Trump pushes to exclude undocumented immigrants when congressional seats are divvied up next year

President Donald Trump opened a new front Tuesday in his effort to keep undocumented immigrants from being counted when lawmakers redraw congressional districts next year, a move that could cost Texas several seats in Congress if it succeeds.

Trump attempted last year to include a citizenship question on the 2020 census, but was shot down by the courts. On Tuesday, he signed a memorandum directing Secretary of Commerce Wilbur Ross to exclude undocumented immigrants who might be included in the census count from the “apportionment base,” or the base population that’s used to divide up seats in Congress.

The order, which will surely be challenged in court, is Trump's latest effort to differentiate between citizens and noncitizens when states redraw the boundaries of political districts each decade to account for growth. Recent estimates indicate the size of the undocumented population in Texas has reached nearly 1.8 million. Excluding those residents from population counts to draw up congressional districts would likely lead to a drastic realignment of representation and power throughout the state.

The U.S. Constitution mandates that representation in Congress be divided among states based on a count every 10 years of every person residing in the country. But the Constitution, Trump wrote, does not define “which persons must be included in the apportionment base.”

“Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government,” the memo reads. “Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.”

It’s unclear how many seats in Congress Texas might stand to lose if the order holds up in court. Texas now has 36 seats in the U.S. House of Representatives, in districts which are supposed to be drawn to nearly equal population. The state is projected to gain several more seats in the next redistricting round based on population growth.

But the president’s efforts to exclude undocumented immigrants is likely to be tied up in courts. Shortly after the memo was released, the American Civil Liberties Union — which fought the administration’s failed efforts to ask about citizenship on the 2020 census — described it as “patently unconstitutional.”

“The Constitution requires that everyone in the U.S. be counted in the census,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement. “President Trump can’t pick and choose. He tried to add a citizenship question to the census and lost in the Supreme Court. His latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We’ll see him in court, and win, again.”

Even if the Trump administration won in court, it’s unclear what data lawmakers would use to figure out how to exclude undocumented residents from the census totals.

The Trump administration was barred from including a citizenship question on the 2020 census after the U.S. Supreme Court found that the administration had provided a “contrived” reason — to better enforce voting rights law — for obtaining the information.

The Census Bureau gathers citizenship estimates through other surveys but does not differentiate between noncitizens, including legal permanent residents and visa holders, and those without legal status to be in the country. Trump previously signed an executive order directing the government to use administrative records to compile citizenship information. As part of that effort, the bureau asked Texas last year to consider sharing parts of its driver’s license and ID database.

But that data has proven to be unreliable.

Last year, Texas’ effort to scour its voter rolls for noncitizens was derailed by the secretary of state’s reliance on that dataset. The agency used it to question the citizenship status of nearly 100,000 registered voters, only to discover later that tens of thousands of them were naturalized citizens.

In Texas, immigrants who are not citizens but are residing in the country with legal status can obtain driver’s licenses and IDs, which are valid for several years. They are not required to update the state if they become naturalized citizens before they have to renew those documents.

In October, the Texas Department of Public Safety indicated it had not taken any action on the bureau’s request for driver’s license data. A spokesperson did not immediately respond to a request for comment Tuesday on whether that had changed.

Evidence during last year’s litigation over the citizenship question uncovered a 2015 analysis of the Texas House that demonstrated how using the population of citizens who are voting age, as opposed to total population, would lead to a “radical redrawing” of House districts and prove advantageous to Republicans and white Texans. The case study detailed how the Hispanic population used for redrawing would drop in traditionally Democratic districts, which would then have to grow geographically to meet constitutional population requirements in redistricting.

Texas House leaders have previously indicated to The Texas Tribune they have no plans to alter the way Texas redraws political districts even if the Legislature obtained more detailed data on citizenship.

"Bottom line, the law for the Texas House and the Senate — and frankly the courts and the State Board of Education — requires it be done by total population, as does the U.S. Constitution with regard to congressional seats,” said state Rep. Phil King, a Republican from Weatherford who chairs the House Redistricting Committee.

Disclosure: The Texas secretary of state's office has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.