Apportionment and The 14^th Amendment to the US Constitution

Political representation in the United States is based upon creating constituencies in proportion to geographical areas. The US House of Representatives, for example, delimits seats proportionally between states. The states, in turn, create districts in which House members run.

The decennial US Census has been used since 1790 as the basis for the United States representational form of government. As a result of growing population, the number of House members eventually quadrupled in size. In 1911, the number of Representatives was therefore fixed at 435.

In principle, districts are reapportioned every ten years after the decennial US Census. The number of districts apportioned to each state is defined by Congress, in accordance with Title 2 of US Code. (In practice, the two major political parties vie for control of reapportionment in order to maximize their respective constituency bases). During the 1960s, the Supreme Court ruled in a series of cases that congressional and state legislative districts must consist of relatively equal populations. Specifically, the Court's decision in Wesberry v. Sanders (1964) mandated that states apportion congressional district boundaries based strictly according to population.

Malapportionment can occur in the states as a result of failures to reapportion after significant population shifts within established districts. The resulting effect is that in a given House district, a House member can end up representing a much larger number of voters as compared with another district. The result is that citizens in the larger district have less direct access to, and influence upon, their elected Representative - thus diluting the principle of "one man, one vote", which has been upheld by the US Supreme Court.¹

Reapportionment based on non-citizens

As the number of US House seats is fixed at 435, reapportionment means that if a given state gains a House district, another state must lose one. If (illegal alien non-citizens are counted in the decennial Census upon which districts are apportioned, then states with larger illegal alien populations are likely to end up with more districts and therefore more representation in the House. This effectively dilutes the votes of citizens in states having relatively low populations of illegal aliens.

Similarly, congressional districts in those states with proportionately higher numbers of illegal aliens end up representing a large illegal alien, non-citizen, non-enfranchised population.

Illegal immigration has the same effect on presidential elections because the Electoral College is based on the size of congressional delegations. Indeed, the presence of all foreign-born persons in 2000 (naturalized citizens, non-citizens, and illegal aliens) redistributed 16 seats, up from 12 seats in 1990.⁵

For example, in Southern California, several districts contain less than half of the eligible voters found in districts in other states.² Indeed, 43 percent of the population in California's 31^st district is made up of non-citizens, while in the 34^th district, 38 percent are non-citizens. In Florida's 21^st district, 28 percent of the population is non-citizen, and in New York's 12^th district the number is 23 percent.⁵ The presence of illegal aliens in other states caused Indiana, Michigan, and Mississippi to each lose one seat in the House in 2000, while Montana failed to gain a seat it otherwise would have. In addition, the presence of all non-citizens in the Census redistributed a total of nine seats.⁵

Apportionment Solutions

Reapportionment weighted by the presence of illegal alien noncitizens is notably unfair to American citizens (both natural-born and naturalized), and clearly violates the principle of "one man, one vote".

The most obvious solution to this inequity is to stop counting noncitizens for purposes of apportionment. Article 1 Section 2 of the U.S. Constitution mandates that a census be conducted every 10 years expressly for the purpose of apportioning seats in the House of Representatives. Yet the Constitution does not specify the method of apportionment, or the composition of the population to be apportioned. Since the original 1790 apportionment, several different methods have been used, with the method of Equal Proportions being used since 1940.

Precedent is established in that Article I, Section 2 of the Constitution and the 14th Amendment both explicitly exclude non-taxed Indians from apportionment. In addition, the 14th Amendment, Section 2 acknowledges that some may be denied the right to vote. ²

Although the Supreme Court has to-date favored counting both citizens and noncitizens in reapportionment cases, this interpretation of the Constitution appears to clearly go against the Founders' intent. It should not require a Constitutional amendment to count only citizens for apportionment purposes, but in light of special interest groups pushing for open borders, perhaps an Amendment ultimately will be necessary.

"If, as I suggest, one person one vote protects a right uniquely held by citizens, it would be a dilution of that right to allow noncitizens to share therein."

Kozinski's opinion reinforces the concept that illegal aliens should not be count for apportionment purposes.

Given the number and power of special interest groups pressing for open borders, any attempt to change apportionment methodology would meet substantial resistance in Congress. Furthermore, the most serious obstacle to counting only citizens for apportionment purposes would remain: the inability to differentiate between citizens and noncitizens during the Census-taking process.

Ultimate Solution

The ultimate solution would be to enforce existing immigration laws both along the US perimeter and within in the interior, thus preventing additional illegal aliens from entering the US, while encouraging those already living here to return home to reunite with their families.

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