Should Illegal Immigrants Count In Drawing Legislative Districts?

(REUTERS/Lucy Nicholson)

Ian Smith Immigration Reform Law Institute
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A potentially ground-breaking voting law case, the most important in 60 years say experts, will be heard by the Supreme Court next term, and it’s sure to raise fundamental questions about the nature of our representative democracy. The case, Evenwel v. Abbott, is asking the court to decide whether state legislative districts with wide disparities in their voting-eligible populations violates the Constitution’s “one-person, one-vote” principle by giving voters in some districts more “weight” than others (See Scotusblog’s just-launched online symposium on the implications of the case here).

The plaintiffs, two citizen voters from Texas, claim that because their state draws districts around “residents” and not voters, too much representation is being given to urban areas where immigrants tend to cluster. According to the plaintiffs, allowing districts to have varying populations of actual voters is diluting the votes of citizens in rural and suburban areas resulting in widespread electoral inequality.

Court filings from the plaintiffs show that some of Texas’s rural and suburban senate districts have nearly twice as many eligible voters as do other more immigrant-heavy urban areas. But equalizing district voter populations would come at the expense of these latter, predominately Hispanic, areas. Predictably, Hispanic “voter rights” organizations aren’t happy. The controversial Mexican-American Legal Defense and Educational Fund (MALDEF) has vilified the plaintiffs accusing them of being “purveyors of apartheid.” Along with other critics, they say that the plaintiffs are trying to bring back the days of slavery when the “Three-Fifths Clause” discounted slaves before they were included in the apportionment base from which we distribute our representatives.

MALDEF’s orchestrated hysterics aside, their reference to the Three-Fifths Clause ironically gets to a core argument for favoring the exclusion of at least illegal aliens from the apportionment process. Section 2 of the Fourteenth Amendment reads, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” Open-borders groups, which MALDEF is, argue that the phrase “whole number of persons” should be read literally with illegal aliens being included in the apportionment base and thereby granted the right of political representation. But as always, context is key.

The post-Civil War Fourteenth Amendment clipped the Constitution’s original Census Clause which had split the phrase “whole number of persons” between “free persons” and “other persons” (slaves) with only three-fifths of the latter being counted in the census. During the Constitutional Convention debates, many northern states actually wantedzero slaves to be counted so as to completely cut out what they saw as an unfair amount of representation being allotted to slave-holding states, some of whose slave population were as high as 50 percent of residents. The Three-Fifths Clause was also intended to curb the incentive of slave-holding states to import more slaves in order to expand their representative base.

Seen in this context, the drafters of the new Apportionment Amendment removed the qualifications of the phrase “whole number of persons” only to emphasize the new status of freed blacks and to give them full apportionment rights. The phrase was never intended, as groups like MALDEF argue, to apply to every person who happened to be in a state at any time – For additional arguments against including illegal aliens in the census, see a paper produced by the Immigration Reform Law Institute here.

Unfortunately, current Census Bureau regulations take a broad approach, stating that persons merely of “usual residence” are to be counted for the purposes of apportionment. No effort is made by the agency to delineate between citizens and non-citizens or even citizens and illegal aliens. This is despite the term “resident” appearing nowhere in the Census Clause of the Constitution. In his article entitled “Losing Control of America’s Future — The Census, Birthright Citizenship, and Illegal Aliens,” legal scholar Charles Wood describes the Census Bureau’s current practice:

Whether the alien has just been transported into the United States by a smuggler, has received a deportation notice, or is simply an illegal resident who has not been apprehended because of ineffective federal law enforcement, the Census Bureau currently seeks to count every such illegal alien.

Given the historical context, granting representation rights to illegal aliens should be treated as an absurdity. But in a 1990 court decision involving Los Angeles County, the Ninth Circuit ruled that failing to apportion legislative districts for all residents (including illegal aliens) would mean that “residents of the more populous districts [would] have less access to their elected representative.” By recognizing such “access” rights for illegal aliens, the court made tacit acknowledgment that our system is one that criminalizes unlawful entry on the one hand and induces it on the other by promising representational rights. The Constitution cannot be interpreted to sustain such a practice. Indeed, the granting of such rights does not comport with the Supreme Court’s general approach toward illegal aliens as outlined by Justice Stevens in Mathews v. Diaz:

Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its citizens and some of its guests. (emphasis added).

It is a political privilege to be included in the apportionment base by which our legislators are distributed. That privilege should not be given to aliens who’ve broken our immigration laws as well as many others. Allowing illegal aliens the right of representation debases American citizenship, dilutes our right to vote, and impacts our political system. We know how groups like MALDEF view the debasement of the American citizen; we’ll see next term whether or not the Supreme Court agrees.