Posts Tagged ‘states; illegal immigration’

The text below was provided by the Immigration Reform Law Institute in their October 2009 State and Local Legislation Bulletin.

Illegal Aliens and What State and Municipal Government Can Do

Submitted by: Patrick J. Charles, IRLI Legal Analyst

In October the Census Bureau’s counting of non-citizens for the apportionment of seats in the House of Representatives received nationwide attention. What brought this issue to the forefront was an amendment by Senator David Vitter which would require the census to add a question about citizenship status to the 2010 short form, the most widely used census questionnaire. Whether the Vitter Amendment will pass is uncertain, but State and municipal governments need not wait for this issue to be settled before taking independent action.

Historically Congress has included non-transient aliens for apportionment of congressional seats, and required the States to divide their congressional districts into “equal proportions.” However, few state legislators are aware that the power to determine whether non-citizens should be part of the formula in apportioning State legislative voting districts is exclusively a decision of the State government. In other words, it is within each State’s legislative power to exclude non-citizens in determining voting districts for State legislature and municipality government seats. The legal principle supporting such legislation is the “one-person, one vote” standard the United States Supreme Court adopted in Reynolds v. Sims, 377 U.S. 533 (1964).

The “one-person, one-vote” principle allows State and local governments to prevent the dilution of citizen voting power. In fact, multiple federal courts have upheld State and municipal governments’ power to enact legislation insuring that their citizens’ voting power is not diluted by non-citizen participants. For instance, in Barnett v. City of Chicago, 141 F.3d 699, 704 (7th Cir. 1998) the court held, “The right to vote is one of the badges of citizenship. The dignity and very concept of citizenship are diluted if noncitizens are allowed to vote either directly or by the conferral of additional voting power on citizens believed to have a community of interest with the noncitizens[.]” Similarly, in Meza v. Galvin, 322 F. Supp. 2d 52, 60 (D. Mass. 2004), a court rejected a proposed apportionment plan where the challengers wished to take into account non-citizens. The court expressly held “because non-citizens by definition cannot vote, it makes little sense to consider them for purposes of determining whether the particular remedial scheme proffered by plaintiffs would adequately remedy the alleged vote dilution.”

Unless a state constitution mandates otherwise, State and municipal governments are not required to enact citizen-based apportionment legislation. In Burns v. Richardson, 384 U.S. 73, 92 (1966) the United States Supreme Court held that while States and municipal governments may exclude non-citizens in determining district apportionment, the “decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” This means that, in practical terms, a lawsuit challenging a State legislature’s decision to include non-citizens in determining their respective voting district lines would be difficult to win.

Nevertheless, State legislatures and municipal governments clearly can do their part in putting the power of the vote back into the hands of its citizens. Such legislation not only ensures that each citizen’s voting power is not diluted, but also sends a message to Congress that it should seek to remedy the Census Bureau’s counting of non-citizens for apportionment purposes. For further information on enacting citizen-based apportionment legislation please contact IRLI at (202) 232-5590 or by email at info@irli.org.