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(SAN FRANCISCO) – The Trump administration’s attempt to exclude undocumented immigrants from the nation’s Congressional apportionment process is unconstitutional according to a lawsuit filed this week in the United States District Court for the Northern District of California by the city of San Jose; the Black Alliance for Just Immigration (BAJI); King County, Washington; Arlington County, Virginia; and individual plaintiffs Sam Liccardo, the mayor of San Jose; Zerihoun Yilma and Lovette Kargbo-Thompson. The plaintiffs are represented by Lawyers’ Committee for Civil Rights Under Law, Public Counsel and Latham & Watkins LLP.  

The suit is in response to the Executive Memorandum issued by President Trump on July 21, 2020, which directed the secretary of Commerce Department to statistically manipulate the completed 2020 census count to exclude undocumented immigrants living in the country from being considered for purposes of calculating the number of representatives to Congress from the various states. The President’s order marks a dramatic departure from the plain language of the Constitution that all persons who reside in the United States must be counted for purposes of congressional apportionment, the lawsuit says.  Every administration – both Republican and Democrat – has implemented the Constitution in this manner. 

The complaint alleges that the president’s memorandum violates the Census Act and is unconstitutional under the Enumeration Clause, the “one person-one vote” doctrine, and the Equal Protection Clause’s prohibition of intentional discrimination against persons of color.

“The president’s apportionment order is unconstitutional and violates decades of practice by administrations, both Republican and Democratic,” said Kristen Clarke, co-director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law. “It discriminates against people based on race, ethnicity, and national origin, and subverts the Constitution. This latest move by the administration is part of an ongoing effort to silence and erase people of color during one of the most consequential moments in the democratic process.”

“The President’s order is an illegal attempt to deny that millions of Californians are ‘persons’ under the United States Constitution,” said Sam Liccardo, mayor of San Jose, California.  “The city of San Jose is proud to be the home of a large and vibrant immigrant population, including many who are undocumented, and I want to assure the residents that my office will work hard to protect their rights and their personhood.”

“The Administration’s new policy is another attempt to deny Black people their political power,” says Nana Gyamfi, executive director of BAJI. “The way our country has approached counting the population for the purpose of legislative representation has had a long history of denying our humanity and access to resources and representation. Under the Three-Fifths Compromise, enslaved Black people were only considered 3/5 of a person. And now, while the Three-Fifths Compromise is no longer the law, the Administration is trying to count Black undocumented immigrants as 0/5 of a person. The Administration has already unsuccessfully tried to undermine our political power through the citizenship question for the 2020 Census. We successfully challenged the legality of the citizenship question and we will do so again here because the Constitution and law is on our side.”

“The Constitution requires an accurate count of our population every 10 years. The information from the Census is a crucial record that helps determine the Federal resources we receive over the next decade and is used for planning and research,” stated Arlington County Board Chair Libby Garvey. “We must have an accurate count of everyone living in Arlington and refuse to allow this unlawful effort to scare people and suppress the Census count of our immigrant community. Whether documented or undocumented, our immigrant residents are valued members of our community. We are determined that they will be accurately counted.”

Read the lawsuit here.


About the Lawyers’ Committee for Civil Rights Under Law – The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), 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. 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 voting rights, criminal justice, fair housing and community development, economic justice, educational opportunities, and hate crimes.  For more information, please visit:

About the Black Alliance for Justice Immigration – The Black Alliance for Just Immigration is the nation’s largest Black-led organization championing racial justice and immigrant rights. Find out more at