As Census forms goes out to the nation between March 12 and March 20, the focus will be on how people can fill them out online to reduce spread of coronavirus, but we can’t forget the other most notable part of the census questionnaire: a citizenship question will not be on it. The census counts every person living in the country, including unauthorized immigrants and green-card holders. Last June, the Supreme Court narrowly struck down the Trump administration’s years-long effort to include a citizenship question, stating that the administration’s ostensible rationale for the question — to aid in the enforcement of the Voting Rights Act — “seems to have been contrived.”
The discovery of Republican redistricting expert Thomas Hofeller’s files exposed the administration’s real reasoning: to make possible redistricting and reapportionment schemes “advantageous to Republicans and non-Hispanic whites.” The use of Hofeller’s research by senior Justice and Commerce Department officials (the latter of whom supervise the Census Bureau) demonstrated that the erstwhile citizenship question was designed to enable state governments to exclude noncitizens from population calculations used to apportion state legislative districts.
While it was thwarted for the 2020 census, the Trump administration’s efforts to assist in the malapportionment of state legislatures have only begun. Court battles seeking to exclude all or some noncitizens from future apportionment and redistricting plans continue despite the courtroom defeat of the citizenship question last summer. And President Trump has issued an executive order requiring federal departments to share citizenship data in their possession with the Commerce Department as a means of working around the court’s rejection of a Census citizenship question.
With post-2020 Census redistricting battles and apportionment fights on the horizon, it is useful to explore the little-known yet cautionary tale of citizen-only apportionment schemes in American history. While this past reveals that anti-alien apportionment proposals can be — and have been — defeated, it also warns that if adopted by state governments (and found to be constitutional by the U.S. Supreme Court), such policies will likely carry significant weight and prove hard to repeal for years to come.
Frequently tied to other provisions circumscribing the power of marginalized communities in state politics, measures excluding noncitizens from the population for the purposes of apportionment date to the early republic. New York barred noncitizens — alongside free blacks and paupers — from the state’s apportionment basis following its 1821 constitutional convention.
Decades later, Henry Gardner, the anti-Catholic Know Nothing governor of Massachusetts, successfully campaigned for an anti-alien apportionment state constitutional amendment in 1857 during a period of intense anti-Irish nativism. Delegates to California’s 1878-1879 constitutional convention forbade “aliens ineligible to citizenship” (namely East and South Asian immigrants) from the state’s apportionment basis at an assembly dominated by the violently racist anti-Chinese Workingmen’s Party. And Nebraska excluded noncitizens from state legislative apportionment calculations amid a flurry of anti-German legislation, constitutional revision and vigilantism during and immediately after World War I.
Anti-alien schemes reached their nadir when the U.S. House of Representatives was not reapportioned — at all — following the 1920 Census. Throughout the 1920s, a powerful bipartisan nativist faction of lawmakers representing — or allied to — regions set to lose seats in the House of Representatives flagrantly flouted their constitutional obligation to reapportion the House every 10 years. That same faction further demanded the passage of legislation to exclude noncitizens from future rounds of reapportionment despite the constitution’s requirement to base congressional reapportionment on the total population residing in the United States.
Then, as now, proponents of citizen-only proposals frequently argued that including noncitizens in apportionment calculations unfairly reduced the power of voters in (usually rural) jurisdictions with large citizen populations in relation to (often urban) communities with large noncitizen populations. Opponents of these measures, by contrast, charged that anti-alien policies amounted to “taxation without representation” and defended noncitizens as law-abiding “constituents.” But these were not the only terms of debate.
Supporters of anti-alien apportionment plans frequently embraced anti-urban and xenophobic rhetoric. New Hampshire politician Henry Metcalf argued that urban centers, composed “largely of alien population, who have no interests in common with the average intelligent New Hampshire voter,” were “not entitled to the same consideration as” residents of “little country towns” at the state’s World War I-era constitutional convention. And, according to a 1920s New York Times article, a woman identified as “Mrs. E.M. Dickinson,” treasurer of the New York State Women’s Republican Club, supported a nationwide citizen-only congressional apportionment basis, citing a highly inaccurate belief that “crime could be traced in most instances to alien criminals.”
Supporters of including noncitizens in apportionment policies fiercely contested — and sometimes defeated — the nativism espoused by Metcalf and Dickinson. New Hampshire voters did not ratify a citizen-only apportionment policy following the First World War. And the decade-long nativist attempt to ban noncitizens from the federal House of Representatives apportionment basis was finally defeated in 1929. When Congress was reapportioned following the 1930 Census, noncitizens were included in those calculations.
When they were adopted, however, anti-alien apportionment provisions usually proved powerful and durable. New York’s citizen-only policy, coupled with the explicit overrepresentation of rural counties and the state’s failure to reapportion the legislature on a regular basis, grossly inflated the number of legislative seats assigned to upstate (largely native-born and Republican) communities vis-a-vis New York City’s (largely immigrant and second-generation Democratic) districts. While Democrats frequently won statewide elections — sometimes by huge margins — in the early to mid-20th century, these malapportionment schemes ensured that Democrats would control both chambers of the state legislature for only a mere one year (1935) between 1913 and 1965.
Citizen-only apportionment policies also proved to be a massive challenge to enforce. Whether states used federal Census citizenship information or ran their own enumerations to identify noncitizens, data limitations led to repeated difficulties in implementation and accusations of inaccurate reapportionment calculations. Yet, despite these challenges, anti-alien apportionment measures proved stubbornly resistant to repeal efforts. The state constitutions of New York and Massachusetts retained their 19th-century citizen-only apportionment provisions until 1969 and 1970, respectively.
Though a citizenship question will not be included on the 2020 Census, the Trump administration’s attempts to enable new anti-alien apportionment measures are far from over. At this moment, it continues to amass citizenship data via alternative administrative records. Meanwhile, some Republican state legislators gearing up for redistricting and reapportionment battles — encouraged by the conservative American Legislative Exchange Council — are considering using this data to craft citizen-only apportionment schemes for their own state houses.
Were a state-level citizen-only apportionment proposal to come into force, it would undoubtedly be challenged in court. Voting rights and immigrant rights advocates have a plethora of evidence to demonstrate the harm such a policy would impose on racially marginalized communities and the would-be provisions’ violations of the (federal) constitution. But lawmakers and advocates who support including all residents in apportionment calculations — as community members and as taxpayers — should not assume that this Supreme Court will strike down a new anti-alien policy that may arise in the future.
History teaches us that proposed anti-alien apportionment plans can be defeated. It also indicates that, once adopted, such provisions are likely to become embedded into the politics and constitutions of those states. As in earlier eras of American history, such policies threaten to exacerbate inequalities in representation not only during the 2020s, but for decades to come.