Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes
Released: 2012-04-13T00:00:00

Introduction

In the 2010 census, as in prior decennial censuses, the total population of the United States was counted, including U.S. citizens, lawfully present aliens, and unauthorized aliens. Some have asked whether aliens, particularly those in the country unlawfully, should be excluded from the census count. It appears one concern is that these individuals are included in the data used to apportion House seats among the states and determine voting districts within them, which some perceive as unfair to states or districts with small alien populations. One question raised by this idea is whether the exclusion of aliens could be done by amending the federal census statutes (Title 13 of the U.S. Code ), or whether such action would require an amendment to the Constitution.

The Constitution requires a decennial census to determine the "actual Enumeration" of the "whole number of persons" in the United States. The data must be used to apportion the number of House seats among the states. While not required by the Constitution, the data are used for other purposes as well, including by the states to determine voting districts within a state.

The Constitution expressly vests Congress with the authority to conduct the census "in such Manner as they shall by Law direct." Congress has delegated this responsibility to the Secretary of Commerce and, within the Department of Commerce, to the Bureau of the Census. The Census Bureau counts the total resident population of the states, with each individual counted at his or her "usual residence." This includes both citizens and aliens.

There is no legal requirement that the Census Bureau collect information regarding citizenship status. The 2010 census form sent to all households did not include questions regarding citizenship status or place of birth. The Commerce Secretary has used his discretion to ask for such information on the American Community Survey (ACS), which is sent monthly to a sampling of households. Historically, questions regarding citizenship status have not been consistently included in the census population surveys. At least two early censuses (1820 and 1830) included a category for foreigners not naturalized, and later censuses asked about place of birth. In modern times, the census questionnaire sent to all households has not included such questions, although the questionnaire sent to a sampling of households (the "long form," which has been replaced by the ACS) has asked for such information.

Legislation in Recent Congresses

From time to time, Congress has considered legislation that would exclude all aliens or only unauthorized aliens from being included in the census to apportion House seats among the states. A discussion of selected legislation from Congresses before the 112 th and 111 th Congresses is included in the Appendix . As of the date of this report, no legislation regarding the exclusion of aliens from the census data for House apportionment has been introduced in the 112 th Congress. Since the data for the House apportionment among the states had to be submitted to Congress and certified by December 31, 2010, legislation addressing the most recent apportionment would be moot. However, in the event that the ongoing issue of the presence of unauthorized aliens in the United States remains unresolved by congressional legislation or executive agency action, the issue of whether to exclude unauthorized aliens from census data for apportionment may arise with regard to guidelines for future decennial censuses and apportionments. Legislation from the 111 th may provide models for future legislation.

In the 111 th Congress, several bills were introduced that would have amended the federal census statutes to explicitly address the treatment of unauthorized aliens. The Fairness in Representation Act ( H.R. 3797 and S. 1688 ) would have required the Commerce Secretary to include some means (e.g., a checkbox) for respondents to indicate they are U.S. citizens or lawfully present in the country on the census forms sent to all households. Additionally, the Commerce Secretary would have been required to make adjustments to the data to prevent unauthorized aliens from being counted for apportioning House seats among the states.

An amendment introduced by Senator Vitter to the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010 ( S.Amdt. 2644 to H.R. 2847 ) would have cut off funding for the census unless the census form included questions on U.S. citizenship and immigration status. The amendment would not have required the information be used for any purpose (i.e., to disregard certain individuals from the apportionment calculation). The amendment was subsequently ruled to be non-germane.

H.J.Res. 11 proposed an amendment to the Constitution so that only U.S. citizens would be counted in the apportionment calculation. Specifically, it would have amended the Constitution to read "Representatives shall be apportioned among the several States according to their respective numbers, which shall be determined by counting the number of persons in each State who are citizens of the United States."

On the other side of the issue, the Every Person Counts Act ( H.R. 3855 ) would have prohibited the Census Bureau from asking about U.S. citizenship or immigration status.

Constitutional Analysis

While the Constitution permits Congress to conduct the census "in such Manner as they shall by Law direct," the census cannot be done in a way that is constitutionally impermissible. Thus, one question raised by the above legislation is whether it is consistent with the constitutional requirements for the decennial census.

It seems clear that Congress could, under its broad constitutional authority to conduct the census, statutorily require the Commerce Secretary to collect information regarding citizenship status. The constitutionality of the other provisions in the legislation would appear to depend on whether the Constitution requires that all aliens must be included in the census count for any reason. If so, then it would appear that any exclusion would have to be done by constitutional amendment. On the other hand, if the Constitution requires such individuals to be excluded from the census count, then Congress could not prohibit the Commerce Secretary from asking questions about citizenship and immigration status.

As mentioned above, it appears some are concerned that aliens, particularly those individuals in the country unlawfully, are included in the data used to apportion House seats among the states and determine voting districts within the states. The next section analyzes whether Congress could statutorily exclude aliens from the census count for these purposes or whether any such exclusion would have to be done by constitutional amendment.

Data for Apportionment Purposes

Constitutional issues could arise if aliens were excluded by statute from the census count for purposes of apportioning House seats among the states. This is because it appears the term "persons" in the original Apportionment Clause and Fourteenth Amendment was intended to have a broad interpretation that is likely expansive enough to include unauthorized aliens. If true, any proposal to generally exclude unauthorized aliens would have to be in the form of a constitutional amendment.

The term "persons/people" appears throughout the Constitution, with its meaning evaluated in the context of each provision. On its face, the term's plain language meaning refers to individuals. However, it has been held to have a less obvious meaning in certain contexts; that is, to include corporations for the Fourteenth Amendment's due process and equal protection guarantees. Here, the question is whether the term refers to only a subset of individuals, U.S. citizens, for purposes of apportioning House seats among the states.

It seems that "persons" is not limited to "citizens," as the Framers would have likely used that term instead had it been their intent. The Constitution uses both the terms "persons/people" and "citizens of the United States," and the terms do not seem intended to be interpreted identically; rather, "citizens of the United States" appears to be a subset of "persons/people." Courts have generally held that aliens, including unauthorized aliens, are "persons" in the context of other constitutional provisions, including other parts of the Fourteenth Amendment. While it does not appear that any court has decided the meaning of the term "persons" for apportionment purposes, a federal district court did state in dicta that the term clearly includes unauthorized aliens.

It could be argued that certain aliens should not be included in the category of "persons" for purposes of apportionment because of their legal or voting status. On the other hand, historically, those without the right to vote or with inferior legal status, including women, children, and convicts, have been included. It should also be noted that some states have historically permitted aliens to vote under certain circumstances. Furthermore, the fact that slaves were to be partially counted when they enjoyed few rights seems to suggest the Apportionment Clause language was intended to be broadly inclusive. Similarly, the fact that the Framers felt compelled to specify the exclusion of "Indians not taxed" may suggest "persons" was understood to otherwise include individuals residing within a state, regardless of legal status. Thus, it can be argued that "[b]y making express provisions for Indians and slaves, the Framers demonstrated their awareness that without such provisions, the language chosen would be all-inclusive."

The debates surrounding the original Apportionment Clause and the Fourteenth Amendment appear to add further support for the conclusion that the term "persons" was intended to be broadly interpreted. The Framers adopted without comment or debate the term "persons" in place of the phrase "free citizens and inhabitants" as the basis for the apportionment of the House, thus suggesting the term "persons" includes free citizens and any other individuals who would be considered "inhabitants." According to James Madison, apportionment was to be "founded on the aggregate number of [the states'] inhabitants." During the debate on the Fourteenth Amendment, Congress specifically considered whether the count was to be limited to persons, citizens, or voters. The term "persons" was used instead of "citizens" due, in part, to concern that states with large alien populations would oppose the amendment since it would decrease their representation. Another concern with using the term "citizen" was that it "would narrow the basis of taxation and cause considerable inequalities in this respect." Congress may also have been influenced by the fact that aliens could vote in some states. Congress has subsequently considered excluding aliens from the apportionment calculation on several occasions, and at least some Members have indicated that any such exclusion would have to be done through constitutional amendment since the Constitution otherwise requires total population as the basis for apportionment.

Furthermore, while the Constitution expressly grants Congress the authority to grant citizenship, it can be argued there is no indication that Congress was given similar power to grant the status of being a "person." Thus, under this argument, Congress would not have the authority to statutorily exclude certain groups of individuals from the definition of "persons" and any such change would have to be done by amending the Constitution. On the other hand, it could be argued that Congress's broad constitutional authority over the census, apportionment, and immigration permits it to exclude certain aliens, particularly undocumented aliens.

The argument could be made that counting aliens as "persons" for apportionment purposes dilutes the voting power of citizens in states without significant numbers of aliens and, therefore, is inconsistent with the Supreme Court's decision in Wesberry v. Sanders that requires congressional districts be drawn equal in population to the extent practicable (i.e., "one person, one vote"). However, Wesberry and its progeny involve intrastate, as opposed to interstate, disparities, and the Court has indicated in another line of cases that the Wesberry standard does not apply to interstate apportionment. Because each state must have at least one House district and a fixed number of Representatives must be allocated among all states, votes in states with populations less than the ideal district are "more valuable than the national average," and it is "virtually impossible to have the same size district in any pair of States, let alone in all 50." Therefore, while the goal of "complete equality for each voter" under the Wesberry standard is "realistic and appropriate for state districting decisions," the Court has explained that it is "illusory for the Nation as a whole." While this second line of cases does not address the specific issue of whether aliens must be counted for apportionment purposes, the cases do seem to undermine the argument that Wesberry and its progeny require their exclusion.

Some have pointed to the fact that the census has historically included questions about citizenship, thus perhaps suggesting that a distinction has been made between citizens and aliens for purposes of counting individuals. It is true that at least two early censuses (1820 and 1830) included a category for foreigners not naturalized and later censuses asked about place of birth. However, such information was not used to exclude any aliens from the census count. Rather, it is clear that such individuals were included in the total count, and it appears the data were collected for informational purposes (similar to how information was collected about age, occupation, etc). It does not appear that aliens have been excluded from any census.

Data Used for Intrastate Redistricting

The U.S. Constitution does not require the use of federal decennial census data for intrastate congressional and state legislative redistricting. It only provides for the use of census data for apportionment among the states, not for redistricting and reapportionment within them. Federal courts have held that states are not required to use federal census data for redistricting, and therefore states can determine what data will be used for redistricting within a state.

Federal courts have considered cases where state legislatures did not use federal decennial census data or even total population data as the basis for redistricting activities. Depending on the factual circumstances, the courts have upheld or invalidated the use of alternatives to official federal decennial data or total population data. For example, in the 1969 decision Kirkpatrick v. Preisler involving Missouri's congressional redistricting plan, the Supreme Court, while invalidating the plan, nevertheless indicated that the use of projected population figures was not per se unconstitutional and that states may properly consider such statistical data if such data would have a high degree of accuracy (however, the Court also stated that the federal decennial census data were the best data available). In Kirkpatrick , the state legislature apparently performed rather haphazard adjustments and projections based on total population and the Court found that the legislature had not justified its methodology. In Burns v. Richardson , the Supreme Court held that, in state legislative redistricting cases, the Constitution "does not require the states to use total population figures derived from the federal census as the standard" of measurement. The Court noted that in earlier cases it was careful to leave open the question of what population basis was appropriate in redistricting activities, even though in several cases total population figures were in fact the basis for comparison when determining whether the Equal Protection Clause of the Constitution had been violated. The Court recognized that, in a particular case, total population might not be the appropriate basis for redistricting plans. In the Burns case, Hawaii had used the number of registered voters as the basis for redistricting the state senate. The Court found that the redistricting plan "satisfies the Equal Protection Clause only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis." Hawaii was found to have a unique situation, wherein the significant number of tourists, military personnel, and other transient population segments distorted the distribution of actual state citizens. The redistricting plan that would have resulted from a total population basis would not have reflected the true state population distribution as accurately as a state citizen population basis. Since a registered voter population basis was the closest approximation of a state citizen population basis, the use of the registered voter population basis was deemed consistent with the Equal Protection Clause. However, the Court was careful to note that the ruling in the Burns case did not establish the validity of the unique redistricting population basis for all times or circumstances. Although the federal decennial census figures need not be used as the basis for state redistricting, any alternate figures used must be shown to be the best data available or to be justified by particular circumstances as resulting in a more accurate redistricting plan than one based on federal decennial census total population figures.

The U.S. Supreme Court has not ruled on the constitutionality or propriety of using total population versus voting population as the basis for intrastate redistricting in a circumstance where the use of total population results in a disparity in voter strength in one district over another, although there is total population equality between the districts. In Garza v. County of Los Angeles , the U.S. Court of Appeals for the Ninth Circuit held that redistricting based on voting populations instead of the total population would have been unconstitutional. Total population had been used as the basis of a court-ordered redistricting plan that was disputed by the County of Los Angeles. Justice Thomas, in his dissent from a denial of a writ of certiorari in Chen v. City of Houston , contrasts the decision of the Ninth Circuit in Garza with those in which the U.S. Courts of Appeals for the Fourth and Fifth Circuits have held that the decision about whether to use total population versus voting population as the basis for redistricting within a state is a choice left to the legislative and political process.

Since, under the Federal Constitution, the states arguably can and should use data other than the official apportionment census data in their own redistricting process if they know the other data to be the best available data, one must look at each state's laws to determine whether the states themselves require the use of official federal decennial census data in the redistricting processes. Although it appears that generally states prescribe a redistricting procedure by statute for state legislative redistricting, many do not have a statutory procedure for congressional redistricting. The state legislatures in such states conduct the congressional redistricting on an ad hoc basis after a federal decennial census. This means that in such states there may be no explicit statutory requirement to use official federal decennial census data for congressional redistricting, although there may be such an explicit requirement for state legislative redistricting. To the extent that a state's own laws do not explicitly require the use of official federal decennial census data for intrastate redistricting, the state is free to use any other data.

It might be suggested that the federal government release two official sets of data, one for apportionment of the House of Representatives among the states and the other for other purposes. In such a situation, it could be unclear what a reference in state law to official federal decennial census data would mean. Arguably, the second data set could still be considered official federal decennial census data, even though not used for apportionment purposes. However, it should be noted that the Court's holding on standing for the plaintiffs in Department of Commerce v. U.S. House of Representatives indicates that a majority of the Court considers the references to official federal decennial census data to be a reference to the apportionment data.

At the time of the decision in Department of Commerce v. U.S. House of Representatives , there was a flurry of state legislative activity concerning the type of federal decennial census data to be used in intrastate redistricting because of the absence of sufficiently clear and explicit statutory guidelines concerning the appropriate data to be used in intrastate congressional and state legislative redistricting activities. Although there apparently has been no recent congressional activity concerning state redistricting census data, there is a potential role for Congress in determining what data should be used by the states.

Although Congress has not explicitly required states to use federal decennial census data in congressional redistricting, it could arguably do so under the same constitutional powers which give Congress the authority to establish other redistricting guidelines if it chooses, Article I, Section 2, clause 1, which provides that the Members of the House of Representatives shall be chosen "by the People" and Article I, Section 4, clause 1, giving Congress the authority to determine the times, places, and manner of holding elections for Members of Congress. Where it is not clear that one data set is more accurate than the other and the constitutional goal of equal representation is not implicated, arguably, Congress could require that a particular type of data, including citizens only or including aliens, must be used in congressional redistricting. However, it could not do so with regard to the redrawing of state legislative or municipal districts, which remain the prerogative of the states as long as no constitutional voting rights are violated.

Conclusion

The Constitution requires a decennial census to determine the "actual enumeration" of the "whole number of persons" in the United States. The data must be used to apportion the House seats among the states, although there is no constitutional requirement it be used to determine voting districts within the states. The term "whole number of persons" appears broad enough to include all individuals, regardless of citizenship status, and thus would appear to require the entire population be included in the apportionment calculation. As such, a constitutional amendment, such as that found in H.J.Res. 11 in the 111 th Congress, would likely be necessary in order to exclude any individuals from the census count for the purpose of apportioning House seats.

Appendix. Selected Legislation to Exclude Aliens from the Census

From time to time, Congress has considered legislation that would exclude all aliens or only unauthorized aliens from being included in the census to apportion the House seats among the states. Such legislation would have either amended the Census Clause of the Constitution or enacted or amended federal census statutes. Generally, the legislation providing only for statutory exclusions of aliens from the census failed because Members recognized the potential unconstitutionality of these statutory restrictions. However, Congress has also consistently not adopted resolutions to amend the Constitution to exclude aliens, with Members citing various reasons, including the reversal of constitutional tradition.

Some proponents of excluding aliens from the apportionment census have asserted that the framers of the Constitution did not understand the term "persons" necessarily to include aliens and point to the first census statute in 1790, which refers to "inhabitants," to support this contention. Since some of the Members of the first Congress had been Members of the Constitutional Convention a few years earlier, proponents argue that they must have known the intent of the Constitutional Convention in the Census Clause and would not have enacted an unconstitutional census statute. The proponents further argue that the term "inhabitants" in the first census statute was understood to refer to U.S. citizens only and not to foreigners/aliens, citing contemporaneous dictionary definitions. However, there is no direct evidence that this was the intention and, in fact, the early censuses apparently included aliens.

The 1790, 1800, and 1810 censuses included categories for free white males, free white females, other free persons, and slaves. Free white persons were categorized further by age. The 1820 census was the first to include a subcategory for "foreigners not naturalized." Instructions to the federal marshals conducting the 1820 census noted that the data for this subcategory was not supposed to be added to the total data for free persons subcategorized by race and age, because they were already included as free persons. These instructions appear to imply that the earlier censuses included free foreigners as well as free citizens in the data for free persons and that the new subcategory of information was not adding persons who would not have been counted under existing subcategories in earlier censuses.

In 1866, Congress considered constitutional amendments that would have limited the apportionment and census to voters or citizens. Such amendments were considered in the context of the civil rights amendments (ultimately resulting in the Thirteenth, Fourteenth and Fifteenth Amendments) being debated after the Civil War. The Fourteenth Amendment revised the apportionment clause, deleting the phrase counting three-fifths of slaves and instead requiring that the whole number of persons in each state must be counted, excluding Indians not taxed. However, if male inhabitants who were 21 years old and U.S. citizens were disenfranchised by a state for reasons other than participation in the Confederate rebellion or a crime, the population count of that state for purposes of apportionment would be reduced by the ratio of these disenfranchised male citizens to the total number of male citizens in that state. This was intended to discourage former slave states from disenfranchising former slaves and other African Americans. A similar proposal would have counted the "whole number of persons except those to whom civil or political rights or privileges are denied or abridged by the constitution or laws of any State on account of race or color." Some versions of this type of proposal would not have excluded Indians not taxed, while others kept the language excluding Indians not taxed.

During consideration of the civil rights amendments, an alternate type of proposal to amend the constitutional requirements for apportionment and the census would have counted only voters in each state to discourage former slave states from disenfranchising former slaves and other African Americans. However, this proposal was deemed flawed because it would also penalize other states by not including aliens/non-citizens in the census count for apportionment, since generally aliens were not permitted to vote in most states. Opponents also noted that this proposal would depart radically from the counting of all persons required by the original census clause. Another criticism was that suffrage would be cheapened because states would reduce or eliminate legitimate conditions for voter eligibility in an attempt to increase the number of voters. Some proposals to count voters or electors would have excluded citizens who had been disenfranchised as former Confederate rebels, while others would have included such citizens. Some voter-based apportionment census proposals were brought up for floor votes and failed.

For proponents, the type of proposals that evolved into the Fourteenth Amendment had the advantage of not penalizing states that were not former slave states, but had high numbers of aliens. Meanwhile, this type of legislation would still effectively discourage former slave states from disenfranchising former slaves, since such disenfranchised persons would not be counted at all, a significant reduction from being counted at a three-fifths ratio.

In the late 1920s and early 1930s, the issue of counting aliens was raised as Congress considered legislation for the 1930 census and related apportionment of the House of Representatives. Apportionment was such a contentious issue following the 1920 census that the requisite decennial apportionment of the House of Representatives was never completed. The apportionment had been directly legislated by Congress until the 1920 census. After the breakdown in the process, Congress legislated a formula for calculating and allocating the Representatives among the states, thus eliminating the partisan negotiations that had hampered earlier apportionments and impeded/prevented apportionment in the 1920s. As Congress considered the appropriate apportionment formula, it debated whether to amend the Constitution to exclude aliens from the census data used for the apportionment. A 1929 Senate Legislative Counsel opinion analyzing such proposals concluded that "there is no constitutional authority for the enactment of legislation excluding aliens from enumeration for purposes of apportionment of Representatives among the States." While acknowledging that no case law had ruled on the issue of the meaning of "persons" in the Census Clause, the opinion found that according to rules of statutory construction, "persons" had at all times been understood to include aliens. Additionally, the reference in the Fourteenth Amendment to excluding Indians not taxed would be unnecessary if "persons" referred only to citizens, and the Fourteenth Amendment would not have explicitly referred later in the same clause to the number of male inhabitants who were citizens and 21 years old. With regard to the original apportionment and census language, the opinion contrasted the use of the word "person" with the use of the word "citizen" for particular reasons in other parts of the original Constitution. Proposals to exclude aliens by statute alone failed as unconstitutional. Proposals to amend the constitutional language also failed.

In 1940, when asked by a colleague whether the census for apportionment must count aliens unlawfully present in the United States, Representative Celler asserted that a constitutional amendment would be required to exclude even unlawfully present aliens from the census. Earlier congressional debates apparently do not discuss unauthorized aliens, but rather consider the constitutionality and/or policy of excluding lawful aliens.

In the late 1970s and the 1980s, Congress considered immigration legislation that became the Immigration Reform and Control Act of 1986, which legalized certain unauthorized aliens and strengthened immigration laws to prevent immigration fraud, provide greater protections for temporary foreign workers and prevent displacement of U.S. workers, etc. In the period before and after the enactment of this legislation, Congress also considered proposals to exclude aliens from the census, including proposals specifically to exclude unauthorized aliens. The latter proposals appear to be related to the proposals to legalize or strengthen enforcement against unauthorized aliens. Some Members noted that unauthorized aliens needed to be included in the census in order to assess the potential impact of legalization.

A key legislative proposal in the late 1980s resembled the Vitter amendment in the 111 th Congress to prohibit the use of funds to include illegal aliens in the census for apportionment of the House of Representatives. This provision was sponsored by Senator Shelby as amendments to the bill for appropriations to the Departments of Commerce, Justice, and State (CJS appropriations bill) and the Senate-passed version of the Immigration Act of 1990. Although such provisions were passed by the Senate in these bills, they ultimately were not enacted. House proponents of this proposal failed in their attempt to have the House instruct its conferees for the CJS appropriations bill to retain the Senate provision in their negotiations; there had been no such provision in the House-passed version. The House conferees objected to the provision and it was dropped. However, the House floor debate on instructions to the conferees was echoed by the debates in the 111 th Congress.