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Firm Files Amicus Brief Challenging Attempt to Exclude Undocumented Immigrants From the Congressional Apportionment Base

November 18, 2020

On November 16, 2020, the Firm filed an amicus brief with the U.S. Supreme Court in litigation challenging President Trump’s attempt to exclude undocumented immigrants from the congressional apportionment base.

Both the Constitution and federal statutes require that seats in the U.S. House of Representatives be apportioned among the states according to the “whole number of persons in each State.”  Ever since the first census in 1790, this has been understood to include all persons living in each state, regardless of their citizenship or immigration status.  In July 2020, President Trump issued a memorandum unilaterally announcing that it is now “the policy of the United States” to exclude undocumented immigrants from the census count when calculating the number of seats each state receives in the House.  If implemented, the memorandum threatens to decrease congressional representation (and by extension, the Electoral College votes) for a number of states, including New York, California, Texas, Florida, and New Jersey.

The litigation at issue seeks to enjoin the federal government from implementing the memorandum.  The Firm’s amicus brief was filed on behalf of Common Cause and a coalition of cities, voters, and nonprofit organizations that the Firm represents in other pending litigation challenging the memorandum.  It argues that the plaintiffs have Article III standing to challenge the memorandum, that the claims are ripe for review, and that the memorandum is unlawful. The Supreme Court is scheduled to hear argument in the case on November 30, 2020.

To read the full brief, click here.

To read additional information about the Firm’s pending challenge to the memorandum in the District of Columbia, click here.