.
Enumeration of the national population through
the constitutionally mandated decennial Census is
not a mere bureaucratic exercise. It dictates critical
aspects of our democracy, including the allocation of
elected representatives to each State; the structure
of congressional and state legislative districts; the
distribution of billions of dollars of federal and state funds;
and shaping of policies that address the needs of Black
16
communities. Historically, despite the requirements of
the Fourteenth Amendment, the decennial Censuses
have consistently undercounted Black people, and thereby
deprived Black people of equal political representation
and equal access to government resources. The
Administration’s scheme to exclude undocumented people
from the apportionment count will further limit Black
people’s access to political representation and resources.
The population of immig rant and nonciti zen
individuals within the Black community is substantial.
Approximately one-in-ten Black people in the United
States are immigrants, of whom approximately 42
percent are noncitizens and approximately 15 percent are
undocumented. See Monica Anderson & Gustavo Lopez,
Key Facts About Black Immigrants in the U.S., Pew
Research Ctr. (Jan. 24, 2018). 5
Thus, on top of the histor ic undercount that
has consistently disadvantaged Black people, the
Administration now attempts to remove undocumented
individuals, including a disproportionate number of Black
people and other people for color, from the apportionment
base—undermining the Fourteenth Amendment’s core
objective to provide Black people with equal political
representation. In so doing, the Administration continues
its shameful pattern of targeting immigrants of color and
resurrects the ignoble history of denying equal political
representation to people of color in our democracy.
5 . Ava i l able at ht t p s: // w w w.p e w r e s e a r c h .or g / f a c t tank/2018/01/24/key-facts-about-black-immigrants-in-the-u-s/.
17
A.
The Memorandum Continues a Pattern of
Discriminatory Targeting of Immigrants of
Color.
The Memorandum at issue in this case is the latest in
a series of unlawful policies by this Administration that
target immigrants of color, including Black immigrants.
The President has made his biased and discriminatory
views about race and immigration clear in connection with
specific policy choices. In a conversation with members of
Congress about legislation to address immigration policy,
he reportedly stated that Haitians “all have AIDS,” that
Haitian immigrants should not be admitted into the United
States, and that Haiti and African countries are “shithole
countries.” NAACP v. U.S. Dep’t of Homeland Sec., 364
F. Supp. 3d 568, 572 (D. Md. 2019); see also Michael D.
Shear & Julie Hirschfeld David, Stoking Fears, Trump
Defied Bureaucracy to Advance Immigration Agenda,
N.Y. Times (Dec. 23, 2017)).6 Furthermore, the President
is reported to have voiced a “preference” for immigrants
from countries comprised overwhelmingly of white people
“like Norway.” Id.; see also Josh Dawsey, Trump Derides
Protections for Immigrants From ‘Shithole’ Countries,
Wash. Post (Jan. 12, 2018)).7
6. Available at https://www.nytimes.com/2017/12/23/us/politics/
trump-immigration.html.
7. Available at https://www.washingtonpost.com/politics/
trump-attacks-protections-for-immigrants-from-shithole-countriesin- oval- off ice -meeting /2 018 /01/11/ bfc0725c-f 711-11e7-91af31ac729add94_story.html?utm_term=.3ca1973048c5.
18
These are not just words. In November 2017, the
Administration terminated the Temporary Protected
Status designation for Haitian nationals living in
the United States, which the U.S. government has
maintained since 2010 as a result of the devastation
from an earthquake, a subsequent cholera outbreak,
and hurricanes. See NAACP, 364 F. Supp. 3d at 571–72.
No change in circumstances warranted or justified this
termination. Four district courts have recognized as
legitimate plaintiffs’ claims that “this act was motivated at
least partially by racial discrimination.” Id. at 578; Saget
v. Trump, 345 F. Supp. 3d 287 (E.D.N.Y. 2018); Ramos
v. Nielsen, 336 F. Supp. 3d 1075 (N.D. Cal. 2018); Centro
Presente v. Trump, 332 F. Supp. 3d 393 (D. Mass. 2018).
The President likewise engaged in notoriously
discriminatory rhetoric in urging that Muslim persons
should be excluded from our country, and his Administration
now generally excludes residents of thirteen predominately
Muslim countries from admission. Proclamation on
Improving Enhanced Vetting Capabilities and Processes
for Detecting Attempted Entry, 85 Fed. Reg. 6,699 (Feb.
5, 2020) Zolan Kanno-Youngs, Trump Administration
Adds Six Countries to Travel Ban, N.Y. Times (Jan. 31,
2020). 8 Among his statements, the President has referred
to Mexican immigrants as “criminals, drug dealers, [and]
rapists” and has compared undocumented immigrant
people to “animals.” See Dep’t of Homeland Sec. v. Regents
of the Univ. of Cal., 140 S. Ct. 1891, 1917 (2020). This Court
recognized that the Administration acted unlawfully in
rescinding the Deferred Action for Childhood Arrival
(“DACA”) program, which disproportionately impacted
8. Available at https://w w w.nytimes.com/2020/01/31/us/
politics/trump-travel-ban.html.
19
Latinx immigrants from Mexico, representing 78 percent
of DACA recipients. Id. at 1915. Black immigrant people,
and Black communities generally, are among these
targeted groups. For example, approximately 11 percent
of foreign-born Muslim people in the United States identify
as Black, and Afro-Latinx immigrant peoples comprise 11
percent of the Black immigrant population. See Muslims
in America: Immigrants and Those Born in U.S. See Life
Differently in Many Ways, Pew Research Ctr. (Apr. 17,
2018); Monica Anderson, A Rising Share of the U.S. Black
Population is Foreign Born, Pew Research Ctr.
B. The Memorandum Represents an End-Run
Around This Court’s Decision Rejecting
the Use of Citizenship Status Question to
Manipulate Redistricting.
The current Administration has also engaged in a
years-long strategy to misuse the Census as a tool to
manipulate redistricting and political representation of
communities of color. Just last year, this Court rejected
the addition of a citizenship status question to the 2020
decennial Census, recognizing that the Administration’s
purported justification for adding the question was
pretextual. See Dep’t of Commerce v. New York, 139 S.
Ct. 2551 (2019).
The Memorandum calls for exclusion of undocumented
immigrant persons from the apportionment base in a
manner that, as the Republican, also referred to the Grand
Old Party (“GOP”), gerrymandering strategist Thomas
Hofeller concluded, would politically benefit Republicans
and non-Hispanic white people. See Memorandum, 85
Fed. Reg. at 44,679–80; Thomas Hofeller, The Use of
Citizenship Voting Age Population in Redistricting,
20
Common Cause (2015).9 Mr. Hofeller specifically concluded
that removing non-citizens from the apportionment base and
packing remaining non-white and non-Republican voters
along racial and party lines into as few districts as possible
would serve to dilute their political power, identifying the
addition of a citizenship status question to the Census as one
method of facilitating this strategy. Common Cause, The
Hofeller Files (June 17, 2019).10 Accordingly, as evidenced via
multiple legal challenges to the citizenship status question
and discriminatory redistricting plans, the Memorandum
is a culmination of years of repeated attempts by political
operatives to manipulate our democracy using the decennial
Census and redistricting schemes. See Common Cause v.
Lewis, No. 18 CVS 014001, 2019 WL 4569584 (N.C. Super.
Sep. 03, 2019) (ordering redrawing of new redistricting
maps in light of direct evidence in Hofeller files of focus
on maximizing partisan advantage in 2017 plans); Kravitz
v. United States Dep’t of Commerce, 366 F. Supp. 3d 681
(D. Md. 2019) (Secretary’s addition of citizenship question
to Census questionnaire was arbitrary and capricious,
violated the Enumeration Clause, and warranted
permanent injunction with nationwide scope).11 Evidence
9. Available at https://www.commoncause.org/wp-content/
uploads/2019/05/2015-Hofeller-Study.pdf.
10. Available at https://www.commoncause.org/resource/thehofeller-files/.
11. See also Memorandum in Support of Plaintiffs’ Emergency
Motion for Preliminary Injunction and Injunction Pending Appeal,
Kravitz v. U.S. Dep’t of Commerce, 2019 WL 8688662 at *3-4 (D.
Md. June 26, 2019) (“Hofeller and Neuman[—this Administration’s
former adviser on census issues—]collaborated on developing a
pretextual justification to conceal that discriminatory intent – a
pretext that [U.S. Commerce] Secretary Ross adopted and, through
Neuman, presented to DOJ.”).
21
of this strategy similarly undermined the current
administration’s explanation for adding the citizenship
status question to the 2020 decennial Census. See Dep’t
of Commerce, 139 S. Ct at 2556.
This Memorandum picks up where these efforts
left off, representing yet another effort to misuse the
Census to target immigrants of color and limit political
representation for people of color more broadly. Indeed,
the President references the failed Executive Order
calling for the Citizenship Status Question on the
decennial Census in the Memorandum at issue here, noting
that, “in Executive Order 13880 of July 11, 2019 . . . [a]s the
Attorney General and I explained at the time that order
was signed, data on illegal aliens could be relevant for the
purpose of conducting the apportionment, and we intended
to examine that issue.” See Memorandum, 85 Fed. Reg.
at 44,680. The Memorandum seeks to circumvent this
Court’s decision rejecting the Administration’s attempted
addition of a citizenship status question on the decennial
Census, and it carries the same taint of that pretextual
endeavor. See Dep’t of Commerce, 139 S. Ct. at 2551.
C.
The Memorandum’s Proposal to Exclude
Undocumented Persons from Apportionment
Counts Would Have Devastating Repercussions
for Black Communities.
Black people, and communities of color generally,
have historically faced continuous political affronts
at the nexus of citizenship, eligibility to vote, and
apportionment. Excluding non-citizens from the
Census count would further exacerbate an existing and
quantifiable representational disparity arising from the
22
historical undercounting of Black people in the Census.
The source of impact is twofold: the Memorandum
effects both direct exclusion of Black undocumented
persons from the apportionment count and the diminution
of political representation for Black people living in
proximity to undocumented immigrants. As a result,
the Memorandum would deprive Black people of the fair
and equal political representation that the Fourteenth
Amendment guarantees.
The Census historically has undercounted racial
and ethnic minorities despite its intended “goal of
accomplishing an ‘actual Enumeration’ of population.”
Wisconsin v. City of New York, 517 U.S. 1, 6 (1996).
Even after the Fourteenth Amendment eliminated
the Three-Fifths calculation in the Census Clause,
Black people were “egregiously undercounted” in the
decennial Census “but lacked the political clout to secure
a recount.” Samuel Issacharoff & Allan J. Lichtman, The
Census Undercount and Minority Representation: The
Constitutional Obligation of the States to Guarantee
Equal Representation, 13 Rev. Litig. 1, 6 (1993).
This undercount continues to threaten the equal
political representation of Black people. The 1940 Census
suffered from an 8.4 percent undercount of the Black
population, compared to only a 5.0 percent undercount for
the white population. Wisconsin, 517 U.S. at 7. In the 2010
Census, Black people were undercounted by 2.1 percent,
while non-Hispanic white people were overcounted by
0.8 percent. See Census Bureau Releases Estimates
of Undercount and Overcount in the 2010 Census, U.S.
Census Bureau (May 22, 2012).12
12. Available at https://www.census.gov/newsroom/releases/
archives/2010_census/cb12-95.html.
23
Excluding persons without documented citizenship
from the apportionment base would further exacerbate
these preex isting representational and resource
disparities in Black communities. Immigrant persons
comprise 13.7 percent of the United States population,
with a quarter of this population being undocumented. See
Abby Budiman, et al., Facts on U.S. Immigrants, 2018:
Statistical Portrait of the Foreign-Born Population in
the United States, Pew Research Ctr. (Aug. 20, 2020).13
Additionally, immigrant persons comprise a growing
share of the nation’s Black population, at approximately 10
percent nationally and higher in metropolitan areas like
New York (about 28 percent) and Miami (about 33 percent).
See Anderson, A Rising Share. Approximately 42 percent
of Black immigrant persons do not hold U.S. citizenship,
and approximately 15 percent do not have documentation.14
See Anderson & Lopez, Key Facts. Thus, any effort to
exclude undocumented persons from apportionment base
would negatively impact the representation and attendant
policies and resources afforded to Black communities.
Exclud i ng u ndoc u ment ed p er son s f rom t he
Congressional apportionment base following the Census
count would not only reduce the political representation
of Black communities; it would adversely skew the Census
data the Government uses in dispensing government
funds. “The Federal Government considers Census
1 3 . Av a i l a b l e a t h t t p s : / / w w w. p e w r e s e a r c h . o r g /
hispanic/2020/08/20/facts-on-u-s-immigrants/.
14. Among the population of undocumented immigrant people
in the United States, Black people are overrepresented by five
times in immigration detention and deportation proceedings. See
Breanne J. Palmer, The Crossroads: Being Black, Immigrant, and
Undocumented in the Era of #BlackLivesMatter, 9 Geo. J. L. &
Mod. Critical Race Persp. 99, 107 (2017).
24
data in dispensing funds through federal programs to
the States, and the States use the results in drawing
intrastate political districts.” Wisconsin, 517 U.S. at
5–6. This data is also used in drafting “legislation,
urban and regional planning, business planning, and
academic and social studies.” Baldridge v. Shapiro, 455
U.S. 345, 353 n.9 (1982). Additionally, policymakers,
federal agencies, and civil rights advocates rely on Census
data to address barriers to equal opportunity in areas
such as voting rights, employment, education, housing,
lending, healthcare, and criminal justice, among others.
See Race and Ethnicity in the 2020 Census: Improving
Data to Capture a Multiethnic America, The Leadership
Conference & Educ. Fund 1, 11 (Nov. 2014). The current
Administration’s tally of the apportionment base would
deny thousands of people access to these programs and
opportunities.
D.
The Presidential Memorandum Undermines the
Fourteenth Amendment’s Objective to Provide
Black Persons with Equal Representation.
The clear objective of the Fourteenth Amendment was
to end the lack of representation for disfavored persons,
namely Black people, and to ensure they had political
representation on equal footing with the white population.
Despite this history, by erasing undocumented immigrant
persons from the apportionment base following the Census
count, the Memorandum would deprive Black people and
other communities of color of vital political representation
and socio-economic opportunities. Communities with large
Black and minority populations stand to lose significant
federal funding and equal political representation if
unauthorized immigrant persons are no longer counted in
25
apportioning Congressional representatives. For example,
California, Florida, and Texas are all at risk of losing
representatives, even though their populations are expected
to grow or remain stable. Jeffrey Passel and D’Vera Cohn,
How Removing Unauthorized Immigrants from Census
Statistics Could Affect House Reapportionment, Pew
Research Ctr., (July 24, 2020).15 This would adversely
impact the representation of Black communities, as those
states represent three of the five states with the largest
Black populations according to the 2010 Census. See
U.S. Census Bureau, The Black Population: 2010 Census
Briefs 1, 8 (Sept. 2011) (reflecting 3.2 million Black persons
residing in Florida, 3.2 million in Texas, and 2.7 million in
California). Moreover, these three states alone represented
21.5 percent of the Black population in the United States
in 2010. Id. at 10 (Florida accounted for 7.6 percent of
the Black population, Texas 7.5 percent, and California
6.4 percent). As a result, Black people in these areas
would have larger numbers of people per representative,
undermining the principle of equal representation and “one
person, one vote.” See Evenwel, 136 S. Ct. at 1131.
15 . Ava i lable at ht tp s: // w w w.p ew re se a rch.org /fa c t tank/2020/07/24/how-removing-unauthorized-immigrants-fromcensus-statistics-could-affect-house-reapportionment/.
26
CONCLUSION
The decision below should be affirmed.
Respectfully submitted.
Sherrilyn A. Ifill
Director-Counsel
Janai S. Nelson
Samuel Spital
Leah C. A den
Counsel of Record
J. Zachery Morris
NAACP Legal Defense
& Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, New York 10006
(212) 965-2200
laden@naacpldf.org
A lan J. Stone
John J. Hughes, III
A ndrew S. Wellin
Emily Lilburn
Pinky P. Mehta
Ryan L. Parchment
Milbank LLP
55 Hudson Yards
New York, New York 10001
(212) 530-5000
Mahogane D. Reed
NAACP Legal Defense
& Educational Fund, Inc.
700 14th Street, NW,
Suite 600
Washington, DC 20005
(202) 682-1300
Counsel for Amicus Curiae NAACP Legal
Defense & Educational Fund, Inc.
Dated: November 16, 2020
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