United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
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.
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.
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).
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.
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).
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
College Vote Allocation:
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.
of Federal and Private Funds:
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.
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).
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.
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).
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
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).
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 ...