The ruling follows the Supreme Court’s Oct. 16 decision to take up a similar case after a federal court in New York blocked the memo. Legal experts said the California ruling adds ballast to the plaintiffs’ arguments in that case.
Thursday’s sweeping, unanimous opinion found that the “Constitution’s text, drafting history, 230 years of historical practice, and Supreme Court case law all support the conclusion that apportionment must be based on all persons residing in each state, including undocumented immigrants.
“Since the Founding, the term ‘persons in each state’ has been unambiguously understood to include all persons residing in each state, regardless of their immigration status,” the ruling continued, noting that “until the current Administration, the [Department of Justice] has consistently concluded that it would be unconstitutional to exclude undocumented immigrants from the apportionment base.”
Under federal law, the president must deliver to Congress state population counts based on the census. It is not clear how the government plans to identify and count undocumented immigrants to exclude from state population figures. The government has argued that the courts should wait to rule until the president actually excludes them.
Challengers to the memo say cutting undocumented immigrants from the apportionment count would reduce funding and political power to the jurisdictions where they live. Along with Congressional seats, census data is used to determine state redistricting and $1.5 trillion each year in federal funding.
Thursday’s ruling, by U.S. Circuit Judge Richard Clifton, U.S. District Judge Lucy Koh and U.S. District Judge Edward Chen, “just made it significantly harder for the Supreme Court to rule against the plaintiffs in the New York case” or other challenges to the memo underway, said Thomas Wolf, senior counsel and Spitzer Fellow at the Brennan Center for Justice at New York University’s School of Law.
The New York court ruled only on the federal statutory law portion of the complaints in that case, while the California court ruled that the memo violates the Constitution as well as the Census and Reapportionment acts.
The California ruling also expanded the scope of the New York court’s injunction, which was limited to a Dec. 31, 2020, delivery of census data to the president. Because of delays and litigation around the schedule of the decennial survey, the Census Bureau now says it may not deliver the numbers to the president by that date.
The California court’s injunction applies to “any reports otherwise provided by the Secretary as part of the decennial census,” which includes numbers the bureau has indicated it could deliver as late as Jan. 11, 2021.
The Supreme Court could decide to fold the two cases together, or it may decide to broaden its consideration of the New York case to include the issue of constitutionality, said Justin Levitt, a constitutional law professor at Loyola Law School in Los Angeles. Either way, he said, “the arguments they have raised will be part of what the Supreme Court considers.”
Levitt called the opinion forceful and unambiguous. “This panel is not a universally liberal panel. It was unanimous. And not a lot of hemming and hawing. This court recognized just as the New York court recognized that there’s really no daylight for the president to do what he wants to do.”