California sues Trump administration to mandate undocumented immigrants are counted for apportionment

The state of California sued the Trump administration Tuesday to require it to count undocumented immigrants in the census for the purpose of allocating congressional representation.

The lawsuit, led by California Attorney General Xavier Becerra (D) and several mayors in the state, says it would be unconstitutional for the Trump administration to not count undocumented people, and that it is an effort to strip away at least one of California’s House districts. 

“You can’t be a law-and-order president if you keep breaking the law,” Becerra said in a statement. “This latest attack on the census is just that — it’s unlawful.

“President Trump still believes he can sidestep the U.S. Constitution. A complete, accurate census count is critical to ensure we get the Congressional representation and resources we have a right to,” he said. “For Californians who haven’t filled out the census, get to it. Make your voice heard.” 

The lawsuit comes a week after Trump issued an order blocking undocumented immigrants from counting toward congressional representation after the White House was blocked last year from adding a citizenship question to the decennial survey. 

The order, which immediately sparked a slate of legal challenges, argues that the the president has final say over transmitting the final census report to Congress and that the Constitution does not explicitly define which persons must be included in determining apportionment. 

California’s lawsuit notes that the Constitution requires counting “the whole number of persons in each State,” thus invalidating the order’s premise.

“Thus, it is well settled that all persons residing in the United States must be counted to fulfill the Constitution’s ‘actual Enumeration’ mandate for congressional apportionment,” the lawsuit reads. “The Memorandum’s unprecedented policy and orders are unconstitutional and otherwise unlawful. They threaten to seriously harm Plaintiffs…including by depriving them of their rightful share of congressional representatives and by depressing the 2020 Census count itself, which remains ongoing.” 

California is home to millions of undocumented immigrants. It was already at risk of losing a House seat and an electoral vote given demographic changes after the next census. The lawsuit warns it could lose more than one district and notes that the state is specifically name-checked in the Trump order. 

“The Memorandum and the exclusion of undocumented immigrants from the census apportionment count will likely cause Plaintiffs to lose one or more seats in the U.S. House of Representatives and, consequently, one or more electors in the Electoral College. President Trump expressly states in the Memorandum that this is a primary purpose of excluding undocumented immigrants from the apportionment count,” the lawsuit reads.

The California suit builds on burgeoning criticism from Democrats over the order and joins a number of other legal efforts to block its implementation, sparking the possibility of another high-profile Supreme Court fight over the rule. 

“We must call this what it is: another unconstitutional power grab by a president desperate to shift political influence away from places where many immigrants live. It didn’t work when he tried to force an unlawful citizenship question into the census, and it won’t work now,” said Los Angeles City Attorney Mike Feuer (D).