…And It Only Took 40 Years: Judge Rules States Have Standing to Challenge Inclusion of Illegal Aliens for Reapportionment

It only took 40 years, but a Federal district judge finally figured out that a state should have legal standing to sue the Census Bureau for including illegal aliens in the congressional district reapportionment process.

Judge R. David Proctor looked at the controversy and for the first time had the courage to consider the fact that small states like Alabama are seriously injured by allowing certain large states to attract illegal residents and then pack them in to try to increase political power.  California has been doing this for decades.

At first blush this seems a no brainer. Although the Constitution mandates that the Census count the number of “whole persons,” that term has always had a flexible interpretation.  “Persons” are, in some contexts, considered corporations, but the Census Bureau has never counted corporations. Similarly, the Census Bureau has excluded persons that are domiciled in foreign countries – that is people who just happen to be here on Census Day but don’t actually live in the U.S. permanently.

The framers never considered the possibility that persons with no right to be in the U.S. would demand the level of political representation that would actually shift the balance of power in the House of Representatives.  And yet it has been going on – and getting worse – decade after decade.  The Census Bureau refuses to change the practice on its own. 

The litany of challenges began with a case called FAIR v. Klutznick, way back in 1979 – indeed it was the first major undertaking of the Federation for American Immigration Reform (FAIR) after its founding earlier that year.  In that first case, in the U.S. District Court for the District of Columbia, the judge claimed that citizens could not show vote and power dilution simply because of the inclusion of illegal aliens for purposes of reapportionment.

In a later case in which FAIR also assisted, states themselves were also held to be without standing to challenge the flagrantly absurd practice of providing political representation to people with no right to be in the country (Ridge v. Verity, 1990). Again a district judge punted on the merits of the case by claiming the state could show no legal interest in the outcome of a practice that could strip the state of one or more representatives in Congress.

All this is hard to swallow as we watch the ACLU and related organizations running into Federal court to file suit after suit challenging the Trump Administration on behalf of plaintiffs with virtually no attachment to the society – often plaintiffs that aren’t even in the United States. And yet somehow the “standing doctrine” is never a bar to the courthouse door.  But try to get a merits hearing on a fundamental issue facing American citizens – if immigration policy is the core of the argument – then standing is sure to loom as an insurmountable obstacle to consideration of your case.

Nearly 20 years have passed before another attempt was made: but credit the State of Alabama and the intrepid Representative Mo Brooks (R-Ala.) with the effort – along with the Immigration Reform Law Institute as a supporting player.  In the U.S. District Court for the Northern District of Alabama, Judge Proctor considered the government’s inevitable Motion to Dismiss for lack of standing and – for once – recognized that the injury complained of is serious, corrosive of our democracy, and fundamentally unfair.  His decision was issued on June 5.

If the Census Bureau wants to count illegal aliens for other purposes, say for the purposes of data collection and allocation of federal funds, that is perfectly fine.  But not to allocate the federal districts in Congress.

The case is State of Alabama v. Dept. of Commerce, No. 2:18-cv-00772 (N.D. Ala.), and while it is a long way from achieving a final decision on the merits, it is a positive first step in very long path to success.  When it comes to immigration policy, persistence is always a winner. 

About Author


Dan is the Federation for American Immigration Reform (FAIR)'s President after joining the organization in 1982. He has testified more than 50 times before Congress, and been cited in the media as "America's best-known immigration reformer." Dan has appeared on virtually every significant TV and radio news/talk program in America and, in addition to being a contributing editor to ImmigrationReform.com, has contributed commentaries to a vast number of print media outlets.


  1. avatar

    The only place in our governmental system where illegal aliens should have any role is in deportation proceedings.

  2. avatar

    CA has 3 reps because of illegals. The citizens on NH only have 2 for the whole state. Why do illegals get more reps than my state?

    • avatar
      Timothy J Vaughan on

      That’s unequivocally corrupt…and unbelievably unfair to give CA illegals a bigger voice that the entire State o NH.

  3. avatar
    James C Bertram on

    We the people have been founded on Christian bearing, English speaking ways of life. This will all come out in the wash and we strongly convicted possessors of the almighty Holy Spirit will be victorious in end times.

  4. avatar

    What’s amazing is that this is even a question. I’m not a judge, or lawyer, but it seems obvious to myself, as well as millions more, that illegal aliens have no standing in our system of government. As always, the Democrats only care about themselves, and their power, and not about Americans.

  5. avatar

    This will be appealed, unfortunately, probably in the 9th circus and voided? Then Robert’s won’t allow the Supreme Court to administer a decision until after the census in 2020!

    • avatar

      Illegal aliens number one should not be here.
      And second of all even have the right to VOTE IS JOKE AS WELL A DISGRACE. These politicians should be fired for doing illegal actions. sanctuary states should be sued!!!
      Also no funding for those states let them pay out of there own pockets not ours….

      • avatar
        Francisca Sawyer on

        Illegals have no rights.
        No tights to health care.
        No tights to education.
        No rights to have driver license.
        No right to vote.
        They need to be deported. People need to sponsor and be responsible for illegals. Help them become legal.
        In the meantime the sponsors foot the bill.

    • avatar

      Fortunately, the 9th Circuit can hear only cases filed in lower courts within its Circuit. I assume the case was filed in Alabama.

  6. avatar
    Robert Laity on

    illegal aliens are NOT entitled to be represented in our congress. They don’t belong here.

  7. avatar

    why would they let the census bureau use the collection for allocation of federal funds. Illegals are not suppose to be able to draw ANY federal benefits