December was all about the apportionment numbers when it comes to redistricting news. Let’s get you up-to-date.
White House Memo on Excluding “Aliens” from the Official Apportionment Count
The U.S. Supreme Court heard oral argument in Trump v. New York on Nov. 30 pursuant to an expedited schedule given that the U.S. Census Bureau had a Dec 31 statutory deadline to report the official state population counts to be used for apportioning U.S. House seats among the states. Just before Christmas, the court released a per curiam opinion declining to decide the issue on technical grounds. The issue being whether a White House memorandum ordering the Census Bureau to modify the population count to exclude undocumented immigrants was permissible. The precise text of the memorandum is as follows:
In preparing his report to the President under section 141(b) of title 13, United States Code, the [Commerce] Secretary shall take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to . . . exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch.
The U.S. Supreme Court’s Decision
The crux of the court’s decision was that the issue was not concrete enough to allow for any judicial decision. Specifically, since there were no apportionment numbers available at the time of the oral argument and there was no certainty how the Bureau would implement the memorandum, especially since the wording of the memo gave considerable latitude to officials regarding how and to what extent it would exclude “aliens” from the apportionment count. Presumably, the Bureau would have to use its discretion to remove different categories of aliens from the count while abiding by existing legal and practical constraints.
During oral argument, the government repeatedly confirmed that it did not know at the time how much of the alien population it would be able to identify for removal. Given these procedural uncertainties, the court concluded that there was no action as of yet on which to make a legal decision. Thus, “judicial resolution of this dispute is premature.”
Census Bureau’s Late Delivery of Apportionment Count
Since the court’s decision the Census Bureau quietly missed its Dec. 31 statutory deadline for delivering apportionment numbers and now estimates that those numbers will be released during the second week of February. The delay was at least in part due to “processing anomalies.” Delayed apportionment counts most certainly mean delayed redistricting data to the states. Data used for redistricting is much more detailed than the state population totals used for apportionment. An official from the Bureau on a conference call with state officials in December confirmed that the Bureau was focusing all of its resources on producing the apportionment data, creating more uncertainty as to when detailed redistricting data would be released.
