The Legal War Against Trump’s Anti-Immigrant Census Power Grab Ramps Up

US President Donald Trump (C), flanked by US Secretary of Commerce Wilbur Ross (L) and US Attorney General William Barr, delivers remarks on citizenship and the census in the Rose Garden at the White House in Washing... US President Donald Trump (C), flanked by US Secretary of Commerce Wilbur Ross (L) and US Attorney General William Barr, delivers remarks on citizenship and the census in the Rose Garden at the White House in Washington, DC, on July 11, 2019. (Photo by Nicholas Kamm / AFP) (Photo credit should read NICHOLAS KAMM/AFP/Getty Images) MORE LESS
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July 24, 2020 10:29 a.m.

A new lawsuit filed Thursday challenges President Trump’s new anti-immigrant census policy, expanding the legal battlefield over Trump’s push to deprive immigrant communities of political power.

It is the second case that will target the recently announced Trump measure, which seeks to exclude undocumented citizens from the 2020 census count that will determine how many House representatives each state gets. Other lawsuits challenging the policy are expected to be filed.

Thursday’s lawsuit alleges the new policy is unconstitutional and that it violates the statutes Congress wrote for how apportionment numbers are transmitted.

“The Memorandum makes no serious attempt to square the President’s new ‘policy’ with the governing statutory and constitutional provisions described above or with over two centuries of contrary practice,” the lawsuit says.

Bringing the lawsuit is the voter advocacy group Common Cause and the immigrant rights organization Partnership for the Advancement of New Americans. The cities of Atlanta and Passiac, New Jersey have also signed on, as have several individual voters from New York and Florida. The lawsuit was filed in D.C. federal court.

The new policy is the Trump administration’s latest attempt to rig the census to boost the electoral advantage of white communities to the detriment of more diverse populations — and it might be the most extreme example of that approach yet.

Trump had tried and failed to put a citizenship question on the 2020 census, a move the Supreme Court blocked last year because administration’s stated reason for doing so was bogus. Trump then ordered the Census Bureau to assemble citizenship data using existing records. On Tuesday, Trump announced that data would be used to remove undocumented immigrants from the count that will be used for congressional apportionment.

Thursday’s lawsuit puts that action in the context of the citizenship question litigation, which led to the revelation of a scheme to obtain citizenship data so that states could tilt their legislative maps in the favor of white, GOP-leaning communities.

“All of these actions are part of an unconstitutional concerted effort to shift political power away from racial and ethnic minorities, chiefly Latinos, to ‘Republicans and non-Hispanic whites,'” the lawsuit says. It quotes a memo by a Republican gerrymandering expert who had pushed the administration to add a citizenship question.

The lawsuit argues that the now-deceased expert looked at state legislative redistricting because even he “knew that the Constitution and federal law expressly require use of total population as an apportionment base at the federal level.”

The new congressional apportionment plan violates the Constitution, according to the lawsuit, because it is discriminatory and because it runs afoul  the Constitution’s mandate that the “whole number of persons” determine the House seats for each state.

The lawsuit points to the Supreme Court’s 2016 Evenwel decision, a case where conservative advocates were trying to ban non-citizens from being included in the  count used for the process of drawing state legislative maps.

The court ruled unanimously that total population could be used, and five of justices who signed onto the majority opinion remain on the court.

In that opinion, Justice Ruth Bader Ginsburg noted that Congress explicitly rejected the idea of excluding non-voting classes from from the apportionment count — a point Thursday’s lawsuit reiterated.

The lawsuit also calls out Attorney General Bill Barr, who was at the Justice Department during one of several previous episodes where the department considered the question of whether undocumented immigrants should be counted for apportionment.

As it had on other occasions, the Justice Department concluded in 1989 that the Constitution “require[d] that inhabitants of States who are illegal aliens be included in the census count,” the lawsuit said, quoting an internal DOJ memo.

“At that time, current Attorney General William Barr was the head of DOJ’s Office of Legal Counsel,” the lawsuit said, referring to the office that pens such internal legal guidance. “In that position, he would be expected to have reviewed and approved the DOJ opinion.”

The challengers are asking the courts to block the policy now, rather than wait until the apportionment data is released, because, they allege, policy is already having a negative impact against them.

“At this moment, the Memorandum is causing fear and confusion among the immigrant population and reducing the likelihood that immigrants (both documented and undocumented) will respond to the census survey,” the lawsuit said. “Unless Defendants’ actions are declared unlawful and void now, before the conclusion of the count, the results of the census—and the consequent impact on congressional apportionment—will be irretrievably altered. It will be too late to remedy these harms in January 2021, when President is scheduled to transmit the results of the count to Congress.”

Read the lawsuit below:

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