CHARLESTON – West Virginia Attorney General J.B. McCuskey has joined the AGs of three other states in filing a lawsuit that challenges the Biden administration decision to count illegal aliens when determining the number of congressional seats and electoral votes that each state receives.
“Counting illegal aliens in the census takes voting power from some Americans and gives it to others,” the complaint states.
Louisiana AG Liz Murrill and Kansas AG Kris Kobach partnered on the lawsuit, which also includes McCuskey and Ohio AG Dave Yost. The complaint was filed January 19 in federal court in Lafayette, Louisiana, just one day before Biden left the Oval Office.
McCuskey said the issue simply is a matter of common sense.
“It’s about having the proper representation in Congress and in our electoral votes, both of which should be based on the population that is legally in the country,” McCuskey told The West Virginia Record. “States like West Virginia are losing representation because other states are using illegal immigrants to wrongly inflate their census tallies.
“That’s why West Virginia, Louisiana, Kansas and Ohio are suing to put a stop to this.”
Murrill said “the Constitution bars that approach.”
“And regrettably, it has led to states losing seats and votes to other states with higher numbers of illegal aliens,” she said. “We shouldn't lose representation in Congress due to the presence of illegal aliens harbored by other states. Counting illegal aliens in the census to determine Congressional seats and electoral votes Is unlawful. We have sued to stop it.”
Kobach agreed.
“It is a national embarrassment that the most powerful country in the world does not know how many citizens it has and has not known for decades,” Kobach said. “Because the federal government has been counting illegal aliens in the census, California has many more congressional seats and electoral votes than it should.
“This lawsuit will restore the Founding Fathers’ original vision of the United States.”
According to the lawsuit, the U.S. Census Bureau’s existing residence rule unlawfully requires counting illegal aliens and nonimmigrant aliens in the apportionment base used for assigning seats in the U.S. House of Representatives and the Electoral College.
Ohio and West Virginia each lost a congressional seat and an electoral vote in the 2020 Census, according to the complaint. The suit also says Kansas and Louisiana likely will lose congressional seats and electoral votes in the 2030 Census because of the rule.
During the 2000, 2010, and 2020 censuses, the rule resulted in redistribution of congressional seats from states with fewer aliens to states with higher alien populations.
In 2022, for example, Pew Research said 56 percent of the nation’s 11.7 million aliens lived in just six states: California, Texas, Florida, New York, New Jersey and Illinois. U.S. Department of Homeland Security estimates revealed similar numbers.
The lawsuit says Texas gained a congressional seat and an electoral vote, and it says California kept a congressional seat and electoral vote “that it would have otherwise lost.”
According to the AG’s complaint, the rule also deprives the plaintiff states of federal funding that is proportioned on the basis of population, violates the Fourteenth Amendment, and is inconsistent with the constitutional requirement of near-equal representation.
In February 2018, the U.S. Census Bureau created the Residence Rule for the 2020 census that said foreign nationals living in the U.S. are counted in the census and allocated to the state where their “usual residence” is located. The lawsuit notes how that was regardless of whether those foreign nationals are lawfully present in the U.S. and “regardless of whether any visa they may possess is temporary.”
The AGs say Biden’s Commerce Secretary Gina Raimonda as well as the Census Bureau and Director Robert Santos chose to include “illegal aliens and aliens holding temporary visas (‘nonimmigrant aliens’) in the census figures used for determining the apportionment of the House of Representatives and Electoral College votes.”
The complaint says this Residence Rule violates the Fourteenth Amendment's equal representation principle by "robbing the people of the plaintiff states of their rightful share of political representation, while systematically redistributing political power to states with high numbers of illegal aliens and nonimmigrant aliens” and “necessitating an unconstitutional distribution of Electoral College votes among the states.”
“The Residence Rule also breaches the federal government’s constitutional obligation to conduct an ‘actual enumeration’ of the number of ‘persons in each state,’” the complaint states. "The phrase ‘persons in each state’ was understood at both the Founding and in the Reconstruction era to be restricted to United States citizens and permanent resident aliens who had been lawfully admitted to the body politic constituted by the Constitution. …
“Aliens who are unlawfully or temporarily present in the United States did not qualify because they are not entitled to political representation. It has long been understood that foreign diplomats temporarily in the U.S. also did not qualify. …
“But, in any case, the Fourteenth Amendment separately requires that illegal aliens who have been denied the right to vote be excluded from state apportionment. Thus, the actual enumeration of the population of the states cannot include such aliens. Only U.S. citizens and lawful permanent residents (‘LPRs,’ also known as ‘green card holders’) can be included.”