State Attorney General Letitia James on Monday said the Constitution is "crystal clear" that everyone must be counted, and expressed confidence that a lawsuit by a New York-led coalition would overturn President Donald Trump's executive order excluding people here illegally from the census' apportionment phase.
Apportionment determines how many members states get in the U.S. House of Representatives.
"I am confident that we will prevail," James said during a conference call with reporters after oral arguments Monday on the case before the U.S. Supreme Court. "The United States Constitution [regarding the] census is crystal clear: Every person residing in the United States on Census Day, April 1, regardless of legal status, must be counted."
James said Trump's order was the latest in a "long list of anti-immigrant action and statements" and merely an attempt to "strip immigrant-rich states like New York out of representation."
"The U.S. Constitution clearly states that every single resident must be counted in the census," said a statement from LatinoJustice PRLDEF, a nonprofit group which filed an amicus brief in support of New York. "But instead of counting all Latinos and other undocumented immigrants and enabling them to have an equal voice, President Donald J. Trump is intentionally targeting and seeking to disenfranchise immigrant communities of color."
Dale Ho, director of the American Civil Liberties Union's Voting Rights Project, added on the conference call, that "the legal mandate since the founding [of the nation] is clear: every person in the United States is counted in the census and is represented in Congress. It doesn't matter if you're an adult or a child, if you're a citizen or an immigrant, if you have lawful status or if you're undocumented. That has been a 230-year consistent, unbroken practice throughout our nation's history." Ho added: "The Trump Administration is proposing a radical break from that."
James noted the exception had been the "compromise" decision to count enslaved people as three-fifths of a person for census purposes. But that was overturned by the 14th Amendment following the end of the Civil War and abolition of slavery.
Asked whether the case is moot if, as census officials have indicated to various news media outlets, they cannot provide the apportionment counts until late January, after Trump is no longer in office, James said the case should be "decided on its merits," citing a "substantial risk to injury" to states, in terms of lost representation and some federal funds.
Ho said during the oral arguments before the Supreme Court that the "government didn't walk away from that," referencing the Dec. 31 statutory deadline for the count to be delivered to the president. He said even if the Census Bureau's professional experts say the count can't be delivered until the end of January, "I don't think there's any guarantee that the administration wouldn't try to ram something through."