Alabama lawsuit at forefront of Census battle

Alabama thrust itself into an intense partisan confrontation last month when it filed a lawsuit opposing the counting of undocumented immigrants for congressional reapportionment purposes in the 2020 U.S. Census.

Critics believe Alabama, much like the federal government through its decision to back a citizenship question on the 2020 forms, is aiming to "weaponize" the program for political gain.

But backers of the lawsuit filed by Alabama Attorney General Steve Marshall and U.S. Rep. Mo Brooks, argue that the state is testing legal waters in an attempt to salvage one of the state's seven congressional seats and one of its nine electoral votes.

Alabama is at-risk of losing one seat in the U.S. House, as well as an electoral vote during presidential elections, because the state has experienced slower growth compared to other states since 2010, when the last decennial Census took place.

A constitutional showdown could come fast and furious, as other legal and legislative maneuvering around the Census is expected to be resolved with only 18 months before the counting begins.

Conservatives and civil rights groups are already staking their turf over the traditionally nonpartisan Census, which has become the focal point of the battles over immigration reform.

That's because the Census count determines the number of seats each state has in Washington, which determines the number of electoral votes, which ultimately decides the presidency. Some states, like California and Florida, have a lot of undocumented residents. Others, like Alabama, have relatively few.

And the current battle boils down to a single question: When it comes to representative democracy, who should be counted?

"Americans should be electing American leaders and allocating American political power," said J. Christian Adams, conservative activist and attorney with the Election Law Center who served on President Donald Trump's now-defunct advisory commission on election integrity. "It's unfortunate that isn't happening right now."

Said Terri Ann Lowenthal, a former staff director of a House oversight subcommittee on the Census: "I think the re-emergence of proposals to exclude undocumented immigrants mirrors the times of national focus on immigration policy. Today, we have an administration that has made immigrant control a centerpiece of its agenda. It's not a surprise."

Constitutional challenge

On the national front, the biggest Census battle is shaping up over an announcement in March that the U.S. Department of Commerce plans to add a question about citizenship on Census documents. The decision came three months after the Justice Department, under Jeff Sessions -- a hardline conservative on immigrant issues while he served in the U.S. Senate -- recommended the questions inclusion to better enforce the Voting Rights Act's provisions against racial discrimination.

Civil rights organizations, Democratic state attorney generals, and other advocacy groups have filed lawsuits to block the decision. The citizenship question was last asked of all households in 1950, and critics contend that adding the question will suppress the overall counting of non-citizens.

Alabama's lawsuit, filed on May 21, is more narrowly focused. It questions the need to include undocumented immigrants for determining apportionment and electoral college determinations.

The lawsuit takes aim at the 14th Amendment's "Residence Rule," which gives the Census Bureau authority to count undocumented immigrants when determining congressional seats in the locations where they reside. According to the Alabama lawsuit, the rule doesn't exclude people not eligible to vote, or those who are not part of a "political community."

Marshall said he's not trying to block undocumented immigrants from being counted as part of the Census. Instead, the lawsuit, he says, is aimed at excluding them when assessing whether Alabama is governed by six or seven House members.

Marshall said it's unfair to reward states with a higher concentration of undocumented immigrants.

"We believe the Constitution does not permit the dilution of our legal residents' right to equal representation," said Marshall.

The lawsuit provides some examples, citing past Census counts, where states with lower concentrations of undocumented immigrants lost congressional representation (Louisiana, Missouri and Ohio in 2010), while others saw representative gains (California, Florida and Texas that same year).

The Alabama lawsuit estimates that Ohio could also lose a congressional seat because of the inclusion of undocumented immigrants in the next count.

Money is also at stake. The Census figures are used to determine allocations of $700 billion in federal dollars throughout the country. Alabama, according to the latest estimates in 2015, gets $7.6 billion annually in federal funds. The money supports services like Medicaid and Medicare, housing assistance, highways and transportation, among other things.

Brooks, who represents Alabama's 5th congressional district in the northern part of the state, said the loss of a congressional seat will affect federal clout and the ability to promote the region's space and defense industry.

"The defense and space community in our region rely heavily on the clout that Alabama's congressional delegation has established on the House Armed Services Committee; Science, Space and Technology Committee; and Appropriations Committee," said Brooks. "I urge Alabama residents to consider the impact of losing a seat in the House, a body where strength of numbers often determines which communities receive federal jobs and funding."

Historical precedence

Critics of Alabama's approach contend that it won't pass constitutional muster, and are citing past examples as proof.

They point to the 14th Amendment's history, which was enacted in 1868 during Reconstruction in part to undo a provision to count slaves as three-fifth of a person.

"It's been undisputed that the Constitution requires a count of all persons living in the United States for purposes of congressional apportionment," said Lowenthal, the Census expert. "Republican and Democratic administrations have confirmed that interpretation. The Alabama lawsuit is not grounded in strong constitutional or operational arguments, in my opinion."

Gerald Webster, a professor of political geography at the University of Wyoming and a former geography professor at the University of Alabama, said he doesn't see the Alabama lawsuit going far.

"The Constitution does not say to count only the citizens, but rather an actual enumeration of the number of persons in each state," he said.

Lowenthal said the U.S. Supreme Court, as recently as two years ago, weighed in on the matter when it voted unanimously in the Texas lawsuit, Evenwel v. Abbott, that total population counts may be used in state redistricting issues.

Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights and former head of the Civil Rights Division of the Justice Department under President Barack Obama, said that the 2016 decision in Evenwel "reaffirmed the proposition that elected officials must represent everyone in their jurisdiction."

Marshall believes the Evenwel decision "does not address the issue of Alabama's challenge," and a is a "completely separate matter."

Said Gupta: "To me, this reads as the Alabama AG (is preparing) for a challenge to the Evenwel decision."

'Dangerous place'

The Alabama lawsuit, critics like Gupta and Lowenthal believe, could add to what they believe is already shaping up to be a chilling effect of undocumented immigrants fearful over participating in the Census count.

Gupta and other critics are seizing on the recent release of 1,320 pages of internal memos, emails and other documents related to the Commerce Department's decision to add the citizenship question. Within that release was communication between Commerce Secretary Wilbur Ross's staff and Kansas Secretary of State Kris Kobach and former White House strategist Steve Bannon urging the citizenship question.

"Both Bannon and Kobach have a deeply anti-immigration agenda, to say the very least," said Gupta. "This litigation in Alabama that (Marshall) filed seems to be aligned to this agenda."

But supporters of the Alabama lawsuit, including the Center for Immigration Studies -- a group sometimes criticized for tough views on American immigration policy -- believe the Alabama lawsuit along with the Commerce Department's citizenship question will not spark an uptick of those who avoid participating in the Census.

"At present, there is no evidence (to support that)," said Steven Camarota, director of research at the Center for Immigration Studies. He said that the citizenship question already appears on the bureau's American Community Survey, an annual count that reaches fewer households. That question, though, doesn't ask participants about legal or illegal immigration status.

Said Gupta: "I worry that the Census, which is supposed to be a nonpartisan program of the government and the only one written into the Constitution, being weaponized for political purposes."

"When that happens, it's a dangerous place for this country to be in."