The attorneys general of Louisiana, Kansas, Ohio and West Virginia are suing to prevent the US Census Bureau from including illegal immigrants in the count used to allocate congressional seats and electoral votes.
The lawsuit filed in Louisiana federal court on Sunday – the day before President Donald Trump took office – says the Biden administration decided to include illegal immigrants counted in the 2020 census as part of the population in order to share congressional seats and electoral votes. That allegedly resulted in Ohio and West Virginia each losing a congressional seat and an electoral vote to other states with large populations of illegal immigrants and temporary visa holders living there.
The lawsuit says Texas gained one congressional seat and one electoral vote, while California retained a congressional seat and an electoral vote it “couldn’t have lost.”
Common law advocates argue that Louisiana and Kansas could each potentially lose a congressional seat and an electoral vote in 2030 redistricting if the trend continues.
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“We should not lose representation in Congress because of the presence of illegal immigrants living in other states,” Louisiana Attorney General Liz Murrill said in a statement. “Counting Illegal Aliens in the census to get Congressional seats and electoral votes is illegal. We are suing to stop it.”
Immigrants wait for their CBP One turns before crossing the El Chaparral border port in Tijuana, Mexico, on Jan. 20, 2025. Trump administration shuts down CBP One operation. (Carlos Moreno/NurPhoto via Getty Images)
In February 2018, the US Census Bureau developed a rule for the 2020 census, called the “Residence Rule,” which stated that foreign nationals living in the US are counted in the census and assigned to the state where their “ordinary residence” is located. The lawsuit notes how that happened unless those aliens are legally present in the US and “regardless of whether any visa they may have is temporary.”
After the 2020 census, the lawsuit alleges that President Biden’s former Commerce Secretary Gina Raimondo, along with the Census Bureau and its director, Robert Santos, decided to include “illegal aliens and aliens holding temporary visas (‘immigrant aliens’) in the census used to determine the distribution of votes in the House of Representatives and the Electoral College.”
The suit claims that the Housing Act violates the principle of equal representation of the Fourteenth Amendment by “depriving the people of the Plaintiff States of their fair share of political representation, while redistributing political power to states with high numbers of aliens and nonimmigrants,” and. such as Article II, Section 1, of the United States Constitution “requiring the illegal distribution of Electoral College votes among the states.”
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“The Settlement Act also violates the federal government’s constitutional obligation to take a ‘True Census’ of the number of “people in each State,” the lawsuit said. The Reconstruction period would be limited to United States citizens and permanent aliens who were legally admitted to the body politic created by the Constitution.”
It continues, “Aliens who are illegally or temporarily in the United States are not eligible because they lack the right to political representation. It has long been understood that foreign diplomats who are in the US temporarily are also ineligible.”
“But, in any event, the Fourteenth Amendment separately requires that illegal aliens who are denied the right to vote be excluded from state appropriations,” the lawsuit said. “Therefore, the actual count of the state’s population cannot include immigrants. Only US citizens and legal permanent residents (“LPRs,” also known as “green card holders”) are excluded.”
People wait for their CBP One turns before crossing the El Chaparral border crossing in Tijuana, Mexico, on Jan. 20, 2025. Trump administration shuts down CBP One immigration enforcement program. (Carlos Moreno/NurPhoto via Getty Images)
The attorneys general argued that illegal immigration “affects the distribution of seats in the House of Representatives and the Electoral College because the illegal immigration population is large and concentrated in a few states.”
The lawsuit goes on to summarize research that suggests there are approximately 11.7 million illegal immigrants in the US, stating that over the past three decades, the United States has “been experiencing the largest wave of immigration in American history.”
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“Counting illegal aliens in the census takes voting power away from some Americans and gives it to others,” the lawsuit said.
President Trump has promised mass deportations and declared a state of emergency on the southern border on his first day in office. It is unclear how the case will affect the future Trump administration.
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