Attorney General Catherine Hanaway has filed a lawsuit against the U.S. Department of Commerce and the Census Bureau seeking to stop the counting of illegal aliens and temporary visa holders in census tabulations and to require a recount of the 2020 Census for purposes of congressional apportionment.
The lawsuit, filed Jan. 30 in the U.S. District Court for the Eastern District of Missouri, challenges long-standing federal census policies and argues that their application has diluted Missouri’s representation in Congress, the Electoral College and the allocation of federal funding.
In announcing the lawsuit, Hanaway described it as a first-of-its-kind action aimed at what she called the denial of Missourians’ right to fair representation.
The complaint contends that the current policy of including illegal aliens in census counts used for apportionment is unlawful and unconstitutional, and that it transfers political power and resources away from states such as Missouri.
Hanaway said the state and its voters “can no longer ignore” what she characterized as an erosion of self-government and representation.
According to the attorney general’s office, the lawsuit asserts that only United States citizens and lawful permanent residents are entitled to representation and that the inclusion of illegal aliens and temporary visa holders in census apportionment violates Section 2 of the Fourteenth Amendment as well as the Administrative Procedure Act.
The suit seeks a declaration that the inclusion of these populations in the 2020 Census and the resulting 2021 apportionment was unlawful, and asks the court to order corrective action.
The complaint argues that states that enforce immigration laws are disadvantaged when census counts include individuals who are unlawfully present in the country, while so-called sanctuary states benefit from population figures that, according to the filing, are artificially inflated.
The attorney general’s office alleges that this has resulted in the transfer of congressional seats, electoral votes and funding away from Missouri and toward states such as California, New York, Illinois, Massachusetts, New Jersey and Maryland.
The lawsuit traces the policy at issue back to a decision made prior to the 1980 Census, when the Carter Administration determined that illegal aliens and temporary visa holders would be included in the decennial census and in apportionment calculations.
The complaint states that the framers of the Constitution and the Fourteenth Amendment did not envision a system in which individuals unlawfully present in the country would be counted for representation in Congress and the Electoral College.
The filing also references a July 2020 memorandum issued by then-President Donald Trump, which directed the Secretary of Commerce to exclude illegal aliens from the apportionment base, even though they were counted in the 2020 Census enumeration.
That directive prompted lawsuits from California and New York. While injunctions were initially issued, the Supreme Court later vacated them, according to the attorney general’s office.
The complaint argues that the resulting delays allowed the Biden Administration to reverse the Trump-era policy and include illegal aliens in the apportionment base.
Hanaway’s office claims that had illegal aliens been excluded from the 2021 apportionment, Missouri would have gained an additional congressional seat and an additional electoral vote.
Instead, the lawsuit alleges, the reversal of the Trump Administration’s action deprived Missouri of representation it otherwise would have received.
Beyond representation, the complaint contends that census-based funding allocations have harmed Missouri.
It cites Census Bureau data indicating that more than 350 federal programs rely on census figures to distribute funds to state and local governments.
By including illegal aliens in census enumerations, the filing argues, Missouri and its residents have been deprived of their fair share of federal and private funding derived from those counts.
In addition to seeking a declaration regarding the 2020 Census and 2021 apportionment, the lawsuit asks the court to require the Census Bureau to redo the census and apportionment using the best available methods, including potentially re-conducting the 2020 enumeration.
The complaint also seeks a declaration that including illegal aliens and temporary visa holders in the 2030 Census and the 2031 apportionment would be unlawful and requests an order prohibiting their inclusion in future census tabulations.
The attorney general’s office said the lawsuit is intended to prevent what it describes as the continued loss of fair representation in the House of Representatives, the Electoral College and federal funding if no corrective action is taken.
