TRENTON -- Attorney General Gurbir S. Grewal announced today that New Jersey has joined a coalition lawsuit to challenge a Memorandum issued by President Trump this week that would for the first time exclude undocumented immigrants counted in the census from state population totals used to apportion seats in the House of Representatives, in disregard of an unambiguous constitutional demand.

The U.S. Constitution requires an “actual Enumeration” of the entire population every ten years, and the 2020 census count is taking place now. The Fourteenth Amendment more specifically requires that elected Representatives be apportioned among the states based on the “whole number of persons” living in each state.

Undocumented immigrants are “persons,” so the “whole number of persons” counted for purposes of apportionment of House seats has always included immigrants, whether documented or not.

“Until this week, no President has denied that the undocumented immigrants who live in our communities are ‘persons’ who must be counted in determining States’ representation in Congress,” said Attorney General Grewal. “The President’s plainly illegal action not only dehumanizes members of our community but also seeks to punish states like New Jersey with larger immigrant populations. In New Jersey, everybody counts. We have defeated this President’s efforts to undermine that fundamental principle before, and we will do so again.”

The Secretary of Commerce is scheduled to report state population totals from the census to the President by January 1, 2021. The state population totals are used to determine how the 435 seats in the House of Representatives are apportioned among the 50 states, as well as how many votes are allocated to each state in the Electoral College. In 2018, the Secretary of Commerce announced that the 2020 census would include a citizenship question.

Although the Secretary stated that including the citizenship question would help enforce the Voting Rights Act, the Secretary’s explanation was widely viewed as pretext for asking the question to suppress participation in the census by immigrants and to gather information that would be used to exclude persons from the population counts used for apportionment.

New Jersey challenged the decision to include the citizenship question in court. Last year, the U.S. Supreme Court ruled in New Jersey’s favor after agreeing that the Secretary of Commerce’s rationale was “contrived.” The 2020 census proceeded without the citizenship question.

But just this week, in contravention of the Constitution and all historical precedent, President Trump issued a Memorandum directing that undocumented immigrants -- described as “aliens who are not in a lawful immigration status”-- be excluded from the census totals that will be reported to Congress for purposes of House seat apportionment.

Filed today in U.S. District Court in New York, the lawsuit joined by Attorney General Grewal alleges that the President’s decision to exclude undocumented immigrants from the totals is likely to:

• cause some states to lose congressional seats and decrease their share of electors in the Electoral College;
• impair State and local redistricting efforts that rely on the census count; and
• reduce federal funding allocated to states by deterring immigrants from responding to the census.

By discouraging immigrants from responding to the 2020 census, the complaint contends, the President’s decision also will degrade the overall accuracy of the census data.

The complaint further asserts that Trump’s order is directly related to his Administration’s failed attempt to have a citizenship question included on the 2020 census, is designed to punish states -- like New Jersey-- that have declined to cooperate with the President’s immigration enforcement efforts, and “is motivated by discriminatory animus toward Hispanics and immigrant communities of color.”

New Jersey has a strong interest in preserving inclusion of undocumented immigrants who are part of its communities in the House apportionment count.Today’s complaint identifies New Jersey as one of five states with large undocumented immigrant populations, and cites a November 2018 Pew Research Center study showing that the state had more than half-a-million undocumented immigrant residents in 2007, and that 475,000 undocumented immigrants resided in New Jersey as of 2016.

The lawsuit is being led by New York Attorney General Letitia James. Along with New Jersey and New York, the following states’ Attorneys General have joined the lawsuit: Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia. The Attorneys General are joined by the cities of Central Falls, RI; Chicago, IL; Columbus, OH; New York, NY; Philadelphia, PA; Phoenix, AZ; Pittsburgh, PA; Providence, RI; Seattle, WA; and the city and county of San Francisco. Additionally, Cameron, El Paso, and Hidalgo Counties in Texas and Monterey County in California have joined the lawsuit.

Deputy Attorneys General Marie Soueid, Estelle Bronstein, and Melissa Medoway, and Assistant Attorney General Mayur P. Saxena are representing the State in this matter.

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