Republicans in Congress are trying to reshape election maps by excluding noncitizens

Updated May 8, 2024 at 6:22 PM ET

A growing number of Republican lawmakers are making a renewed push for an unprecedented change to the country's election maps.

Their proposals call for excluding millions of non-U.S. citizens from the census results that determine each state's share of House seats and Electoral College votes.

In the current Congress, GOP lawmakers have filed at least a dozen measures related to using the next once-a-decade head count to tally how many noncitizens are living in the country, and then subtracting some or all of those U.S. residents from what are known as the congressional apportionment counts.

The 14th Amendment says those counts must include the "whole number of persons in each state."

Still, the Republican-controlled House voted 206-202 Wednesday along party lines to pass a bill that calls for leaving out "individuals who are not citizens of the United States."

Another proposal would change the Constitution to require citizens-only apportionment counts, though it has been stuck in the House Judiciary Committee for more than a year.

While these measures face long odds in this divided Congress — and would have to overcome constitutional questions and practical challenges — they are reviving a decades-long campaign to remake the population numbers that form the foundation of U.S. democracy.

This latest effort in Congress also comes as Republicans are making immigration a key campaign issue this year and using pointed rhetoric against the rare and illegal practice of noncitizens voting in federal elections. That focus was amplified by a press conference last month with former President Donald Trump and House Speaker Mike Johnson of Louisiana. The previous administration tried and failed to alter the apportionment counts after pushing for a citizenship question on the census — and conservative groups behind the "Project 2025" plan are preparing for a potential sequel of events if Trump returns to the White House.

Some Republicans want to exclude all noncitizens, not just unauthorized immigrants

The Trump administration attempted to add the question "Is this person a citizen of the United States?" to the 2020 census forms as part of a secret strategy to remove unauthorized immigrants from the apportionment counts.

In recent months, however, Republican lawmakers have called for similar changes with no pretense.

Some have notably proposed broadening the excluded group to cover all noncitizens — including green card and visa holders living in the country.

In order to subtract any of these populations from the apportionment counts, there would need to be data. Some of the GOP proposals put forth a new census question that would ask noncitizen participants to self-identify as "a national of the United States but not a citizen of the United States," "an alien lawfully residing in the United States" or "an alien unlawfully residing in the United States."

"Yes, the census has to count every person. The problem is the level of illegal persons that now live within the continental borders of the United States has reached such a point that it thwarts the intended service of our representative republic in the House of Representatives, in the people's House," said Republican Rep. Clay Higgins of Louisiana, a co-sponsor of the House version of the Equal Representation Act, during a House Oversight and Reform Committee meeting last month to discuss the bill.

Proposals to exclude unauthorized immigrants from apportionment counts focus on a population estimated to be around 10.5 million in 2021, according to the Pew Research Center's latest figures. But the committee's chair, Rep. James Comer of Kentucky, is among the Republican lawmakers who point to an estimate of a broader population — about 22 million noncitizens, who, Comer noted at the committee meeting, are "not evenly distributed among the states."

"Some states end up with greater representation in Congress based on a higher concentration of noncitizens," Comer added. "This dilutes the 'one person, one vote' principle for citizens in states with fewer noncitizens. It is clear that Congress can and should ensure a fair apportionment based on equal representation of citizens."

These proposals have to overcome the 14th Amendment’s call for a count of the “whole number of persons in each state”

In response, Rep. Jamie Raskin of Maryland, the top Democrat on the House oversight committee, referenced the Supreme Court's unanimous 2016 decision in the redistricting case known as Evenwel v. Abbott, which said that the 14th Amendment "calls for the apportionment of congressional districts based on total population."

Since the country's first population tally in 1790 — when one of the first lines of the Constitution required that an enslaved person be counted as "three fifths" of a free person and "Indians not taxed" not to be counted at all — both citizens and noncitizens living in the United States have been included in the apportionment counts, which the federal government has used to determine the size of each state's congressional delegation and slate of presidential electors.

After the Civil War, the 14th Amendment called for the count to include the "whole number of persons in each state." (It took decades before the Census Bureau stopped omitting some American Indians from that tally.)

Raskin, a former constitutional law professor, argued that the Equal Representation Act — which the committee ultimately advanced along party lines — "dishonors the Constitution."

"For all of you textualists out there, the plain reading of the text of the Constitution is clear. For all of the constitutional originalists out there, the original purposes have been carefully articulated and never rebutted," said Raskin, who added that for members of Congress "who like to follow precedent," every congressional apportionment has "included every single person residing in the United States, not just those lucky enough to have been given the right to vote at different points."

Still, on Wednesday, the House passed the bill, which the Biden administration has said it "strongly opposes" and the Congressional Budget Office warns would come with unknown costs from lowering participation in the census.

On the other side of Capitol Hill, Sen. Bill Hagerty of Tennessee has been leading the Senate Republican push to change the apportionment numbers — and reframe Democratic criticism of similar efforts by the Trump administration.

Hagerty, the lead sponsor of the Senate version of the Equal Representation Act, spoke on the Senate floor in March after a similar funding package amendment he proposed was defeated by all voting Democrats, independents and Republican Sen. Lisa Murkowski of Alaska.

Appearing to reference a 2020 statement in which Senate Majority Leader Chuck Schumer called Trump's presidential memo about excluding unauthorized immigrants an attempt to "weaponize the census for political gain," Hagerty said: "Aren't Democrats weaponizing the census by counting people living in our country illegally? Do we count diplomats? Do we count people that are here on vacation? Why would we count people who are here illegally? That's the essence of weaponizing the census."

According to the bureau's latest census residence criteria — which are not necessarily based on a person's legal or voting residence — citizens of foreign countries living in the U.S. are counted where they live and sleep most of the time. Diplomats are counted at the embassy, consulate, United Nations facility or other residences where they live in the U.S., and foreign citizens on a vacation or business trip in the U.S. are not counted in the census.

Still, Hagerty went on to claim that Democrats have "done nothing to secure our southern border" because they support apportionment counts continuing to include unauthorized immigrants and that "blue states" are trying to "backfill their declining populations and shore up their political power." The senator did not respond to NPR's interview requests.

In the past, some lawmakers have proposed a constitutional amendment that would change who is counted for congressional apportionment. Last year, Republican Rep. Warren Davidson of Ohio introduced his fourth attempt since first joining the House in 2016.

So far, though, no Republican lawmakers who have submitted similar bills and bill amendments in the current Congress have signed on as a co-sponsor of Davidson's proposal. That includes North Carolina Rep. Chuck Edwards, who introduced the House version of the Equal Representation Act in January, as well as two similar bills in November.

Asked by email why he has not proposed a constitutional amendment, Edwards, who did not make himself available for an interview, issued a statement that did not respond directly.

Estimating political consequences for states isn’t so easy

Instead, Edwards' reply pointed to a Pew Research Center study of what would have happened if unauthorized immigrants were excluded from the 2020 census apportionment counts that were used to reshuffle 435 House seats based on how the states' populations rank.

Some critics of the current system of counting all residents for congressional apportionment say it gives Democrats a boost over Republicans.

Jeff Passel, one of the Pew study's co-authors and a demographer who has tracked immigration trends for decades, warns, however, that the formula used to redistribute congressional seats "can be very sensitive to small changes in populations," making it especially difficult to predict potential scenarios accurately.

Passel shared with NPR an updated study that uses more comprehensive estimates, and it suggests that California and Texas would have each received one fewer U.S. House seat, and Ohio and New York would have each received one additional seat if the 2020 apportionment counts did not include unauthorized immigrants.

Excluding the broader group of all noncitizens, Passel found, would have resulted in California receiving three fewer seats, plus Texas and Florida with one fewer seat each. Idaho, Michigan, Ohio, Pennsylvania and West Virginia would have each received one additional seat.

"There's not a clear pattern when we just look at the unauthorized immigrants," Passel says about how changing who is counted in the apportionment numbers would affect heavily Republican and heavily Democratic states. "It's a little bit more tilted towards favoring Republicans if all noncitizens were excluded. But it's still a mixed bag."

Where immigrants choose to settle is shifting, and that adds to the difficulty in foreseeing the electoral-map implications from any changes to the next set of apportionment counts from the 2030 census.

"All of our immigration policies are really up in the air right now," Passel says. "And the immigration patterns have changed considerably over just the last 10 years in terms of numbers and sources of immigrants. So, six years from now, it could be different from what it is."

These proposals could also affect state and local election maps

There are other possible political consequences that come with these Republican proposals to add a citizenship question to census forms.

The Census Bureau already produces estimates of U.S. citizens and noncitizens. But asking a citizenship question on the next census, which every household in the country is required by law to complete, would produce a much more detailed set of statistics.

That neighborhood-block level data on people's U.S. citizenship status has long been sought after by proponents of reshaping how state and local legislative districts are drawn. This alternative way of political mapmaking, a GOP redistricting strategist said, would be "advantageous to Republicans and Non-Hispanic Whites." And whether it would be legal remains an open question before the Supreme Court.

There are also unresolved questions about how this kind of change would be carried out.

The bureau's research suggests that adding a citizenship question to census forms is likely to not only produce faulty self-reported data, but also discourage many households with Latino or Asian American residents from getting tallied.

"A lot of the census data is reported by neighbors and household members who may not know where people are born, who may not know whether they're citizens or not," says Passel of the Pew Research Center, who previously worked at the bureau on measuring census undercounts.

Including a citizenship question, Passel adds, "introduces another source of potential error into the census, and it undermines public confidence in the data as well."

Trillions of dollars for states and local communities are also at stake

Democratic Rep. Grace Meng of New York says that what's helping to drive her efforts to block these Republican proposals.

Working with Sen. Mazie Hirono, a Democrat from Hawaii, Meng led a letter to congressional leaders in January that cites NPR's reporting and opposed a section of a Census Bureau funding bill that would have banned including unauthorized immigrants in the 2030 census apportionment counts, implicitly requiring the bureau to add a census question about people's immigration status.

"It would affirm the fears of undocumented immigrants and immigrants with legal status that registering with the government could lead to deportation," said the letter, which was also signed by 48 other Democratic lawmakers. "Citizens and non-citizens alike would avoid the Census entirely, undermining the accuracy of census numbers used for a myriad of important purposes in every state and community."

"I don't know exactly what Republicans' motivations are, but it really is something that is reckless and cynical and, quite frankly, illegal," Meng tells NPR. "People can pretend all they want that noncitizens don't live in our country and in our communities, but that's not solving problems for whatever they're trying to solve. It just creates more fear and forces people into the shadows and literally takes away money from our own communities."

Census results guide how more than $2.8 trillion a year in federal money is distributed to states and local communities, and many census advocates are worried that officials raising the possibility of asking about people's immigration and U.S. citizenship status, plus leaving noncitizens out of the congressional apportionment counts, could ultimately lead to communities not getting their fair share in funding for Medicare, Medicaid, schools, roads and other public services in the coming decade.

While the Republican sponsors of these proposals oppose including noncitizens in the specially calculated apportionment counts, none of the GOP lawmakers' measures have called for leaving noncitizens out of the overall census numbers used to distribute those trillions of dollars, including to their own home districts and states.

Edited by Benjamin Swasey

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