Should Illegal Aliens Be Represented In Congress? Louisiana Says No

by Jan Ting

The state of Louisiana has filed a lawsuit in the U.S. Supreme Court challenging the inclusion of illegal aliens in the 2010 census count on which seats in the U.S. House of Representatives are apportioned among the states. The lawsuit asserts that Louisiana is one of five states which each lost one representative as a result of three other states gaining representation because of inclusion of such illegal aliens in the 2010 census count.

The U.S. Supreme Court has interpreted the Constitution’s apportionment by population of the House of Representatives as requiring that, “as nearly as is practicable, one man’s vote in a congressional election is to be worth as much as another’s.” Since only U.S. citizens can vote, and because the illegal alien population is unevenly distributed among the states, Louisiana asserts that the inclusion of such illegal alien population in the 2010 census count deprives Louisiana voters of their rightful representation in the U.S. House of Representatives.

Louisiana seeks to have declared unconstitutional the inclusion of illegal aliens in the census count used to apportion congressional seats. Louisiana asks the Supreme Court to order the Census Bureau to exclude such persons in a revised calculation of the 2010 apportionment, and to transmit such revised calculation to the House of Representatives and to the states for implementation.

Section 2 of the 14th Amendment to the Constitution provides that, “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”

Strict constructionists or originalists on the Supreme Court might find that constitutional language sufficient to reject Louisiana’s claim, since it clearly requires the counting of all “persons” in each state and specified the only group which was not to be counted for purposes of apportionment.

Advocates of a more flexible, “living” Constitution, however, might observe that when the 14th Amendment was ratified in 1868, and the original Constitution itself ratified in 1789, not only was there as yet no U.S. immigration law drawing distinction between citizens and aliens, but the jurisprudence of equal voting rights among citizens had not yet been fully developed. Since the Supreme Court itself has upheld the enactment of U.S. immigration law and interpreted the Constitution as mandating equal voting rights for citizens, the Court might entertain the idea of adapting the Constitution to current developments and understandings.

The state of Louisiana’s lawsuit includes attachments prepared by a Louisiana State University professor of sociology that specifies how the 435 seats in the U.S. House of Representatives would be apportioned with and without the inclusion of “undocumented immigrants”. The apportionment beneficiaries of “undocumented immigrants” are identified as California, Florida and Texas. The apportionment losers because of “undocumented immigrants”, besides Louisiana, are Missouri, Montana, North Carolina, and Ohio.

The Louisiana lawsuit is an unusual direct appeal to the Supreme Court pursuant to the high court’s jurisdiction over lawsuits between one state and the citizens of another state.

Jan Ting is a Professor of Law at Temple University’s Beasley School of Law and a former Assistant Commissioner for Refugees, Asylum and Parole, Immigration and Naturalization Service, U.S. Department of Justice. Jan can be reached at janting@temple.edu.