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Statel v. United States Department of Commerce

United States District Court, N.D. Alabama, Southern Division

June 5, 2019

STATE OF ALABAMA, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

         In this case, the State of Alabama and U.S. Representative Morris J. Brooks, Jr. seek a declaratory judgment that the federal government's inclusion of illegal aliens in the population figures used to apportion congressional seats among the states is unlawful. (Doc. # 1). The federal defendants have moved to dismiss the lawsuit, asserting that Plaintiffs lack Article III standing. (Doc. # 45). After careful review, and with the benefit of oral argument, the court holds that Plaintiffs have adequately alleged Article III standing. Defendants' motion to dismiss is therefore due to be denied.

         I. Background[1]

         The Constitution provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. amend. XIV, § 2. To make that apportionment possible, the Constitution mandates that an “actual Enumeration” be conducted “every . . . ten Years, in such Manner as [Congress] shall by Law direct.” Id. art. I, § 2, cl. 3.

         Heeding this mandate, Congress has by law directed the Secretary of Commerce to “in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year.” 13 U.S.C. § 141(a). The decennial census may be taken “in such form and content as [the Secretary] may determine.” Id. Following completion of the decennial census, the Secretary must submit to the President “[t]he tabulation of total population by States . . . as required for the apportionment of Representatives in Congress among the several States.” Id. § 141(b).

         These total population figures are then used for a variety of purposes. As relevant here, the population figures generated by the census are used to (1) apportion seats in the House of Representatives among the states, 2 U.S.C. § 2a(a), (b); (2) allocate Electoral College votes among the states, 3 U.S.C. § 3; and (3) allocate federal and private funds among the states (Doc. # 1 at 18-20, ¶¶ 73-86). The court briefly discusses the process by which each of these tasks is accomplished.

         Congressional Apportionment:

         As noted above, the Constitution requires seats in the House of Representatives to be “apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. amend. XIV, § 2. Within nine months after April 1 of the decennial census year, the Secretary of Commerce must submit to the President “[t]he tabulation of total population by States . . . as required for the apportionment of Representatives in Congress among the several States.” 13 U.S.C. § 141(b). After receiving the Secretary's report, another statute instructs the President to “transmit to the Congress a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member.” 2 U.S.C. § 2a(a).

         Under that same statute, each state is “entitled . . . to the number of Representatives shown” in the President's statement, and the Clerk of the House of Representatives must “send to the executive of each State a certificate of the number of Representatives to which such State is entitled.” Id. § 2a(b). Thus, the number of congressional representatives a given state receives is determined by the President's statement, which must apportion representatives based on the total population of each state “as ascertained under the . . . decennial census.” Id. § 2a(a); see also Franklin v. Massachusetts, 505 U.S. 788, 791-92, 797-800 (1992) (describing the President's role in the reapportionment process).

         Electoral College Vote Allocation:

         The number of presidential electors each state receives is directly tied to the state's congressional delegation and thus, by extension, to the state's population as determined in the decennial census. The Constitution provides that the number of electors in each state shall be “equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” U.S. Const. art. II, § 1, cl. 2. In keeping with this constitutional provision, Congress has provided that “[t]he number of electors shall be equal to the number of Senators and Representatives to which the several States are by law entitled at the time when the President and Vice President to be chosen come into office.” 3 U.S.C. § 3. Thus, any change in the number of congressional representatives to which a state is entitled results in a corresponding change in the number of presidential electors to which it is entitled.

         Allocation of Federal and Private Funds:

         The amount of certain federal and private funds a state receives also depends in large measure on the state's total population as determined by the decennial census. (Doc. # 1 at 18-20, ¶¶ 73-86). Many federal programs rely on the population figures generated by the decennial census to allocate funds to state and local governments. (Id. at 18, ¶ 74). For example, the Highway Trust Fund provides grants to states for road construction and other surface transportation programs, which are calculated on the basis of local population estimates collected through the decennial census. (Id. at ¶ 75) (citing 23 U.S.C. § 104(d)(3)). In fiscal year 2015, Alabama received $756 million in Highway Trust Fund grants. (Id. at ¶ 76). Numerous other federal programs, through which Alabama receives millions of dollars each year, also rely on population data from the decennial census to allocate funds among states. (Id. at 19, ¶¶ 77-80). Additionally, the Department of Commerce estimates that census data guides trillions of dollars in private-sector investment, and nonprofit organizations often use census data to decide where to provide critical aid like health care and disaster relief. (Id. at 19-20, ¶¶ 83-84). Thus, state population figures as determined by the decennial census have the potential to alter the amount of private sector investment and nonprofit aid a state receives.

         In conducting the census, the Secretary of Commerce endeavors to count every single person living in the United States, without regard to citizenship or legal resident status. (Doc. # 1 at 7-8, ¶¶ 16-19). By regulation, citizens of foreign countries living in the United States (including those here illegally) are counted “at the U.S. residence where they live and sleep most of the time.” Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525-01 at 5533 (Feb. 8, 2018). These individuals are then included in the total state population figures used for apportionment and Electoral College purposes (the “apportionment base”), regardless of whether they are legal residents of the United States. (Doc. # 1 at 8, ¶ 19-20). Thus, when congressional seats and Electoral College votes are apportioned among the states, the apportionment base will include the illegal alien population of each state. (Id. at ¶ 20). By the same token, federal programs and private actors that rely on census population data to allocate funds and resources among the states will base their decisions on state population figures that include the illegal alien population of each state. (Id. at 19-20, ¶¶ 81, 85-86).

         The State of Alabama and U.S. Representative Morris J. Brooks, Jr. (who represents Alabama's 5th congressional district) claim that the federal government's inclusion of illegal aliens in the apportionment base is unlawful. Specifically, they contend this practice violates (1) § 2 of the Fourteenth Amendment, (2) the Enumeration Clause of Article I, § 2, (3) the Electoral Apportionment Clause of Article II, § 1, and (4) the Administrative Procedures Act, 5 U.S.C. § 706(2)(A), (C). (Doc. # 1 at 20, ¶ 87). And, more importantly for purposes of this opinion, Alabama and Representative Brooks claim they will be injured if the total state population figures from the 2020 census include the illegal alien population of each state. Alabama and Representative Brooks each allege two injuries they will suffer if the federal government is permitted to include illegal aliens in the final population figures following the 2020 census.

         Alabama alleges it will suffer (1) a loss of political representation in Congress and the Electoral College and (2) the loss of federal and private funds it would otherwise have received. (Doc. # 1 at 15-20, ¶¶ 50-86). In particular, Alabama alleges that if illegal aliens are included in the final population figures used for congressional reapportionment, one congressional representative and one Electoral College vote will be reallocated from Alabama to a state with a larger illegal alien population. (Id. at 1-2, ¶ 1). Alabama further asserts that counting illegal aliens in the 2020 census will cause it to lose federal and private funds it would have received had illegal aliens been excluded from the count. (Id. at 19-20, ¶¶ 81, 85-86). According to Alabama, funds it would have received will be redistributed to states that have disproportionately high illegal alien populations, because those states will show a much greater total population than they would if illegal aliens were excluded from the census. (Id. at 19, ¶ 81).

         Representative Brooks' alleged injuries are (1) that his vote will be diluted due to Alabama's loss of political representation in Congress and the Electoral College and (2) that the congressional district he represents will be disrupted when Alabama loses one of its congressional seats. (Id. at 4, ¶ 2). In short, both of Representative Brooks' alleged injuries derive from and depend on Alabama losing one U.S. House seat in the reapportionment following the 2020 census.

         II. Legal Standard

         Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. But not all disputes that might be termed “cases” or “controversies” in the colloquial sense count as Article III cases and controversies. The doctrine of standing serves to identify those disputes which qualify as Article III cases and controversies-that is, “those disputes which are appropriately resolved through the judicial process.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

         The test for determining whether a plaintiff has standing is familiar. “[T]he irreducible constitutional minimum of standing contains three elements.” Lujan, 504 U.S. at 560. First, the plaintiff must have suffered an “injury in fact.” Id. An injury in fact is “an invasion of a legally protected interest” which is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks removed). Second, the conduct complained of must have a causal connection to the plaintiff's injury. Id. This means the injury must be fairly traceable to the defendant's conduct, not the conduct of some third party not before ...


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