Legal groups intervene in Republican’s lawsuit over counting undocumented in census

Rep. Mo Brooks is suing the Census Bureau for including undocumented immigrants in the decennial census. Outside groups don't trust the Justice Department to fully defend them in court.

A coalition led by the Lawyers’ Committee for Civil Rights Under Law and Democracy Forward filed a motion on Tuesday to intervene in a lawsuit brought by Rep. Mo Brooks (R-AL), who decided to sue the U.S. Bureau of the Census for counting undocumented immigrants in the decennial census.

The legal groups decided to get involved because they didn’t trust the Department of Justice (DOJ) — led by Attorney General Jeff Sessions, known for his hardline immigration policies — to defend undocumented immigrants in court.

“We are committed to ensuring a full and accurate census count in 2020 and already we have seen extensive efforts to obstruct and undermine that critical goal,” said Kristen Clarke, President and Executive Director of Lawyers’ Committee for Civil Rights Under Law. “At the end of the day, we have little confidence that this administration will fully fight Alabama in this case.”

Clarke told ThinkProgress Acting Assistant Attorney General for Civil Rights John Gore’s comments during a May congressional hearing deeply disturbed her, as he testified that the DOJ does not have a position on whether the Census count includes undocumented persons.


“Someone in his role should clearly articulate the position of the government and one that aligns with the constitution and the way we’ve carried out the census count in our country for decades” said Clarke. “We have every reason to believe that the Justice Department will not give a full-throated defense in this case and we are not leaving these issues to chance.”

ThinkProgress reached out to the DOJ for comment but they did not immediately respond.

The 2020 census will already include a citizenship question, which could dissuade many families — either undocumented, of mixed immigration status, or just groups who are afraid under this administration — from participating in the census altogether. Experts are concerned this could lead to serious under-counting, exacerbating existing barriers to accurately counting marginalized populations.

The DOJ pushed to insert the question, arguing it helped enforce Section 2 of the Voting Rights Act, which protects against racial or language discrimination in elections. But voting rights groups pushed back against this claim, saying the annual American Community Survey, which includes a citizenship question, provides enough data for Voting Rights Act enforcement.

Brooks and Alabama Attorney General Steve Marshall filed a lawsuit in May over the federal government’s “Residence Rule,” which requires officials to count undocumented immigrants when determining state populations in the decennial census. Republicans alleged in the lawsuit that this would cost Alabama one seat in the House of Representatives and a seat in the Electoral College.

“Congressional seats should be apportioned based on the population of American citizens, not illegal aliens,” Brooks said in a statement. “After all, this is America, not the United Nations.”


The lawsuit filed in the U.S. District Court of Northern Alabama maintains that the  “Residence Rule” violates the 14th Amendment, but legal groups refute this as the amendment reads “the whole number of persons in each state” must be counted.

Legal groups intervened on behalf of San José, CA, the County of Santa Clara, CA and King County, WA. These communities are home to large populations of immigrants, including undocumented persons, and are at risk of losing federal dollars should these communities not be counted in the decennial census.

In addition to being the bedrock to our democracy — as it’s used to decide congressional seats and electors, Census Bureau data is critical to how state and local governments take care of low-income residents. Federal programs like food assistance, Section 8 housing vouchers, and Medicaid use it in whole or in part to distribute funds.

“You can draw a line between the number of people under-counted — no matter population characteristics — and the dollar flow to states,” Andrew Reamer, research professor and author of a series of reports titled Counting for Dollars 2020, told ThinkProgress in March. “Medicaid is by far the biggest program affected by decennial census.”

A lot of public dollars are on the line should the courts agree with Brooks that counting undocumented immigrants in the decennial census is unconstitutional. It also signals to these communities that they, quite literally, don’t count.

This post has been updated to include that ThinkProgress reached out to the DOJ for comment.