The Question of Who Counts

When courts consider the prospect of excluding noncitizens from representation, they should bear in mind the country’s past.

An illustration of the U.S. census and the Statue of Liberty
Getty / The Atlantic

About the author: Amanda Frost is the Ann Loeb Bronfman professor of law & government at American University’s Washington College of Law.  She is the author You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers.

Now that the 2020 census is over and the data are in, the redistricting wars can begin. All 50 states must divide their population into voting districts for the purpose of electing representatives to Congress and to the legislature of each state. The process is sure to be messy, partisan, and contentious—in other words, business as usual. But this year the decennial cycle brings with it a new constitutional question that could rewrite the fundamental rules of American democracy: whether to count noncitizens when apportioning political representation.

This is an enormously consequential question. As the late Republican strategist Thomas Hofeller put it in a 2015 report, excluding noncitizens “would be advantageous to Republicans and Non-Hispanic whites.” Urban areas tend to lean Democratic and have a younger, more diverse population, including more immigrants, than rural areas. Those older, whiter rural areas, then, tend to have fewer immigrants and vote Republican. Excluding noncitizens from being counted in redistricting would shift political power—and the state tax dollars and resources that come with it—to Republicans representing these less populated, less diverse rural regions.

Over the past few years, some Republicans have been laying the groundwork for excluding noncitizens from being counted in both federal and state redistricting. Republican officials in Arizona, Missouri, Nebraska, and Texas have discussed excluding noncitizens when apportioning the state legislature. In November, Missouri voters passed an amendment to their state constitution that would seem to permit such a move.

Is barring noncitizens from the population counted toward apportionment constitutional? In recent years, the Supreme Court has twice been asked to address that question but has dodged the issue both times—most recently in December. Soon, both the courts and state officials will be forced to decide. When they do, they must be guided by the nation’s shameful history regarding who “counts” for the purpose of political apportionment—a history that reveals the issue to be about far more than partisan power.

At the federal level, the question was supposedly put to rest long ago. The Fourteenth Amendment, added to the United States Constitution in 1868, requires that seats in the House of Representatives (and by extension the Electoral College) be apportioned based on the “whole number of persons in each State.” The framers of that amendment considered and rejected using the word citizen, explaining that “representation … was to be based upon population, independent of the franchise, independent of citizenship.” Representative John Bingham, during the 1866 debates over the Fourteenth Amendment, argued, “Under the Constitution as it now is and as it always has been, the entire immigrant population of this country is included in the basis of representation.” States have followed the federal lead—counting all “persons,” including noncitizens, when allocating political power.

The Fourteenth Amendment was one of three amendments made to the Constitution during the Reconstruction era immediately following the Civil War. The goal was not only to abolish slavery but also to end “caste” and “oligarchy of the skin,” as Senator Charles Sumner put it, by enshrining the equality principles of the Declaration of Independence into the nation’s constitutional values.

As originally written in 1787, the Constitution counted slaves as three-fifths of a person when allocating representation in Congress—one of several provisions incorporating slavery into the document. The Fourteenth Amendment put an end to such vestiges of slavery, ensuring that all persons (not just citizens) were entitled to “equal protection of the laws,” and further requiring that all persons were to be counted equally when apportioning political representation. That basic equality principle has been accepted by the nation for more than 150 years.

That is, until now.

The Trump administration fought hard to exclude noncitizens generally—and undocumented immigrants in particular—from legislative apportionment. At the 11th hour, Commerce Secretary Wilbur Ross sought to add a citizenship question to the decennial census. Had he succeeded, the 2020 census would have generated the data needed to exclude noncitizens, and likely would have chilled responses to the census by immigrants and their families in the process. (Two birds, one stone). The Supreme Court rejected the effort, and the census went forward without the citizenship question.

Undeterred, in the summer of 2020, President Donald Trump issued a memorandum declaring that his administration would not count undocumented immigrants when providing Congress with the numbers to be used in apportionment. The administration planned to rely on alternative sources of data regarding citizenship and immigration status, such as passport applications and naturalization records—never mind that gaps and discrepancies in these records make them insufficient for identifying noncitizens with the pinpoint accuracy needed for redistricting. If Trump had succeeded, California, Texas, New York, and Florida would surely have lost seats in Congress as a direct result of the change. (A revealing side story: In an act of wishful thinking in the fall of 2020, the Trump administration rewrote a question on the civics test required for naturalization. The accepted response to “Who does a U.S. Senator represent?” was changed from “All people of the state” to “Citizens.”)

Upon taking office, President Joe Biden immediately rescinded Trump’s executive order (as well as the flawed question on the naturalization test). So the issue at the federal level is moot, at least for now.

But it remains very much alive at the state level. Proponents argue that because noncitizens cannot vote, they also should not be counted when apportioning representation in the state legislatures. Republican lawmakers in Nebraska, Texas, Arizona, and Missouri have said they would consider excluding noncitizens from apportionment if they could obtain the data on citizenship status to do so. A bill to accomplish that was introduced in Nebraska, though it did not become law. Missouri voters plowed ahead, recently approving an amendment to their state constitution that seemingly allows the exclusion of all people not eligible to vote from being counted in redistricting.

Does the Constitution permit this? Although it states that all persons must be counted when allocating representation in Congress, it is silent on how states should apportion their own legislature. In the past, the Supreme Court made clear that legislative districts must be equal in size, but did not specify whether equality required the same number of citizens, eligible voters, or the total population of each legislative district.

The absence of clear text makes historical experience all the more important. The founding generation’s embrace of slavery, embodied by the three-fifths compromise, must inform this constitutional debate. Putting an end to slavery came with a renewed constitutional commitment in the Fourteenth Amendment to ensure that all persons are counted, as well as entitled to equal protection of the law.

As the Fourteenth Amendment recognizes, every inhabitant of the United States, whatever their citizenship status, has a stake in its future. All use its roads, libraries, hospitals, parks, bridges, and schools. Citizens and noncitizens alike breathe the same air and drink the same water. Principles of equality support allocating political power based on the whole population to ensure that elected representatives of each district protect the interests of all who live there, whether or not those individuals can vote.

Remember that noncitizens are not the only residents of the United States who do not vote. Children are barred from voting, and many adults who are eligible to vote choose not to. Nonetheless, the 50 states have always counted these nonvoters when allocating political power, because they are members of the community who equally deserve political representation, as well as a fair share of taxpayer dollars and government resources.

Missouri State Senator Dan Hegeman, a sponsor of the Missouri law, argued on the Senate floor that the new redistricting law would ensure that only “the people that are able to vote are the people to be counted.” When asked whether his logic required excluding children, Hegeman quickly backtracked, explaining that “nothing in [the law] prohibits the counting of children.” He meant to exclude only noncitizens.

Apparently, Hegeman understands that children should be counted when it comes to political representation and fair allocation of resources, even though they cannot vote or exercise all the rights of full citizenship, because they are persons whose interests matter. That reasoning inspired the Reconstruction-era Congress to choose to count all persons equally, and not only citizens, when apportioning representation in Congress. The same principle should continue to guide the country today.