Common Cause Files Challenge to Trump’s Directive to Omit Undocumented Immigrants in Census Apportionment Calculations

Today, Common Cause filed suit in the U.S. District Court for the District of Columbia challenging President Trump’s July 21 memo ordering the exclusion of undocumented immigrants from the apportionment of seats in Congress. In that memorandum, the President purported to exclude those undocumented immigrants from reapportionment for the first time in our nation’s history, and ordered the Department of Commerce to assist him in that effort, in violation of both the U.S. Constitution and federal statutes.

Common Cause v. Trump seeks a declaratory judgment and injunctive relief against the President, as well as the Department of Commerce, Secretary of Commerce Wilbur Ross, and the Clerk of the House of Representatives. The four-count complaint alleges violations of several different Constitutional protections and federal statutory requirements related to the census count and the apportionment of congressional districts. The complaint makes clear that the President’s memorandum “is the culmination of a years-long effort to transfer political power en masse from voters of color—chiefly, but not exclusively, Latino voters—to ‘Republicans and non-Hispanic whites.’”

“The Constitution is unambiguous in its requirements relating to the census count and reapportionment of Congressional seats – all persons must be counted,” said Karen Hobert Flynn, President of Common Cause. “This directive simply ignores those requirements in an unconstitutional attempt to manipulate the process for racial advantage and partisan political gain.”

“When our neighbors aren’t represented and included in all counts, entire communities lose out,” said Keshia Morris Desir, Common Cause Census and Mass Incarceration Project Manager. “Towns and cities across the country would be deprived of vital resources – public schools, firetrucks, and COVID-19 recovery – if millions of families are erased from census counts through the Administration’s attempted end-run around the United States Constitution.”

The complaint charges the Administration with violating the U.S. Constitution – specifically, Article I, Section 2 of the Constitution as amended by Section 2 of the Fourteenth Amendment, and related statutes requiring that every resident be counted in the census and  included in the basis for reapportioning congressional districts. Further, the complaint outlines the Administration’s violations of the Equal Protection guarantees of the Fifth and Fourteenth Amendments by diluting a voter’s vote based on where they live and by taking an adverse action against residents on the basis of race, ethnicity, and national origin.

In addition to Common Cause, the plaintiffs include the cities of Atlanta, Georgia and Paterson, New Jersey, the Partnership for the Advancement of New Americans (a nonprofit refugee advocacy group), and individual Latino, African American, Asian American and other voters.

Plaintiffs are represented by Emmet J. Bondurant of Bondurant Mixson & Elmore LLP; Gregory L. Diskant, Daniel S. Ruzumna, Aron Fischer, and Jonah M. Knobler of Patterson Belknap Webb & Tyler LLP; and Michael B. Kimberly of McDermott Will & Emery.

To read the complaint, click here.