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Analysis

Alabama Gives Up Census Lawsuit to Exclude Undocumented People

Census data showing the state wouldn’t lose a House seat was the final nail in the case’s coffin.

Last week, the state of Alabama gave up its long-running and unfoun­ded lawsuit to force the U.S. Census Bureau to exclude undoc­u­mented people from the popu­la­tion counts used to divvy up seats in the House of Repres­ent­at­ives. The suit — which Alabama tried to push through the courts for nearly three years — ulti­mately could­n’t escape the grav­ity of law and real­ity. Alabama’s decision to stand down marks a signi­fic­ant victory for the ongo­ing campaign to ensure a full, equit­able, and accur­ate 2020 Census and truly repres­ent­at­ive govern­ment nation­wide.

Alabama’s lawsuit chal­lenged the bureau’s “resid­ency rule,” which requires it to count every­one living in the coun­try when calcu­lat­ing the appor­tion­ment, includ­ing undoc­u­mented people. Alabama claimed that the rule would cause the state to lose one of its seven seats in Congress to a state with a larger popu­la­tion of undoc­u­mented people, since reap­por­tion­ment is a zero-sum game.

From the begin­ning, Alabama’s case had a funda­mental and fatal flaw: The appor­tion­ment base has always included all persons resid­ing in the coun­try irre­spect­ive of their immig­ra­tion status, in keep­ing with the Consti­tu­tion’s clear command to appor­tion the House based on “the whole number of persons in each state.” Federal law imple­ment­ing this consti­tu­tional mandate is equally clear: All people count because all people are “persons.” Alabama pressed forward notwith­stand­ing.

Fortu­nately, broader circum­stances inter­vened to drive the case to ground. Alabama didn’t explain how it concluded its case was done, but a quick survey of recent devel­op­ments shed light on its likely think­ing.

The most obvi­ous factor: the actual results of the 2020 Census. The bureau’s recently announced appor­tion­ment totals resul­ted in Alabama keep­ing all seven of its House seats. That devel­op­ment inval­id­ated the factual theory at the core of Alabama’s case. And it took away the harm that Alabama needed to move forward in federal court. (This is what’s called a “stand­ing” prob­lem — plaintiffs need to be hurt by the policies they’re chal­len­ging, and Alabama clearly wasn’t hurt by the bureau’s resid­ence rule in the way it claimed it would be.)

April’s appor­tion­ment results were the latest of a series of barri­ers that emerged after Alabama filed its case in 2018. First, the Supreme Court in 2019 blocked the Trump admin­is­tra­tion from putting a citizen­ship ques­tion on the census form. Without that inform­a­tion, the federal govern­ment would have struggled to develop the citizen­ship data neces­sary to carry out Alabama’s uncon­sti­tu­tional object­ive, even if the state some­how convinced the courts to upend the long-settled  rule of count­ing every­one.

Alabama didn’t give up at that junc­ture, likely because the Trump admin­is­tra­tion didn’t either. In the year follow­ing the Supreme Court’s ruling, the admin­is­tra­tion announced several more data initi­at­ives, designed to provide citizen­ship data that could be used to exclude undoc­u­mented people from appor­tion­ment and state-level redis­trict­ing.

These efforts foundered recently, too.

In Novem­ber oral argu­ments consid­er­ing Trump’s plan to exclude undoc­u­mented people from the appor­tion­ment, the justices sugges­ted that such a policy would­n’t fly.

Later, the federal govern­ment removed its support for Alabama’s exclu­sion­ary agenda. In his first day in office, Pres­id­ent Biden restored the legal status quo of count­ing every­one by revok­ing the former admin­is­tra­tion’s orders to create new citizen­ship data products. And in April, the Census Bureau announced as part of a lawsuit settle­ment that the citizen­ship data it had collec­ted under the former admin­is­tra­tion’s orders was “incom­plete” and the products it wanted were “stat­ist­ic­ally unfit for use for appor­tion­ment or redis­trict­ing purposes.”

These devel­op­ments together sent a clear message to Alabama and any other state consid­er­ing follow­ing in its foot­steps: The federal govern­ment would no longer devi­ate from the legal norm. And it would no longer func­tion as a fact­ory for unre­li­able citizen­ship data to help states viol­ate the Consti­tu­tion and other federal law.

Alabama never had a viable legal theory. By April 2021, it also had no harm and no hope for help. The state should­n’t be applauded for finally acced­ing to that real­ity. It is, after all, still push­ing forward a second, poten­tially damaging lawsuit to speed up the bureau’s produc­tion of redis­trict­ing data despite the chal­lenges posed by the pandemic.

But the circum­stances surround­ing the appor­tion­ment lawsuit’s demise send a strong signal that the coun­try’s basic, long-running consti­tu­tional commit­ments to full and fair repres­ent­a­tion will not be so easily over­turned, by Alabama or any other chal­lenger.