Alabama Lawsuit Seeks to Force 2020 Census to Exclude Undocumented Immigrants From National Count

Interview with Thomas A. Saenz, president and general counsel, Mexican American Legal Defense& Educational Fund MALDEF, conducted by Scott Harris

The state of Alabama and Republican Rep. Mo Brooks filed a lawsuit late last year against the Commerce Department and the Census Bureau. The suit seeks to force the Census Bureau to exclude the estimated population count of undocumented immigrants from the 2020 Census, key data used for reapportionment – the reallocation of the 435 seats in the U.S. House of Representatives that is mandated to occur every 10 years. The state argues that the current system of apportioning congressional seats gives an unfair electoral advantage to states with more undocumented immigrants.

Alabama’s lawsuit follows a pattern of Republican party attempts to manipulate the U.S. Census to gain partisan political advantage. The Trump administration’s drive to include a question on citizenship in next years’ census came to an end after a U.S. Supreme Court ruling questioned the rationale for inserting the question.

Between The Lines’ Scott Harris spoke with Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund or MALDEF. Here, he explains why MALDEF filed a cross-claim lawsuit on behalf of Latino registered voters in several states, to prevent the U.S. Department of Commerce and the Census Bureau from deciding on their own to manipulate the required data for reapportionment by excluding the estimated undocumented population, in violation of what is clearly required by the U.S. Constitution.

THOMAS SAENZ: We intervene on behalf of folks who would be harmed if Alabama were to prevail because we frankly didn’t trust the Trump administration to put forward the most vigorous defense, given Donald Trump’s and others on his staff’s views – quite public – about who should be included in the census and who should be represented in Congress. Now, a fortunate development is the case began as a challenge to both reapportionment, which as you know, is the first thing that happens after a decennial census, which is reallocating among the states, the 435 seats in the House of Representatives, and a challenge to the funding formulas that you’ve described. Alabama has now, at least for the moment, a limited case totally to reapportionment. It is not any longer, at least in this lawsuit, challenging the funding formulas – so many of them used to distribute federal funding. But it’s still critically important that the total population be included in reallocating the 435 seats in the House rather than basically discounting – entirely subtracting – some estimate of the undocumented population. So we intervene simply because we do not believe that the Trump administration could be trusted to put forward the most vigorous defense.

BETWEEN THE LINES: Thomas, what is the connection, if any, between this effort by the state of Alabama to discount the undocumented immigrant population from the census count and the failed effort by the Trump administration to include a citizenship question in the 2020 Census that by all accounts would have dissuaded, millions possibly, from participating in the census and thereby maybe attain some of the same goals that Alabama’s after?

THOMAS SAENZ: Well, we think there’s a clear connection, and this is the main reason we don’t believe the Trump administration can be trusted to put forward a vigorous defense because the clear motive of the citizenship question being added as late as it was, was to trigger a massive undercount of the Latino immigrant population. Now that probably would have equally affected the undocumented as well as lawful permanent resident immigrants. In this case, Alabama is targeting specifically, but very formally for exclusion, the undocumented population. And interestingly, even as the Trump administration was abandoning its efforts to include the citizenship question after the Supreme Court ruled, the president issued in executive orders seeking to obtain citizenship data in another form in order to permit the process of redistricting within each state, which is different from reapportionment but clearly related. Redistricting within each state could be limited to voters if a state or locality chose to do that. The goal was to provide them with the data to discount all non-citizen immigrants in redrawing lines within each state. Now Alabama might’ve been one of the states that might choose to try to do that. We think that’s unconstitutional. But there is a clear through-line that connects all of these things. The citizenship question, Alabama’s effort to discount the undocumented in reapportionment and this invitation by the Trump administration for localities or states to redraw districts within a state based on something other than total population, which is what has been used by every state and locality historically.

BETWEEN THE LINES: Thomas, can you review for our listeners what the Constitution says about the every 10-year census that must take place? What do they say specifically about who is counted?

THOMAS SAENZ: Our Constitution has said from the beginning – only modified to remove the notorious “three-fifths rule” after the Civil War – that there should be a decennial enumeration of all persons residing in the United States. And that’s pretty clear language. This is why we are confident that Alabama will fail in this endeavor, but we have very recently filed a cross claim out of a concern that even if Alabama were to lose in trying to force the subtraction of the undocumented population – that the Trump administration might try on its own voluntarily to subtract that population. So we are now seeking a ruling that not only would reject Alabama’s contention that you’re required to remove that population, but would go further and say you may not constitutionally remove that population because they are persons residing in the United States.

For more information visit the Mexican American Legal Defense and Educational Fund (MALDEF)at

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