Naif‘? ’ % M . A ‘ v§m?&g?v LC, 14-. 175/2,- . 3"‘ I * ,2 L3 A 5"“ _ is‘. :3 RA §:_‘*eé“ ‘1’,)1% 800'+é Wasshingircm ijnfiversiw WA..g.a‘;’hM‘*>.~? :2 ‘“ ' yr . S5116 F16 wovzmaes *1 '''‘'.~ 31-, »;':, L5 £"‘{ [~<". ; -1 -, ST L02 % - kw’, ~r« J CONGRESSIONAL RESEARCH T uniJe%r§n%%{ofM}ss§jufi%%- LLLLLL %%o%i;I;fibi;%Lf SERVICE ’ ‘ I/I //III/I//I //II/I fill I II III ////Ill/I/I/I/IWI/III/II/III!/IIW AAAAA O.___ _\ O-103940121 CONGRESSIONAL REDISTBICTING: 1980 CENSUS AND THE COUNTING OF ILLEGAL ALIENS ISSUE BRIEF NUMBER IB30OQ6 AUTHOR: Seitzinqer, Hichael V. American Law Division THE LIBRARY OF CONGRESS CONGRESSIONAL RESEARCH SERVICE HAJOR ISSUES SYSTEM DATE ORIGINATED Qggygg DATE UPDATED Qggggggg FOR ADDITIONAL INFORMATION CALL 287-5700 0922 CRS° 1 IB80046 UPDATE-09/22/80 ISSUE DEFINITION Information from the decennial census is used in dividing States into congressional districts with populations that are as numerically equal as possible. Past censuses have counted all pople residing in a State, and no distinction appears to have been made between 0.5. citizens and aliens or between legal aliens and illegal aliens. Since the last decennial census, there has been a tremendous influx of illegal aliens into this country. If these illegal aliens are counted in the census, a State with a significant number of illegal aliens will arguably have more congressional representation than a State which does not. At issue is whether illegal aliens will be counted in the census and whether their numbers will appear in the population statistics upon which congressional redistricting will be based. L3.A§;1S§BQQ!1.2_A1‘.2..2QLl...Z..AEA.LX.§l§ Article I, Section 2, Clause 3 of the 0.5. Constitution requires that every 10 years a census must be taken of the inhabitants of the various States of the United States in order to determine the allocation of Representatives to the States. According to this provision and to section 2 of the Fourteenth Amendment, Representatives are to be apportioned to the ;tates based upon the information obtained from "counting the whole number of persons in each State." Each State in any event is to have at least one Representative- Federal statutes have been enacted to establish the procedures for nconducting the census and for transmitting the decennial census figures to the States. Section 141 of Title 13 of the U.S. Code requires the Secretary of Commerce to take a decennial census as of the first day of April 1980 and every 10 years thereafter. The tabulation of total poplation by States must be completed within nine months after the census date and reported by the Secretary of Commerce to the President. Another statute (2 U.S.C. 2a(a)) provides that on the first day of the first regular session of Congress held after the completed census date or within one week thereafter, the President must transmit to Congress a statement showing the number of persons in each State as ascertained by the decennial census and the number of Representatives to which each State is entitled. Within 15 days after the receipt of this statement, the Clerk of the House of Representatives must send to the executive of each State a. certificate of the number of Representatives to which the State is entitled. (2 U.S.C. 2a(b)). Once the population figures and the number of Representatives to which the 4 estate is entitled are transmitted to the State's executive, the State has the duty to redistrict. In most States this duty is carried out by the State legislatures, but it is possible for a State by statute to assign the duty to redistrict to any organization or group of people. Since Article I, Section ‘, Clause 1 of the Constitution provides that the State legislature shall regulate congressional elections until such time as Congress changes the State law, it appears that State jurisdiction over establishing the boundaries for congressional districts would arguably ,continue so long as Congress does not pass a congressional redistricting law of its own. In the past the decennial census has attempted to count all inhabitants of the United States and the various States, except for foreign tourists and CBS- 2 IBBOOH6 UPDATE—O9/22/80 ,_dip1onatic personnel, including both legal and illegal aliens. Thereu would appear to be historical precedent for including legal and illegal aliens in the decennial census. During hearings before the Committee on the Judiciary, House of Representatives, 71st Congress, 3d Session, on H.J.Res. 20, H.J.Res 101, H.J.Res 356, and H.J.Res. H84 (1931), a detailed legal examination of the apportionment provisions of the Constitution was made in considering proposed constitutional amendments to alter the basis of apportioning Representatives among the States. one of these proposals attempted to exclude aliens from the census on the basis.that the Constitution required the inclusion of aliens in the census. A report of the Legislative Counsel's Office, included in the hearings, supports the belief that a constitutional amendment is necessary to exclude aliens from the census. The following statements within this report are illustrative: ' While the word "person" as used in this section of the Fourteenth Amendment has not been construed by the courts, it is highly persuasive that in the due process and equal protection clauses of section 1 of the amendment the word "person" has always been held to include aliens.... This evidence that "persons" was taken to mean the same as "citizens and inhabitants" tends to show that the word was used in its common and broad sense and that the convention was conscious of the fact that "persons" includes noncitizens. In 1940 the subject of illegal aliens was raised. Representative Celler of New York was asked whether "aliens who are in this country in violation of law have the right to be counted and reported." He responded: The constitution says that all persons shall be counted. I cannot quarrel with the founding fathers. They said that all should be counted. We count the convicts who are just as dangerous and just as bad as the Communists or as the aNazis, as those aliens here illegally, and I would not come here and have the tenacity to say that the convicts shall be excluded, if the founding fathers say they shall be included. The only way we can exclude them would be to pass a constitutional amendnent. 86 Cong. Rec. u372(19no). The proposal to exclude aliens from the population base was rejected. ' Further support for counting aliens in the census comes from H.Rept. 91-131a, The Decennial Population Census and Congressional Apportionment (1970), which contains the following paragraph at page 5: Questions arise from time to time as to the interpretation of the constitutional phrase, "whole number of persons"; for example, whether the apportionnent population should include noncitizens. This subject was debated by Congress in connection with the legislation which provided for the 15th census (1930) and for the "automatic" reapportionment of the House of Representatives following each national census. The House Comaittee on the Judiciary considered in some detail in 1931 the possibility of limiting the CES- 3 IBBOOH6 UPDATE“0Q/22/80 apportionment population to U.S. citizens. These and earlier discussions indicate that the Constitution intended that the total population of the States he used as the basis for the apportionment of Representatives. Decisions by the Supreme Court of the United States relating to congressional and State apportionnents also support this point of view. Support for excluding illegal aliens from the 1980 census nculninated in the filing of .1ifi_<—2.r.a.1.:;1911.-£.<2.I;-An<2.§i.m.n-.I.nni9.I;ati9z1.-§e£2£n-.tE1.!..IB.). v- I$.1.21t..z:ni21.<.. Civil Action No. 79-3269 (Feb. 26, 1980), before the 0.5. District court for the District of Columbia. In this case the plaintiffs urged that the 1980 census should establish the number of illegal aliens in the States and districts within which they live so that their numbers could be excluded from the figures on which reapportionnent of Representatives is based. The plaintiffs contended that the exclusion of illegal aliens from the apportionment population base is mandated by the Constitution, which assertedly contemplates that only lawful residents should be included in the population figures fro: which apportionnent.is made. The plaintiffs alleged that the votes of persons in some States or regions would be diluted in comparison to those in the States and regions with a large illegal alien population. The court held that it lacked jurisdiction to decide the merits of the case because the plaintiffs lacked snanding to raise the issue. The court stated that the indispensable constitutional minimum which must be present for the plaintiffs to have standing to bring a case is that a concrete injury must he suffered personally by the party seeking relief. Iere, however, the plaintiffs, several organizations and a group of legislators, urged essentially that some one or none of them would likely suffer the loss of at least one national Representative if illegal aliens were counted. The court stated that plaintiffs‘ assertion of standings was inadequate for a number of reasons. They failed to demnstrate concrete harm which would occur and he suffered by any one of thm. They failed to demonstrate that the relief requested would benefit them personally. Although they estimated that between one and 16 congressional seats would be affected by including illegal aliens in the census count, they could only wspeculate as to which States might gain and which might lose representation. On Mar. 17, 1960, the Supreme Court turned down an emergency request by FAIR challenging the constitutionality of a census including illegal aliens. Washington Post, Mar. 18, 1980, p. A2, col. 3. Thus, it appears that, except for foreign diplomats and tourists, aliens will not be excluded from the census count. However, some legislative action might occur which would in some way exclude illegal aliens from the figures used for reapportionment. Various ibills have been introduced to accomplish this result. LEGISLATION H.E. 1926 (Danneneyer) Directs the Secretary of Commerce in«conducting the decennial census to include a question as to whether the individual being counted is a U.S. citizen. Introduced Feb. 8, 1979; referred to House Committee on Post Office and Civil Service. 7 H.B. 6577 (Jeffords et al.) Directs the Secretary of Commerce to specify in the tabulation of total cns- u Inaoous UPDATE-09/22/80 V,_population by States, as required for the apportionment of Representatives in Congress, the number of aliens in each State, including a separate accounting of those aliens not lawfully present in the United States. Provides that these illegal aliens not be counted for purposes of this apportionment. Introduced Feb. 22, 1980; referred to House Committees on the Judiciary and on Post Office and Civil Service. H.R. 6769 (Hillis), H.R. 6812 (Grassley) Requires adjustments in census populaticm figures fr: aliens in the United States illegally to minimize distortions in the reapportionment of the House of Representatives, the legislative apportionment and districting of the States, and the allocation of funds under Federal assistance programs. H.R. 6719 introduced Mar. 11, 1980; H.R. 6182 introduced mar. 13, 1980. Both referred to House Committees on the Judiciary and on Post Office and Civil Service. a H.R. 7583 (Steed) Treasury, Postal Service, and General Gcwernment Appropriations Act, FY81. The “ucnade Amendment" to this bill, which may be found in Title III under > the section on salaries and expenses for the Office of the White House, would 9 prohibit the President from spending Federal funds for calculating or transmitting tor Congress during FY81, or until such time as a FY81 supplemental appropriations bill is passed that -does not contain this language, the statement of the number of Representatives to which each Stat is entitled. Introduced June 13; referred to Committee on Appropriations, D which reported the measure to the House (H.Rept. 96-10901 the same day. Passed House Aug. .20, 1980. Reported to Senate from Committee on Appropriations (S.Rept. 96-955) Sept. 17, 1980. H.Res. 594 (Clinger et al.) Expresses the sense of the House of Representatives that illegal aliens should be excluded from the total population of States as determined in the decennial census for the purpose of apportioning Representatives in Congress. Introduced Mar. n, 1980; referred to House Committees on the Judiciary and on Post Office and Civil Service. H.J.Res. 422 (Holtzman et al.) Amends the Immigration and Nationality Act to prohibit the exclusion or deportation of persons from the United States on the basis of information obtained from the 1980 decennial census. Introduced Oct. 16, 1979; referred to House Committee on the Judiciary. S. 2366 (Huddleston et al.) Requires adjustments in census population figures for aliens in the United States illegally to minimize distortions in the reapportionment of the House of Representatives, the legislative apportionment and districting of th States, and the allocation of funds under Federal assistance programs. Introduced Feb. 28, 1980; referred to Senate Committee on Governmental Affairs. CR3? 5 IB8oou6 UPDATE-09/22/80 HEARINGS U.S. Congress. House. Committee on Post Office and Civil Service. Subcommittee on Census and Population. Discussion of 1980 census procedure. Hearing, 95th Congress, 2d session. Mar. 21, 1978. Washington, 0.5. Govt. Print. Off., 1978. ----- The Census Reform Act. Hearings, 95th Congress, 1st session, on H.B. 8871. Sept. 12 and 23, 1977. Washington, 0.5. Govt. Print. Off., 1977. -~—-- 1980 census. Hearings, 95th Congress, 1st session. June 9, 10, and 24, 1977. Washington, U.S. Govt. Print. Off., 1977. ---- 1980 census. Hearings, 94th Congress, 2d session. June 1 and 2, 1976. Washington, 0.3. Govt. Print. Off., 1976. U.S. Congress. House. Committee on the Judiciary. Subcommittee No. 5. Congressional districting. ‘Hearings, 92d Congress, 1st session, on H.R. 8953. July 21, 22, and 29, 1971. Hashington, U.S. Govt. Print. Off., 1971. -—--- Congressional redistricting. Hearings, 88th Congress, 2d “ session, on H.B. 699 and others. Har. 18-19, 1964. Washington, U.S. Govt. Print. Off., 1964. U.S. Congress. House. Committee on the Judiciary. Subcommittee No. 2. Standards for congressional districts (apportionment). Hearings, 86th Congress, 1st session, on H.R. 73 and others. June 24 and Aug. 19, 1959. Washington, U.S. Govt. Print. Off., 1959. B§EQ§I§-A!D C0N§B§55IQEAL-D0§§§3NE§ U.S. Congress. House. Committee on Post Office and Civil Service. Subcommittee on Census and Statistics. The decennial population census and congressional apportionment. [Washington, 0.3. Govt. Print. Off.) 1970. 2a p. (91st Congress, 2d session. House. Report no. 91-131a) QE§Q!QLQGY-Q§-§!EEI§ O9/17/BO - H.R. 7583 reported to Senate from Committee out Appropriations. O8/20/80 -— H.R. 7583, containing “HcDade Amendment," passed House. On/01/80 - Completed census forms returned. O3/28/80 -- Census forms mailed out. CRS- 6 IBBOOMG UPDATE-09/22/80 03/17/80 -- 0.5. Supreme Court turned down request to hear appeal by Federation for American Immigration Reform (FAIR). 03/13/80 -- H.R. 6812 introduced and referred to House Committee on the Judiciary and to House Committee on Post Office and -Civil Service. ~ 03/11/80 -- H.R. 6769 introduced and referred to House Committee on the Judiciary and to House Committee on Post Office and Civil Service . O3/04/80 - H.Res. 59H introduced and referred to House Committee on the Judiciary and to House Committee on Post Office and Civil Service. 02/28/80 - S. 2366 introduced and referred to Senate Committee on Governmental Affairs. 02/26/so - 19.5. District Court for the District of Columbia decided §‘..9.<1e;§.t1.:i9.9.-.f.<.>r-é.!.I;erie22-;na;gr:;t_i9n..§2f9rn V- El22zn;2.3s- 02/22/30 - H.R. 6577 introduced and referred to House Committee on the Judiciany and to House Committee on Post Office and Civil Service. ‘ 10/16/79 -— H.J.Res. #22 introduced and referred to House Committee on the Judiciary. 02/08/79 —- H.R. 1926 introduced and referred to House Committee on Post Office and Civil Service. éP.2l.TIQ§AL-§§El@.El§§B;-§QQ§§§§ Baker. One an-one vote and "political fairness" --or how the Burger court found happin as by rediscovering ggygglgg v . gims. Emory law journal, v. 23, 1974: 701. Dixon. Democratic representation: Reapportionment in law and politics. [New York: 1968). --—-- The Warren court crusade for the holy grail of "one man—one vote." supreme Court review, 1969: 219. Dixon and McKay. Election districts: Substantial population equality and exceeded expectations. Human rights, v. 1, 1970: 7a. Huckabee. The possible impact of the 1980 census on congressional apportionment and redistricting. CH8 - Govt. Div. Dec. 3, 1979. McKay. Reapportionment: The law and pbditics of equal representation. New York, 1965. Polsby, ed. Reapportionment in the 197CB. Berkeley, 1971. Ripy. Aliens and congressional districting.i CRS - Am. Law. Div. Apr. 11, 1975. /N.‘ Schneckebier. seitzinger. CRS- 7 Congressional apportionment. Congressional districting: Brief 79050. Vialet. Illegal/undocumented aliens. IB800fl6 UPDATE-09/22/80 Washington, 19u1. legal framework- CRS — Issue CBS - Issue Brief 74137. wAsH|.Ncrrc,m UNlVEF:SiT‘a*’ SI-J:-2P”.§-r.TMQ:.,T}LT