Law & Principles

Trump directive on illegal aliens could benefit Oklahoma

July 28, 2020

Mike Brake

If a newly announced policy from the Trump administration that would ban counting illegal aliens for the purpose of congressional apportionment remains in force, Oklahoma could be “on the cusp” of regaining the sixth congressional seat it lost after the 2000 Census, an official who tracks Census results says.

“Probably not this time, but in the next decade Oklahoma is one of a few states that could stand to gain that seat back if illegals are no longer counted in the reapportionment process,” said Adam Kincaid of the National Republican Redistricting Trust. “You may be on the cusp.”

Oklahoma’s gain would have to be another state’s loss, which would result from that state no longer being able to count illegal immigrants in the total population enumeration that has long been the basis of the apportionment of congressional seats.

On July 21, President Trump issued a memo to his Secretary of Commerce directing that department to exclude illegal aliens counted in the 2020 Census from the apportionment data. In the future, only citizens and legal resident aliens would be counted for that purpose. He said his directive “reflects a better understanding of the Constitution and is consistent with the principles of our representative democracy.”

Absent the directive, millions of illegal aliens who answered the Census would have been factored into the totals used by state legislatures to redraw congressional and even local legislative and city and county body boundaries. So those millions would have a direct impact on who represents Americans, even when they cannot vote.

“Just as we do not give political power to people who are here temporarily, we should not give political power to people who should not be here at all,” Trump said.

A set of talking points issued by the White House noted that including illegal aliens in the reapportionment formula would reward states and other local jurisdictions that have declared themselves as sanctuary localities by giving them additional congressional representation. For example, that practice could give one state, with some 2.2 million illegal aliens, two or three additional House seats at the expense of other states that enforce immigration laws.

Kincaid said predictions of which states would gain or lose congressional seats (and resulting electoral votes) vary considerably under differing models where illegals are counted and where they are not. He also stressed that other factors such as overall population growth play a role.

For example, under the old model where illegals are counted, California is likely to lose one seat after the 2020 Census. If the Trump directive remains in force, it would lose four. Texas would gain three seats with illegals tallied, and just one without. Some states on the cusp like Oklahoma could gain a seat if illegals are excluded from consideration; those include Missouri, Colorado, and North Carolina in 2020 and could include Oklahoma by the next Census.

Predictably, groups advocating for illegals blasted the Trump decision, and Kincaid said at least five lawsuits have already been filed seeking to overturn it. The nonprofit organization Generation Citizen said the decision is “unconstitutional and ignores the U. S. Supreme Court’s decision earlier this year to reject the Administration’s effort to add a citizenship question to the Census. The practical implication of this directive is that it could deter participation and is being used as a scare tactic.”

Generation Citizen, which offers training and support to bring “action civics” into Oklahoma classrooms, did not justify why non-citizens should be counted in the computation of how many people fall in a single congressional district, how many districts each state has, and the resulting number of electoral votes the states cast for president.

Oklahoma’s redistricting process has been in the planning stages for some time. The state Senate has created a redistricting committee, and it was recently announced that the committee will hold public hearings statewide, with citizens invited to submit proposed maps. The House redistricting committee is also planning statewide hearings. Each chamber will draw its own redistricting maps, and new congressional maps will need to be approved by both chambers and ratified by Gov. Kevin Stitt.

An initiative petition sponsored by a group calling itself People Not Politicians was withdrawn due to difficulties getting signatures. It would have created a nine-member citizens’ commission to handle all redistricting decisions, rather than the Legislature.

Congressional redistricting in recent decades has been less contentious than it once was. In 1980, Democrats in control of both houses of the Legislature drew a bizarre Fifth Congressional District that wound snake-like from north Oklahoma City to the Kansas border, taking in most Republican-leaning communities. Since then congressional districts drawn by Republican legislatures have been more geographically contiguous, but after the loss of the Sixth District in 2000 it was necessary to draw an enormous Third District that takes in almost half of the state’s counties.

The loss of the Sixth Congressional district following the 2000 Census was seen at the time as a result of population losses from the oil bust of the 1980s and early 1990s, but it may also have been the result of an influx of illegals into border states like Texas, which gained eight seats between 1980 and 2000.

Kincaid said the Trump directive will have to survive various court challenges and the results of the upcoming election. If Democrats are victorious they would likely reinstate the system of counting illegals for congressional apportionment.