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Op-ed: State Apportionment and Illegal Immigration: Time to stop

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As a border state, Arizona has confronted the consequences of illegal immigration for decades. A not-often-discussed constitutional loophole is making this challenge perpetually harder to resolve.

Counting illegal aliens as citizens, as outlined in the 14th Amendment, leads to the over-allocation of seats to the dominant party in districts with large illegal populations. Democrats benefit from this, which may be why they don’t seem interested in solving the border crisis.

To analyze this, we can examine the districts where there is a high concentration of illegal immigrants and compare the number of registered voters in those districts to the ones where there are very few illegal immigrants. The districts with more illegal immigrants will likely have a significantly lower number of total voters compared to the ones with fewer illegal immigrants.

This is covered in detail in Howard Husock’s Citizenship and Congressional Districting in National Affairs-Fall 2023. He shows how congressional district voting totals vary widely for districts that are supposed to be equal, as in equal representation but aren’t.

In the 2022 Congressional Election, Jim Jordan’s Ohio 4th District had 290,156 votes, with 69.2% in his favor, while Alexandria Ocasio-Cortez’s New York14th District had 118,062 votes, with 70.6% supporting her. Interestingly, Jordan’s district had 146% more votes cast than AOC’s, despite being equal in size. It’s interesting to note that Jordan’s district is 99.1% U.S. citizens, and AOC’s is only 76.4% U.S. citizens (source: Data USA).

How is this possible? Due to the drafting of both the U.S. Constitution and the 14th Amendment, the courts have determined that for the apportionment of the U.S. House of Representatives, we must count all the “persons” residing in a state. The drafters likely had no idea that their words would be used to give political power to individuals who are not citizens and, in many cases, are breaking the law by even being in the U.S. Nothing short of a constitutional amendment will solve this problem on a federal level.

What about the states?

Arizona may adopt counting resident U.S. citizens for apportioning districts for state offices. Most states count all persons for apportioning state legislatures, including illegal immigrants, which can significantly affect seat allocation. By counting only residents of the U.S., Arizona could have a more accurate representation.

In the 2022 Arizona State Senate election, Republicans won 17 out of 32 districts, while Democrats won 15. If the theory is correct, Democrat districts should average a significantly lower number of total votes than Republican districts because most illegal aliens tend to live in Democrat majority districts. They are counted in the census, even though they are not U.S. citizens, and therefore, they are counted for purposes of apportionment.

In fact, the differences in voting population have been proven. The Democrat-winning districts have an average number of voters of 54,310, with a range of 25,626-123,321 total voters. The Republican-winning districts have an average total number of voters of 91,260, with a range of 59,471 to 133,510 total voters. The overall average total number of voters in a state senate district is 78,123. The average Republican-won district’s total number of votes is 68% greater than the average Democrat-won district’s total number of votes. These figures are prima facie proof of the theory.

Two U.S. Supreme Court decisions are of particular interest to state reapportionment. In 2016, the court decided Evenwel v. Abbott, which found a state (Texas) could not be forced to use a method, in this case voter-eligible population, to apportion its state legislative seats. The court ruled that the total population of persons was an acceptable method as it is the same method used by the U.S. House of Representatives and certainly met the court’s one-person, one-vote standard articulated in Reynolds v. Simms (1964).

In the Evenwel case, the plaintiffs failed to prove that the state’s method of counting the total population of persons violated the one person, one vote principle. The court clarified that the total population of persons was not the only basis for apportionment. Justice Ginsburg’s opinion indicated that it may not be the only method the court would accept for state legislative apportionment. Justice Alito’s concurrence vehemently disagreed with the Solicitor General’s argument that state legislative districts must be equal in total population, even if it resulted in grossly unequal districts in the number of eligible voters, particularly because of the illegal alien concentration in certain parts of the state. Alito called it a meretricious argument, “apparently attractive but having in reality no value or integrity-according to Oxford Languages.

In 1966, the Court decided in Burns v. Richardson that Hawaii’s apportionment based on registered voters was valid. The state used registered voters because of the large number of tourists and non-resident military members. The Court clarified that the equal protection clause doesn’t require using total population figures from the census. It suggested that in Hawaii’s case, the state-resident U.S. citizen population would be more appropriate. While the court allowed the use of registered voters, it indicated that state citizen population was the best method. The court also noted that the distribution of registered voters approximates the distribution of state citizens or another permissible population base.

Arizona may change its constitution to use the US resident population for apportionment in state offices. Other states should consider doing the same.

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