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Trump Administration’s Recent Actions Raise Concerns That Constitutional Principle That Undocumented Individuals Are “Persons” Will Be Left Undefended

Washington, D.C. —  Today, a coalition led by the Lawyers’ Committee for Civil Rights Under Law, Democracy Forward, and the County of Santa Clara filed a motion to intervene in pending litigation brought by the State of Alabama which is challenging the U.S. Census Bureau’s long-standing practice of counting all people, regardless of immigration status, in the United States Census.  The coalition seeks to intervene to defend the Constitutional principle that undocumented individuals are “persons” who must be counted.

The State of Alabama, Alabama Attorney General Steve Marshall, and Congressman Mo Brooks (R-AL) brought the lawsuit against the Census Bureau to block its ‘Residence Rule,’ which requires the Bureau to count all residents, including undocumented immigrants, in determining the population of states in the 2020 Census.  The Census count is used as the basis to distribute more than $675 billion annually in federal funding, as well as political representation in the House of Representatives and Electoral College.

The Trump administration’s hostility towards immigrants, including its March 2018 announcement that the 2020 decennial census will include a citizenship question, raises concerns that the Justice Department will fail to fully defend the important constitutional principle that undocumented individuals are “persons” who must be counted in the Census.  Local government coalition members must, therefore, step in to protect this fundamental constitutional principle and the funds they rely on to provide essential services to their residents.

The Constitution’s mandate to count all “persons,” implemented by the ‘Residence Rule’ that Alabama challenges in this case, requires that all residents, regardless of citizenship or immigration status, must be counted in the 2020 Census. This lawsuit comes against the backdrop of the Trump administration’s ongoing aggressive approach to immigration enforcement, including the recent introduction of a “zero-tolerance” policy calling for the prosecution of all individuals who illegally enter the United States.

“People are people, regardless of their immigration status,” said County of Santa Clara Board of Supervisors President Joe Simitian.  “We have to push back against efforts to deprive Santa Clara County and its residents of the state and federal funding to which we are entitled and political representation commensurate with our population—our entire population.”

“The constitutional mandate to count ‘the whole number of persons in each state’ has a long and settled tradition of including all persons, regardless of their citizenship or immigration status,” said Kristen Clarke, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law. “Everyone in the United States relies on a full count of all persons for full political representation and millions of dollars in federal funding for public health, education, transportation and neighborhood improvements. We will defend the ‘Residence Rule’ to ensure that all people are counted in the upcoming census.”

“Excluding local residents from the census count on the grounds of immigration status violates a core principle of American democracy,” said Democracy Forward Executive Director Anne Harkavy. “Through its own actions, the Trump administration has made clear that we can’t rely on it to represent the public’s interest in this case.”

“In San Jose, everyone counts,” said Mayor Sam Liccardo. “These continued, politically motivated efforts to fundamentally alter the way we conduct the Census threaten the values held dear by millions of Americans.”

“I have no confidence that the current administration intends to properly defend this lawsuit. So, we must intervene, for the sake of our neighbors and our democracy,” said King County Executive Dow Constantine. “The Constitution clearly states that all persons shall be counted who reside within and call the United States home. It is our hope that this action will help our efforts toward an accurate 2020 Census.”

There is no basis to exclude persons from the Census based on immigration status. The Fourteenth Amendment makes clear that the enumeration must include “the whole number of persons in each state.”  The Constitution’s Census Clause and Fourteenth Amendment do not distinguish between citizens and non-citizens, or documented and undocumented immigrants. Nonetheless, Alabama seeks to exclude undocumented individuals from the Census count.

The federal government has made clear, through its past statements and actions, that it cannot be trusted to adequately protect the interests of all community members, including undocumented persons, in connection with the Census. For example:

  • In a May 2018 congressional hearing on the 2020 Census, Acting Assistant Attorney General for Civil Rights John Gore stated that DOJ does not have a position on whether the Census count includes undocumented persons; and
  • In a move that would lead to a Census undercount, the Trump administration is seeking to add an untested question to the 2020 Census requiring that all United States residents disclose whether they are citizens.

The motion was filed in the United States District Court for the Northern District of Alabama on behalf of the County of Santa Clara, CA, King County, WA, and San José, CA. Each jurisdiction is home to a collection of vibrant immigrant communities, including many undocumented community members.  As a result, Alabama’s desired change to the Census count will cause these local governments to lose federal funding for various services including vital public health and safety services.

King County is represented by Democracy Forward, the County of Santa Clara is represented by the Office of the County Counsel and the Law Office of Jonathan Weissglass, and the City of San Jose is represented by Lawyers’ Committee for Civil Rights Under Law and Debevoise & Plimpton.

See full motion to intervene here.

About the Lawyers’ Committee for Civil Rights Under Law 

The Lawyers Committee for Civil Rights Under Law, a nonpartisan, nonprofit organization, was formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination.  Now in its 55th year, the Lawyers’ Committee is continuing its quest to “Move America Toward Justice.” The principal mission of the Lawyers’ Committee for Civil Rights Under Law is to secure, through the rule of law, equal justice for all, particularly in the areas of criminal justice, fair housing and community development, economic justice, educational opportunities, and voting rights. For more information, please visit


Derrick Robinson | | 202-662-8713