4 states sue to block illegal migrants from census count used to assign congressional seats, electoral votes

The attorneys general of Louisiana, Kansas, Ohio and West Virginia are suing to block the U.S. Census Bureau from including illegal immigrants in the count used to apportion congressional seats and electoral votes.

The lawsuit says Texas gained one congressional seat and one electoral vote, and California kept a congressional seat and an electoral vote "that it would have otherwise lost."

The attorneys general argue Louisiana and Kansas are each likely to lose a congressional seat and an electoral vote in the 2030 reapportionment if the practice continues.

In February 2018, the U.S. Census Bureau developed criteria for the 2020 census, dubbed the "Residence Rule," stating that foreign nationals living in the U.S. are counted in the census and allocated to the state where their "usual residence" is located. The lawsuit notes how that was regardless of whether those foreign nationals are lawfully present in the U.S. and "regardless of whether any visa they may possess is 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 holding temporary visas ('nonimmigrant aliens') in the census figures used for determining the apportionment of the House of Representatives and Electoral College votes." 

The lawsuit says the Residence Rule violates the Fourteenth Amendment's equal representation principle by "robbing the people of the Plaintiff States of their rightful share of political representation, while systematically redistributing political power to states with high numbers of illegal aliens and nonimmigrant aliens," as well as Article II, Section 1, of the United States Constitution by "necessitating an unconstitutional distribution of Electoral College votes among the states." 

"The Residence Rule also breaches 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 at both the Founding and in the Reconstruction era to be restricted to United States citizens and permanent resident aliens who had been lawfully admitted to the body politic constituted by the Constitution." It continues, "Aliens who are unlawfully 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 U.S. also did not qualify." "But, in any case, the Fourteenth Amendment separately requires that illegal aliens who have been denied the right to vote be excluded from state apportionment," the lawsuit says. "Thus, the actual enumeration of the population of the states cannot include such aliens. Only U.S. citizens and lawful permanent residents ("LPRs," also known as "green card holders") can be included."