Kansas AG on Counting Illegal Immigrants in the U.S. Census and Representation

Constitutional Basis for Census and Apportionment

• 📜 The U.S. Census is mandated by Article 1, Section 2 of the Constitution, requiring an actual enumeration of inhabitants for apportioning House seats and electoral votes.
• 🔑 The founding era definition of "inhabitants" implied a fixed, permanent connection to a place and a legitimate tie to the political community.
• ⚠️ Under this definition, individuals present illegally, subject to removal, are considered temporary and contingent, thus not bonafide members of a state for apportionment purposes.

Legal Challenges and Precedents

• ⚖️ A multi-state lawsuit led by Kansas challenges the Department of Commerce's practice of counting illegal aliens in the census.
• 📊 Counting illegal aliens is argued to inflate counts for certain states, granting them disproportionate political power at the expense of states with fewer illegal immigrants.
• 🏛️ Supreme Court cases like Department of Commerce v. New York and Trump v. New York have addressed census conduct and exclusion, but the legality of counting or excluding illegal aliens for apportionment remains an open question.
• 🗳️ While courts have established that districts must be equal in total population (not just eligible voters), they have not set an upper boundary for who must be counted, leaving discretion to Congress and the courts.

Impact on Representation and Voting Power

• 📉 The inclusion of illegal aliens in the census is seen as violating the principle of equal representation by making votes in some states count less than votes in others.
• 👥 This practice is argued to dilute the voting power of citizens in states with fewer illegal immigrants.
• 📈 Historically, while illegal aliens have been counted, the scale of illegal immigration in recent decades has significantly impacted apportionment outcomes.