San Francisco, in coalition with New York and others, files second lawsuit to keep census fair

Coalition of states, cities and counties oppose President Trump’s newest ploy to keep undocumented immigrants out of apportionment

SAN FRANCISCO (July 24, 2020) — City Attorney Dennis Herrera today joined a large coalition of states, cities and counties led by New York Attorney General Letitia James in filing a lawsuit against President Donald Trump for attempting to, once again, illegally leave millions out of the apportionment base that establishes the number of members in the House of Representatives that each state receives. The lawsuit seeks to stop the Trump Administration from politicizing the census and violating basic constitutional commands, and instead aims to ensure the Administration counts the “whole number of persons” residing in the country for apportionment, as the U.S. Constitution unambiguously requires.

City Attorney Dennis Herrera

Herrera issued the following statement on the lawsuit:

“The president is once again seeking to weaponize the census for his own political agenda. For 150 years the census has counted all people in this country — regardless of immigration status. That is what the Constitution requires, and every president has respected it.

This effort by the Trump Administration is the latest pernicious attempt to make undocumented people civically invisible. This Administration has tried to undermine the census before — and lost that case to our coalition. After losing in court, the President is now trying a new way to undermine our Constitution.

The census is a critical tool in our democracy. It is used to distribute hundreds of billions of dollars in taxpayer funds for things like health care, transportation and school lunches. It determines how representation in Congress is allocated.

It’s clear that the President is desperate to try anything he can to exclude people from being lawfully counted in the census. We stand with the Constitution, and we will continue to defend the law.”

The Constitution is abundantly clear: For purposes of apportioning members of the House of Representatives among the states, every person residing in the U.S. during the census, regardless of legal status, must be counted. But, this past Tuesday, July 21, 2020, President Trump declared, in a presidential memorandum, his intent to exclude undocumented immigrants from the apportionment base — the first time such action has been taken in our nation’s history.

This week’s effort by President Trump and his administration to exclude undocumented immigrants from the apportionment base is just the latest in the Trump Administration’s illegal maneuvers to manipulate the census count and congressional apportionment. In 2018, Secretary Ross directed the Census Bureau to use the 2020 Census to demand information on the citizenship status of every resident in the country. Plaintiff coalitions from across the country, including the New York Attorney General’s coalition that San Francisco joined, fought the Administration’s attempt. The administration claimed it needed to collect the information to better enforce the Voting Rights Act, but after a legal battle that made its way through multiple federal courts last year, the U.S. Supreme Court ruled in favor of the plaintiffs and prohibited the Trump Administration from adding a citizenship question to the census. The Supreme Court agreed with lower court rulings that the Trump Administration’s purported justifications were pretextual. This week’s presidential memorandum lays bare the real reason the Administration tried to add the citizenship question to the census: to exclude undocumented persons from the “whole number of persons” that constitutes the apportionment base and to discriminate against Hispanics and noncitizens.

The Fourteenth Amendment clearly states that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State…” The framers of the Fourteenth Amendment deliberately chose the phrase “whole number of persons” to refer to all persons living in each state — including the entire immigrant population. In fact, as James Madison explained at this country’s founding, the “fundamental principle” of the Constitution ensures that “the aggregate number of representatives allotted to the several states, is to be…founded on the aggregate number of inhabitants.” Our Country’s longstanding history, practice and judicial and administrative precedents have since established that the apportionment of representatives must be based on all persons living in each state, regardless of their citizenship or immigration status.

Finally, until the president’s announcement this week, even other members of his administration have acknowledged that apportionment must be based on all persons. The person tasked with overseeing the census — Secretary Ross — testified under oath last year during a congressional committee hearing that “The constitutional mandate, sir, for the census is to try to count every person residing in the U.S. at their place of residence on the dates when the census is conducted” — making no mention of an individual’s legal status.

In the lawsuit — filed against President Trump, the U.S. Department of Commerce, the U.S. Census Bureau, Commerce Secretary Wilbur Ross and Census Director Steven Dillingham, and joined by 21 attorneys general, nine cities, four counties and one combined city and county — the coalition argues that apportionment based on a population count that unlawfully excludes undocumented immigrants will:

  • Lead to the loss of congressional seats and presidential electors in the Electoral College,
  • Skew the division of electoral districts within jurisdictions by impairing state and local redistricting efforts that rely on the census count,
  • Reduce federal funds to state and local jurisdictions by deterring immigrants from responding to the decennial census that is currently underway, and
  • Degrade the quality of census data that states and local jurisdictions rely on to perform critical governmental functions.

The coalition also alleges in today’s lawsuit that public statements and actions by President Trump and his administration show that the Administration is motivated by racial animus against immigrants of color, and by a desire to curb the political power of immigrant communities of color. The president’s memorandum explicitly states that the Trump Administration’s goal is to reduce political influence and congressional representation to jurisdictions with a larger share of undocumented immigrants. Further, the president’s announcement is clearly intended to promote fear and deter participation in the census by immigrants and their families, as it comes just weeks before enumerators are scheduled to go into the field to encourage households to respond to the census.

The coalition specifically argues that the exclusion of undocumented immigrants from the apportionment base violates the Fourteenth Amendment; the Due Process Clause of the Fifth Amendment; the Tenth Amendment; and the Administrative Procedure Act, by being both contrary to law and arbitrary and capricious. Additionally, this exclusion conflicts with long-recognized Supreme Court precedent. Attorney General James and the coalition ask the court to force the president and his administration to hold to their obligation to base congressional apportionment on “the whole number of persons in each state” and to forbid them from excluding undocumented immigrants — or any other person — from the apportionment base.

Joining City Attorney Herrera and Attorney General James in filing today’s lawsuit are the attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia as well as the cities of Central Falls, RI; Chicago, IL; Columbus, OH; New York, NY; Philadelphia, PA; Phoenix, AZ; Pittsburgh, PA; Providence, RI; and Seattle, WA and the counties of Cameron, El Paso, and Hidalgo in Texas and Monterey in California .

The case is: State of New York et al. v. U.S. Department of Commerce et al., U.S. District Court for the Southern District of New York case No. 1:20-cv-05770, filed July 24, 2020.

Additional documentation from the case is available on the City Attorney’s website at:

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