Colorado joins lawsuit to ensure all are counted in census for determining number of congressional seats among states

Governor Polis, Attorney General Weiser fight for Colorado’s fair share of House seats, federal funds

July, 24, 2020 (DENVER, Colo.)— The State of Colorado today joined a large coalition of states, cities, and counties in filing a lawsuit against the federal government for attempting to, once again, illegally leave millions out of the apportionment base that establishes the number of members in the U.S. House of Representatives that each state receives. The lawsuit seeks to stop the administration from politicizing the census and violating basic constitutional commands, and instead aims to ensure the federal government counts the “whole number of persons” residing in the country for apportionment, as the U.S. Constitution clearly requires.

“The Census is a fundamental tool to democracy and is too important for partisanship. Coloradans can be confident that the people’s lawyer, Phil Weiser, is fighting for us. An accurate count of the Census, and proper apportionment pursuant to the Constitution, ensures Colorado will receive our share of critical federal funding for our schools, infrastructure, and other important projects,” said Gov. Jared Polis.

“The U.S. Constitution clearly says that the States’ representation in Congress is based on ‘counting the whole number of persons in each state’. The administration’s attempt to exclude undocumented immigrants from being counted in the 2020 census aims to intimidate people from participating in the census and to dilute the political power and federal funding of states like Colorado that have significant immigrant populations. We are fighting this unconstitutional policy to make sure Colorado gets its fair share of congressional seats and federal funding after the 2020 census,” said Attorney General Phil Weiser, who last year was part of a lawsuit where the U.S. Supreme Court prohibited the administration from adding a citizenship question to the census.

The Fourteenth Amendment clearly states that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State…” More than 200 years of history, practice, and judicial and administrative precedents have since established that the apportionment of representatives must be based on all persons living in each state, regardless of their citizenship or immigration status.

In the lawsuit filed against the U.S. Department of Commerce, the U.S. Census Bureau, Commerce Secretary Wilbur Ross, and Census Director Steven Dillingham, and others, argues that apportionment based on a population count that unlawfully excludes undocumented immigrants will:

  • Lead to the loss of congressional seats and presidential electors in the Electoral College,
  • Skew the division of electoral districts within jurisdictions by impairing state and local redistricting efforts that rely on the census count,
  • Reduce federal funds to state and local jurisdictions by deterring immigrants from responding to the decennial census that is currently underway, and
  • Degrade the quality of census data that States and local jurisdictions rely on to perform critical governmental functions.

The coalition specifically argues that the exclusion of undocumented immigrants from the apportionment base violates the Fourteenth Amendment; the Due Process Clause of the Fifth Amendment; the Tenth Amendment; and the Administrative Procedure Act, by being both contrary to law and arbitrary and capricious. Additionally, this exclusion conflicts with long-recognized Supreme Court precedent.

The coalition filing today’s lawsuit are the attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia. The attorneys general are joined by the cities of Central Falls, RI; Chicago, IL; Columbus, OH; New York, NY; Philadelphia, PA; Phoenix, AZ; Pittsburgh, PA; Providence, RI; Seattle, WA; and the city and county of San Francisco. Additionally, Cameron, El Paso, and Hidalgo Counties in Texas and Monterey County in California have joined the lawsuit.

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Media Contact:
Lawrence Pacheco
Director of Communications
(720) 508-6553 office | (720) 245-4689 cell
Lawrence.pacheco@coag.gov