National Review, July 31, 2020
The Trump administration recently moved to exclude illegal immigrants from the census count used for apportioning House seats and Electoral College votes by state. The order was met with the kind of breathless response we have come to expect from the media in the Trump era. Wednesday's hearing on the topic in the House of Representatives gave politicians another opportunity to posture.
As is too often the case, the facts have been obscured by the outrage. Through both apportionment across states and redistricting within them, the presence of noncitizens does affect political representation — often to the detriment of conservatives.
In theory, including illegals in the apportionment process redistributes House seats from states made up primarily of American citizens to states where large numbers of illegal immigrants live. In fact, including any noncitizens (legal or illegal) in the apportionment of House seats can have the effect of reducing the representation of the people who can actually vote — namely, citizens.
How much effect will it have in reality? While the number of illegal immigrants in the country is a matter of some debate, based on past patterns, around 10 million will likely respond to the census this year. That works out to about 3 percent of the total population in the 2020 census, which means that the impact of illegal immigrants will not be enormous. That said, it can be significant in some circumstances.
Seats in the House are apportioned by first giving each state one seat and then distributing the remaining 385 seats using the method of equal proportions, which is really just a fancy way to determine how fractions are rounded. Every ten years there are states on the threshold of retaining, receiving, or losing a seat. Since illegal immigrants are not equally distributed throughout the country, even small changes can be enough to redistribute a seat.
In December of last year, my colleague Karen Zeigler and I estimated the likely impact of immigration on the 2020 census. Using the method of equal proportions, we found that the inclusion of illegals will redistribute three seats. Ohio, Alabama, and Minnesota each lose a seat to California, New York, and Texas. For these six states, illegal immigration matters a great deal.
Consider Alabama, which currently has seven seats. It will lose one-seventh of its current representation because of illegal immigration. But the state is not losing this seat because its population declined. Based on the population estimate released for 2019 from the Census Bureau, Alabama grew by well over 100,000 people since 2010. Put simply, Alabama will lose representation in the House because other states have attracted more illegal aliens.
And then there are the children. Illegal immigrants have about 4.5 million U.S.-born minor children. In our analysis last December, we found that their inclusion will redistribute another two seats in 2020: Michigan and West Virginia will each lose a seat, while Texas and California each gain another seat. So illegal immigrants and their children will redistribute a total of five seats in the House of Representatives, and consequently five votes in the Electoral College.
Whether five seats is a lot depends on one's point of view. (For those keeping political score, that's a net shift of two seats from red states to blue states.) But apportionment is not the only issue. Drawing district lines within states also matters. There are a number of House districts in high-immigration areas of states where a very large fraction of the population are not citizens. In another analysis performed by myself and Karen Zeigler in February of this year, we reported the share of each congressional district who are not citizens.
Nationally we found that the 12 districts where noncitizens are most concentrated have roughly the same number of voting-age citizens as the nine districts with the highest citizen shares. (These figures exclude states with only one representative.) This means Americans in the high-citizen districts have only nine representatives in Congress while those in the lowest-citizenship districts have 12, even though the combined citizen populations are roughly equal. We cannot estimate illegal immigration by district, but nationally we know that roughly half of adult noncitizens are illegal. The remainder are permanent residents (green-card holders), who can become citizens if they choose, or are temporary visitors (mostly foreign students and guest workers). Whether green-card holders or the more than 2 million temporary visitors should be included in the apportionment population is another question worth asking.
Of course, districts vary in population partly because of the way seats are apportioned among the states, but we found that even within the same state, where district populations should be equal in size, immigration creates very significant differences in the number of citizens. For example, in the 33rd district of Texas, one-third of adults were not citizens in 2018. Texas-33 has 262,000 fewer voting-age citizens than Texas-21, where 6 percent are not citizens. In the 40th district of California, one-third of adults are also not citizens. The 40th has 233,000 fewer voting-age citizens than the 4th district, where 4 percent are not citizens. And it is not the case that population growth since 2010 caused these disparities; we found that the difference existed right after the 2010 census as well.
Because of these distortions it typically takes a lot fewer votes to win a House seat in a district with a large number of noncitizens. In the 13 House districts where more than one in four adults is not an American citizen, only 158,000 votes were cast on average in the 2018 midterms. In contrast, in the 46 districts where less than 2 percent of adults are not citizens, 263,000 votes were cast on average. This raises important questions about whether including noncitizens, legal or illegal, in the census violates the principle of one person, one vote.
An unavoidable effect of allowing large-scale legal immigration, and tolerating illegal immigration, is that Americans who live in areas composed largely of citizens lose political representation, while citizens who live in areas with large numbers of noncitizens gain political power.
There are partisan implications as well. In the 29 districts where at least one in five adults is not an American citizen, just one is represented by a Republican. In the 46 districts in which 98 percent of the population are American citizens, only five are represented by a Democrat. The reason for this should be obvious — noncitizens generally live around voters who are either immigrants or the adult sons and daughters of immigrants, and both groups tend to favor liberal policies on everything from spending to gun control. Therefore, they vote Democratic by a margin of roughly two to one. The voting power of immigrants and their adult children is amplified by the fact that many live in districts with relatively fewer eligible voters.
Realistically, the new policy of excluding illegal immigrants from apportionment will be tied up in the courts for a long time. The Framers never anticipated that there would be millions of people living in the country illegally, so whether illegals, tourists, foreign students, etc., must be counted among the whole number of persons in each state, per the Constitution, is unclear.
In any case, what the president has done is remind the country that immigration has important political consequences, and among them is the redistribution of political power, typically (although not exclusively) from conservative-leaning areas to liberal-leaning areas. At a time when we hear so much about the allegedly unfair and undemocratic advantage that Republicans hold in the Senate and the Electoral College, it is curious that we so rarely hear about how the immigration of noncitizens bolsters the Democratic party.
Although excluding illegals from apportionment is a defensible policy, ultimately the best way to avoid shifting political power is to enforce immigration laws and to also reduce legal immigration. If we choose not to do so, then we have to accept the impact on political representation that unavoidably comes with large-scale legal and illegal immigration.