Sunday, October 30, 2022

Who Should Be Counted in the Census?

             The topic of discussion for this Constitution Monday is the U.S. Census. Article I, Section 2 of the U.S. Constitution mandates that the population of the United States be counted every ten years. However, a recent report by the Census Bureau showed that the bureau made some serious errors in the census count taken in 2020.

            The population of eight states was overcounted, while the population of six states was undercounted. The states, like Florida, which were undercounted did not receive all the representatives to which they are entitled. At the same time, states, like Minnesota and Rhode Island, have too many representatives in Congress.

            In addition to under-representation and over-representation in Congress, the Electoral College votes for those same states will be wrong. Article II, Section 1 of the Constitution sets the number of electors for each state to be the same as its representatives in Congress – two U.S. Senators plus the number of its representatives.

            There are 435 members in the U.S. House of Representatives. Article I, Section 2 states that “each state shall have at least one representative.” That means that 50 members represent the 50 states, and the other 385 members are divided among the states according to their population. Hans von Spakovsky wrote the following about the effects of the 2020 Census. 

 As our nation has grown and added more states to the Union, the House has added more members. In 1929, however, Congress passed the Permanent Apportionment Act, which limits the size of the House to 435 members. After the 2020 census numbers were determined, those 435 members were divided among the states based on the total population of the country (a bit more than 331 million people).


That reapportionment gave six states additional seats and reduced the number of seats held by seven states. Texas gained two representatives, while California and New York each lost a congressional seat. As noted earlier, however, the Census Bureau made significant mistakes and deprived citizens in eight states of appropriate representation in Congress.


Another pathology associated with apportionment is that it is based on population totals that include noncitizens, including illegal aliens. In a nation where the population of both legal and illegal aliens now numbers in the millions, the sheer volume distorts congressional representation.


How bad is this distortion? In 2015, the Congressional Research Service issued a report on how apportionment would have changed after the 2010 census if the 2013 estimated citizen population had been used, excluding aliens here both legally and illegally.


According to the report, using citizen population only would have shifted seven congressional seats among 11 states. California, for example, would have lost four seats, while states such as Louisiana and Missouri would have each picked up a new seat.

Including the alien population in apportionment unfairly and unjustly alters political representation in the House and devalues the votes of citizens.


Some argue that the language in Section 2 that apportionment is based on the “number of persons in each state” means that aliens must be included in the apportionment calculation. However, the term “person” has historically been interpreted in this context to mean an individual who not only has a physical presence, but also some element of allegiance to a particular place.


That is why the Census Bureau, for example, does not include noncitizens who visit the U.S. for a vacation or a business trip in the population count, since they have no political or legal allegiance to any state or the federal government.          

            Since the Supreme Court has never ruled on the constitutionality of a case about apportionment including aliens. Maybe Florida or another – or maybe all – of the states missing representation will take the matter to court. The Supreme Court should weigh in on the question about whether illegal aliens/undocumented immigrants will affect the apportionment of representation in our nation.

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