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.