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The attorneys general of Louisiana, Kansas, Ohio and West Virginia are suing to stop the U.S. Census Bureau from including illegal immigrants in the count used to apportion congressional seats and electoral votes.
The lawsuit, filed Sunday in federal court in Louisiana, the day before President Donald Trump’s inauguration, alleges that the Biden administration decided to include illegal immigrants counted in the 2020 census as part of the population count to distribute congressional seats and electoral votes. This allegedly turned out Ohio and West Virginia each losing a congressional seat and an electoral vote to other states with larger populations of illegal immigrants and temporary visa holders living there.
The lawsuit says Texas gained a congressional seat and an electoral vote, and California kept a congressional seat and an electoral vote “that it would have otherwise lost.”
The attorneys general argue that Louisiana and Kansas will likely lose a congressional seat and an electoral vote in the 2030 redistricting if the practice continues.
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“We must not lose representation in Congress because of the presence of illegal aliens harbored by other states,” Louisiana Attorney General Liz Murrill said in a statement. “Counting illegal aliens in the census to determine congressional seats and electoral votes is illegal. We sued to stop it.”
Migrants wait for their CBP One appointments before crossing the El Chaparral border port in Tijuana, Mexico on January 20, 2025. The Trump administration is shutting down the CBP One application. (Carlos Moreno/NurPhoto via Getty Images)
In February 2018, the US Census Bureau developed criteria for the 2020 Census, dubbed the “Residency Rule,” which stated that foreign nationals living in the US are counted in the census and assigned to the state where your “ordinary residence” is located. The lawsuit notes how this was regardless of whether those aliens are lawfully present in the US and “regardless of whether any visas they may hold are temporary.”
After the 2020 census, the lawsuit says, former President Biden’s Commerce Secretary Gina Raimondo, as well as the Census Bureau and its director, Robert Santos, decided to include “illegal aliens and aliens with temporary visas (“non-immigrant aliens”) in the census figures. used to determine the distribution of votes in the House of Representatives and the Electoral College.”
The suit says the Residence Rule violates the Fourteenth Amendment’s principle of equal representation by “robbing the people of the Plaintiff States of their rightful share of political representation, while systematically redistributing political power to states with large of illegal aliens and nonimmigrant aliens,” as well as Article II, Section 1, of the United States Constitution in “requiring an unconstitutional distribution of Electoral College votes between the states”.
President Trump delivers his second presidential inaugural address on January 20, 2024. (Fox News)
“The residency rule also violates the federal government’s constitutional obligation to conduct an ‘actual enumeration’ of the number of ‘persons in each State,'” the lawsuit says. “The phrase ‘persons in each State’ was understood as both at the founding as in the era of Reconstruction shall be restricted to citizens of the United States and permanent resident aliens who have been lawfully admitted to the body politic constituted by the Constitution.”
It continues: “Aliens who are illegally or temporarily present in the United States did not qualify because they are not entitled to political representation. It has long been understood that foreign diplomats temporarily in the United States did not qualify either.”
“But in any event, the Fourteenth Amendment separately requires that illegal aliens who have been denied the right to vote be excluded from the state apportionment,” the suit says. “Therefore, the states’ actual population enumeration cannot include these aliens. Only U.S. citizens and lawful permanent residents (“LPRs,” also known as “green card holders”) can be included.
People wait for their CBP One appointments before crossing the El Chaparral border port in Tijuana, Mexico on January 20, 2025. The Trump administration shut down the CBP One application for migrants. (Carlos Moreno/NurPhoto via Getty Images)
Attorneys general argue that illegal immigration “affects the distribution of seats in the House of Representatives and Electoral College because the illegal alien population is large and highly concentrated in a minority of states.”
The lawsuit goes on to summarize research that suggests there are an estimated 11.7 million illegal immigrants in the U.S., stating that over the past three decades, the United States “has been subjected to the wave of immigration in American history.”
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“Counting illegal aliens on the census takes voting power away from some Americans and gives it to others,” the lawsuit says.
President Trump has promised mass deportations and declared a state of emergency on the southern border on his first day in office. It’s unclear how the lawsuit will affect the incoming Trump administration.
