Colorado joins lawsuit over administration’s move to exclude undocumented immigrants

Memo on apportionment violated Constitution, states say

By: - July 27, 2020 6:07 pm
filling out census

The 2020 Census is currently underway. (U.S. Census Bureau)

Colorado Attorney General Phil Weiser announced July 24 that he had joined a lawsuit over a Trump administration memo declaring that “illegal aliens” would not be counted for the purpose of apportionment — the process of determining a state’s representation in Congress.

The lawsuit, filed in federal court for the Southern District of New York, argues that the Constitution clearly states that all people present in the U.S. should be counted in the census, which is conducted every 10 years.

The complaint — joined by 20 states, the District of Columbia, and several cities and counties — notes that for 150 years “since the United States recognized the whole personhood of those formerly bound in slavery,” every other administration has counted “all persons” for apportionment purposes, “regardless of immigration status.”

According to Trump, it’s up to him to decide who gets counted.

“The discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status,” Trump had stated in a July 21 memo directing the secretary of commerce to exclude for purposes of apportionment undocumented immigrants from the 2020 census.

As examples of others who’d been excluded from past censuses, Trump pointed to those visiting for business or tourism, foreign diplomats and overseas federal employees.

Colorado Attorney General Phil Weiser. (

The idea of the memo was to “intimidate” undocumented immigrants and their family members from responding to the census, after Trump’s first attempt to exclude the undocumented from the count — specifically through a citizenship question — was struck down by the U.S. Supreme Court, Weiser told Newsline.

“The category of people who are undocumented includes lots of different people with different stories,” Weiser said. He mentioned as two examples people who’d overstayed their visas or those fleeing life-threatening conditions.

Regardless, he said, the memo clearly violates the Constitution’s directive to count the “whole number of persons” living in each state.

New Colorado seat at stake

Colorado had somewhere around 190,000 undocumented immigrants in 2016, according to estimates from the Pew Research Center, accounting for 3.4% of the state’s population.

A July 24 Pew analysis predicted that the memo could mean California would lose two congressional seats instead of one, Florida would gain one instead of two, and Texas would gain two instead of three.

Weiser said it’s unclear how the administration would determine the number of undocumented immigrants in each state, since the citizenship question was barred from the census. But he thinks it’s a possibility that Colorado may not gain a congressional seat, as some estimates predict, if the state’s undocumented population is not counted.

Redistricting data will be released sometime next year, after the census is completed.

Undocumented immigrants can’t vote — so they wouldn’t affect who gets elected to Congress — but Trump’s memo argued that “states adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.”

Weiser said he fears the move could also mean inadequate funding for states with high populations of undocumented people, though the memo’s language focused on apportionment in Congress.

“I wish I was not in a position to have to sue the federal government to follow the law,” Weiser said.

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Faith Miller
Faith Miller

Faith Miller was a reporter with Colorado Newsline covering the Colorado Legislature, immigration and other stories.