LWVUS Urges Congress to Reject Unconstitutional Change to the Census

The League urged Congress to oppose an appropriations amendment that would exclude undocumented immigrants from the congressional apportionment calculation after each census. The proposed amendment to the House Fiscal Year 2024 Commerce, Justice, Science (CJS) Appropriations bill (H.R. 5893) would violate the 14th Amendment to apportion seats based on “the whole number of persons in each State”. 

Dear Majority Leader Schumer, Minority Leader McConnell, Speaker Johnson, Minority Leader Jeffries, Chair Murray, Vice Chair Collins, Chairwoman Granger, and Ranking Member DeLauro: 

On behalf of The Leadership Conference on Civil and Human Rights, a coalition charged by its diverse membership of more than 240 national organizations to promote and protect the rights of all persons in the United States, our Census Task Force co-chairs, Asian Americans Advancing Justice | AAJC and NALEO Educational Fund, and the 127 undersigned organizations, we write to urge you to oppose the inclusion of section 5591 of the House Fiscal Year 2024 Commerce, Justice, Science (CJS) Appropriations bill (H.R. 5893) in any final omnibus package, CJS bill, or Continuing Resolution.

As a threshold matter, section 559 seeks to achieve a clearly unconstitutional purpose, according to both Republican and Democratic administrations and the Congressional Research Service. It would require the U.S. Census Bureau to exclude undocumented immigrants from the congressional apportionment calculation after each census — an action that would clearly violate the plain meaning of the 14^th Amendment to the U.S. Constitution to apportion seats based on “the whole number of persons in each State” (emphasis added). The 14th Amendment was enacted, in relevant part, to repeal the provision in Article I that counted slaves as only three-fifths of a person for apportionment purposes; section 559 evokes this shameful legacy by treating undocumented immigrants as less than a person.

Equally troubling, if enacted, this section would put the success of future censuses at risk.

1. Section 559 would undermine 2030 Census accuracy in every state and every community by creating a climate of fear among all immigrants. Asking about immigration status in the census is unnecessarily intrusive and will raise concerns among all respondents — both nativeborn and immigrant, citizens and noncitizens, and mixed-status households alike — about the confidentiality and privacy of information provided to the government. This will have a chilling effect and keep many households from responding. Further, because census data guide the allocation of $2.8 trillion annually in federal assistance to states, localities, individuals, and families for a range of vital services, an inaccurate census will skew the fair and prudent distribution of federal resources for the next decade.
2. The Census Bureau cannot reliably determine the number of residents with unlawful status in each state without destroying the chance for an accurate census in any and all states. There is no precedent for trying to determine whether people are living in the United States unlawfully through a universal survey. The U.S. Constitution requires an “actual enumeration” to determine the number of people in each state for purposes of congressional apportionment. Therefore, estimates of persons residing in each state in violation of a complex set of U.S. laws would not be a constitutionally permissible method for implementing section 559.

In short, the text of section 559 has no place in an appropriations bill; seeks to accomplish an unconstitutional goal; and would put the accuracy of the multi-billion dollar, constitutionally required decennial census at grave risk in every state and community. For these reasons, we strongly urge you to oppose the inclusion of section 559 in any omnibus package or alternative measure funding the Commerce Department for Fiscal Year 2024. Thank you for considering our views.

If you have any questions, please contact Meeta Anand, senior program director of census and data equity at The Leadership Conference on Civil and Human Rights, at [email protected].

Sincerely,

The Leadership Conference on Civil and Human Rights
Asian Americans Advancing Justice | AAJC 
National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund