Nevada Attorney General Aaron Ford says he has joined a coalition of states including New York and Colorado, in a lawsuit against President Donald Trump’s memorandum to exclude undocumented immigrants from being counted in this year’s census.
The announcement on Friday comes as the Trump administration faces a flurry of lawsuits filed this week by 16 states and additional cities and municipalities, the American Civil Liberties Union (ACLU) and organizations such as the Mexican American Legal Defense Fund and the Asian Americans Advancing Justice, among others.
“Proud to join you in this lawsuit, General @TishJames,” Ford tweeted in response to New York Attorney General Letitia James’ Twitter announcement that she was suing the president.
Nevada has the highest proportion of undocumented immigrants of any state in the country with the population accounting for 7 percent in 2016. Undocumented immigrants also comprised 11 percent of Nevada’s workforce in the same year.
The lawsuit argues the Trump administration’s move is a constitutional violation, specifically against the Fourteenth Amendment guarantee that “all persons born or naturalized” in the United States cannot be denied their rights by law. The lawsuit also states the memorandum is in violation of Due Process Clause of the Fifth Amendment and the Administrative Procedure Act.
“The constitutional mandate to base apportionment on ‘the whole number of persons in each State’ could hardly be clearer, and the Supreme Court has long recognized that undocumented immigrants are ‘persons’ under the Fourteenth Amendment,” states the complaint. “The Memorandum’s open disregard of the Constitution’s plain text is reason enough to invalidate it and to prevent Defendants from taking steps to carry out its unlawful policy.”
Trump’s memorandum and the lawsuit focus on Section Two of the Fourteenth Amendment, which directly affects each state’s political representation based on population count by setting the framework of how many seats each state gets in the House of Representatives.
“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed,” states Section Two of the Fourteenth Amendment.
The exclusion of undocumented immigrants from the census would cause three states to lose seats in the House of Representatives — California would lose two seats, Florida would only gain one seat instead of two and Texas would gain two instead of three seats, according to a Pew Research Center report.
The only people currently excluded from census counts, according to Census Bureau rules, are foreign tourists and business travelers not living in the country. Territories without voting representation in Congress, such as the District of Columbia, Puerto Rico and U.S. Island areas, are also excluded from the apportionment total.
Besides political representation, data from the census is used to apportion $1.5 trillion a year in federal funding and redistricting, which also determines political representation in electoral votes.
The lawsuit continues to argue that undocumented immigrants have established an important presence in the country, with more than nine million immigrants having lived in the U.S. for five years or more, based on data by the Migration Policy Institute.
“They are members of their state and local communities,” states the lawsuit, adding that undocumented immigrants work and pay taxes in their communities and have children who are U.S. citizens.
Common Cause, a government watchdog group, was the first to file a lawsuit against the president earlier this week and a spokesperson told The Washington Post Trump’s measure would be harmful to the country.
“When our neighbors aren’t represented and included in all counts, entire communities lose out,” Keshia Morris Desir, Common Cause’s census and mass incarceration project manager, said. “Towns and cities across the country would be deprived of vital resources — public schools, firetrucks, and COVID-19 recovery — if millions of families are erased from census counts through the Administration’s attempted end-run around the United States Constitution.”
Democratic lawmakers scheduled an emergency hearing next week in response to the measure that could include Commerce Secretary Wilbur Ross and Census Bureau Director Steven Dillingham, among others.
In his memorandum, Trump said he seeks to exclude undocumented immigrants because they are not citizens of the United States.
“Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government,” Trump said.
However, the president does not have final legal authority over the census count. Article I of the Constitution assigns the power to Congress.
The memorandum argues against the point, stating that in requiring the Commerce secretary to send data points to the president, who then distributes the information to Congress, it gives him the authority to determine who is counted and who is not.
The Census Bureau faces additional problems, such as struggling to make its current deadline on Dec. 31. The agency petitioned Congress for a four-month extension amid delays resulting from the COVID-19 pandemic.
The Fair and Accurate Census Act, introduced in the House of Representatives, would approve the extension, but has not been passed by the House or the Senate.