Missouri Attorney General Catherine Hanaway has filed a lawsuit seeking to require the Census Bureau to “redo” the $14 billion 2020 Census to exclude the persons she doesn’t consider persons. The U.S. Constitution requires that every 10 years “the whole number of persons in each state” be counted for the purpose of apportioning representatives.
Hanaway’s press release brags that her “first-in-the-nation suit” is “the most significant election lawsuit in a generation.” Indeed, her attempt to dilute the voting power of those in states with large minority populations (which tend to be blue, but also include Texas and Florida) is groundbreaking in its disregard of constitutional text and history. Since the first census in 1790, we have always counted non-citizens.
At both the founding of the nation and the adoption of the 14th Amendment, women like myself and Hanaway did not enjoy the rights of citizenship. But we were counted in the census anyway.
To this day, we do not let children vote, but we still count them. Because children are part of the population. The point of the census is to count the population.
Neither authorized nor unauthorized migrants can vote, but we need to know how many of them live here so we can allocate representation and resources.
There is one group of people who were not always counted as whole persons for purposes of apportioning representation. Hanaway’s attempt to evade that history is chilling. Her lawsuit correctly notes that the 14th Amendment states: “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”
Then her filing goes on to assert: “this same rule — expressed with materially identical text — also governed when the Constitution was first ratified.”
“Materially identical” leaves me at a loss for printable words.
When the Constitution was ratified, the text laid out that enslaved persons would only count as three fifths of a person for apportionment purposes. The 14th Amendment invalidated that horrifically racist provision. It got rid of the rule that only free persons and indentured servants be fully counted. This is the opposite of “identical.” But Hanaway and five other lawyers signed their names to this sociopathically revisionist nonsense.
Hanaway, presumably not wanting to beat up on the founders or the framers of the 14th Amendment, tries to re-write history to say we only started counting non-citizens in the census during the Carter administration.
Her claims are also incompatible with the constitution’s text. There is a word the framers used instead of “person” when they intended to limit something to citizens. That word is “citizen.” Courts have long recognized that the word “person,” for example as used in the Fifth Amendment’s guarantees of due process, grants rights to undocumented persons.
It’s good for the census to get a full count of who lives in the country, even if they are visa holders or undocumented. I also think it’s good to apportion representation and federal funding accordingly. You can disagree with me on this as a policy matter. But if you do, your beef is with the framers, so your only remedy is to amend the U.S. Constitution.
Constitutional text and history doesn’t get more explicit than this.
The requirements of the constitution aside, counting everyone in the census is also the right thing to do for moral and contractual reasons. Immigrants are persons who live in our states. Even those without legal status came at our invitation.
This country wanted undocumented workers’ low-paid labor. We gave them tax-ID numbers so they could pay taxes. We encouraged them to build lives and families here for decades. We built industries and got all our food on their backs. But we gave them no path to citizenship.
Hanaway filed her lawsuit at a moment when people are being grabbed off the street in Minnesota and across the country by masked ICE agents who have been detaining anybody who looks non-white. Hanaway’s suit was filed after multiple people trying to document or stop this have been shot by ICE agents, two of them fatally.
Hanaway’s lawsuit is ugly and unfounded. Even in these dark times for the rule of law and basic human decency, this gambit should fail and she should be judged for the attempt.
- Bridgette Dunlap is a lawyer and writer living in St. Louis County. She has written for Rolling Stone, The Atlantic, ReWire, Ms. and Slate. Bridgette wants Missouri to be a great place for her kids, and all kids, to grow up.
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