Alabama Sues Over How Census Counts US Population

Rep. Mo Brooks (R-AL) speaks during the DC March for Jobs in Upper Senate Park near Capitol Hill, on July 15, 2013 in Washington, DC. Drew Angerer/Getty Images

The state of Alabama is suing the federal government over how it counts people in the census, claiming it will lose a seat in Congress because it has a low illegal-alien population.

The lawsuit, filed May 21, 2018, in U.S. District Court for the Northern District of Alabama, is garnering attention now after two federal judges permanently enjoined the Trump administration from adding a citizenship question to the 2020 census earlier this month.

The dual rulings came after the Supreme Court ruled June 27 in Department of Commerce v. New York that the citizenship question couldn’t be included in the once-a-decade census. Backed by the four liberal justices, Chief Justice John Roberts rejected Commerce Secretary Wilbur Ross’s claim that the citizenship question was needed to gather data to help enforce the Voting Rights Act, writing that the rationale “seems to have been contrived.”

“Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020,” President Donald Trump wrote on Twitter.

Alabama and plaintiff Rep. Mo Brooks, a Republican who represents an Alabama district in the U.S. House of Representatives, expect the Yellowhammer State to lose a seat in the House (and, therefore, in the Electoral College) when that body is reapportioned after the 2020 census. They claim in the suit that including illegal aliens in the population count deprives Alabama of its “rightful share of political representation,” by counting people illegally present in the country.

They also argue that counting those individuals violates the Constitution’s provisions governing congressional apportionment and the Electoral College, and prevents the government from conducting a constitutionally mandated “actual enumeration” of the population.

The suit also asserts that counting such individuals is “arbitrary and capricious,” and “contrary to law” under the Administrative Procedure Act, the same statute that the Supreme Court relied on its June 27 ruling barring the citizenship question from being included on the census questionnaire.

John S. Baker, professor emeritus of the Paul M. Hebert Law Center at Louisiana State University, said it’s unfortunate that Americans won’t get to answer the citizenship question on the approaching census.

“This is information that the American people deserve to have,” Baker told attendees at a Federalist Society seminar at the Mayflower Hotel in Washington on July 29.

The conventional estimate that there are 11 million to 12 million illegal aliens present in the United States has been called into question, he said. That figure was based on an estimate of false responses to the American Community Survey (ACS), an ongoing survey conducted multiple times a year by the U.S. Census Bureau, a branch of the U.S. Department of Commerce, he said.

Many people falsely answer that they are U.S. citizens when completing the ACS, he said.

A study by Yale University that Trump referenced in a July 11 executive order puts the illegal alien total population figure at between 16.2 million and 29.5 million. In the order, Trump asked federal agencies that already collect citizenship information to make it available.

“Academic researchers have also been unable to develop useful and reliable numbers of our illegal alien population using currently available data. ... The fact is that we simply do not know how many citizens, non-citizens, and illegal aliens are living in the United States,” the order stated.

At the Federalist Society event, litigator David B. Rivkin Jr. said the citizenship question is crucial.

“The question is not only legitimate, it is constitutionally compelled,” he said.