|RICHMOND (November 30, 2020) – Today, Attorney General Mark R. Herring is joining a coalition of states, cities, and counties in going in front of the United States Supreme Court to argue against President Trump’s illegal attempt to leave millions out of the population that is counted to establish the number of members of the House of Representatives that each state receives. Despite numerous losses in its efforts to politicize the Census, the Trump Administration is again seeking to violate basic constitutional and statutory commands. In oral arguments today, Attorney General Herring and the coalition will argue that the Administration must count the “whole number of persons” residing in the country for apportionment, as the U.S. Constitution and the Census Act unambiguously require.
“Even though he has lost in court numerous times, President Trump still continues to try to undermine and sabotage the 2020 Census,” said Attorney General Herring. “The number of people living in each state directly determines how many Representatives that state has and every single person living in Virginia and in every other state in the country deserves to be represented in Congress. I will continue to fight the Trump Administration’s blatant illegal politicization of the census and attempts to undercount and manipulate Congressional representation.”
In July, Attorney General Herring joined a coalition of states, cities, and counties in filing a lawsuit against President Trump, Secretary of Commerce Wilbur Ross and others for attempting to illegally leave millions out of the population that is counted establishing the number of members in the House of Representatives that each state receives. The lawsuit sought to stop the Trump Administration from violating the longstanding constitutional and statutory requirement to count the “whole number of persons” residing in each state for apportionment. In August, Attorney General Herring and his colleagues filed a motion for summary judgment in the case, which was granted in September but a three-judge court that stated that the president’s plan to exclude certain groups from the apportionment base was unlawful.
In today’s argument, the coalition will argue that excluding undocumented immigrants from the apportionment base will lead to the loss of congressional seats and presidential electors in the Electoral College, as well as degrade the quality of census data that states and local jurisdictions rely on to perform critical governmental functions. Additionally, excluding immigrants can reduce resources to state and local jurisdictions.
The U.S. Constitution and Census Act clearly state that, for purposes of apportioning members of the House of Representatives among the states, every person residing in the U.S. on Census Day — or April 1 this past year —must be counted. But, in July, President Trump declared, in a presidential memorandum, his intent to exclude undocumented immigrants from the apportionment base — the first time such action has been taken in the nation’s history.
Specifically, Article I Section 2 of the U.S. Constitution says representatives shall be apportioned among states according to their respective numbers. The major exception to this rule was the Three-Fifths Compromise, which was instituted to resolve disputes over how and whether slaves would be included in a state’s total count. The compromise counted each slave as only three-fifths of any other person, specifically limiting the number of representatives and electoral-college votes — and essentially the power — of states with large slave populations.
The coalition specifically argues that the exclusion of undocumented immigrants from the apportionment base violates, Article I Section 2 of the U.S. Constitution, the Fourteenth Amendment, and the Census Act. Additionally, this exclusion conflicts with long-recognized Supreme Court precedent. The coalition asks the Supreme Court to require the president and his administration to adhere to their obligation to base congressional apportionment on “the whole number of persons in each state” and to forbid them from excluding undocumented immigrants from the apportionment base, just as the lower court did.
Previously, Attorney General Herring successfully blocked the Trump Administration’s attempts to sabotage the census with a poison pill citizenship inquiry that was clearly designed to suppress response rates especially among immigrant communities. Attorney General Herring and his colleagues sued the Department of Commerce in April 2018 to protect the census, and successfully argued that the Trump Administration was not being honest about its motivations for including a citizenship question.
Joining Attorney General Herring in today’s case are the attorneys general of Colorado, Connecticut Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin and the District of Columbia. The attorneys general are joined by the cities of Central Falls, RI; Chicago, IL; Columbus, OH; New York, NY; Philadelphia, PA; Phoenix, AZ; Pittsburgh, PA; Providence, RI; Seattle, WA; the city and county of San Francisco, Monterey County in California, Howard County in Maryland, Cameron, El Paso, and Hidalgo Counties in Texas; and the bipartisan U.S. Conference of Mayors.