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GOP Trying Another Way to Cheat on the Census

(Disclaimer: IANAL)

The GOP and the Trump administration have been trying all kinds of ways to skew the 2020 census toward traditionally Republican states. It’s now getting attention that they had more sneaks in mind than mucking up the census questionnaire. Another of their tactics is being noticed: Getting the courts to rule that undocumented immigrants — more of whom live in blue states than red one — cannot be counted for purposes of Congressional apportionment.

TPM is reporting that the state of Alabama and Rep. Mo Brooks (R-AL) filed suit in the northern district of Alabama back in May 2018 to exclude undocumented documents (aka illegal aliens) from the Census apportionment of Congressional seats, and with it allocation of federal dollars, etc. A group of citizens filed a motion to intervene on July 12, 2018, as did the counties of Santa Clara (CA) and King (WA), and the city of San Jose a week later. Both motions were granted on Dec 13, 2018. In his ruling, the judge noted that the federal government was not exactly enthusiastic in defending the Census bureau:

The decision to permit intervention in this case is particularly significant in light of Defendants‟ rather halfhearted Motion to Dismiss for Lack of Jurisdiction. (Doc. # 45). Indeed, the court is concerned that Defendants have overlooked a key argument as to why Plaintiffs potentially lack Article III standingi.e.,whether Plaintiffs‟ claimed representational injury is likely to be redressed by a favorable decision of this court. (page 6 n. 2)

(In June, the court did rule that plaintiffs do have Article III standing.)

That ruling might be the reason why 16 states and other bodies have now decided they too want to intervene:

The states that are seeking to join those defendant-intervenors are New York, California, Colorado, Connecticut, the District of Columbia, Illinois, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia and Washington. Nine cities and counties also joined the new motion to intervene  as did the US Conference of Mayors (TPM)

A memorandum in support of their motion to intervene was filed today; you can read it here. It rather bluntly says that the parties want to intervene because they don’t trust the Attorney General of the United States:

Defendants will not fully represent the interests of the Proposed Defendant-Intervenors.  This Court has already characterized the Federal Defendants’ defense of this case as “rather halfhearted.”  Doc. # 53 at 6 n.2.  That characterization is consistent with the statement by the United States Attorney General, in a speech delivered from the White House just weeks ago, that the federal government was still “studying the issue” of “whether illegal aliens can be included for apportionment purposes,” and needed to develop better estimates of the citizenship and lawful-presence status of the entire population because it may prove relevant to this litigation.

Given that the judge previously approved intervention by individuals and two counties, I think there’s a good chance this intervention will also be approved.

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The TPM article continues:

The case has so far proceeded under the radar. But if successful, the lawsuit would be an incredible power grab by Republican states to counteract the shifts in demographics that favor bluer, more immigrant-friendly parts of the country.

TPM thinks there is little legal basis for the plaintiff’s case:

The lawsuit has appeared to be a long-shot given that the Constitution mandates apportionment based on “whole number of persons in each state.” That language has been nearly universally interpreted to mean persons regardless of citizenship or legal status.

But with Barr in charge of the Justice Department, legal basis is just a “quaint anachronism.”

In other words, folks, not only ain’t it over until it’s over, it’s never over.

“Eternal vigilance is the price of liberty.”

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