Citizenship and Congressional Districting
The Trump administration's effort to include a question about citizenship status on the 2020 federal census generated heated debate, but ultimately failed to survive a legal challenge. The president's commerce secretary, Wilbur Ross, contended that asking census respondents whether they were a U.S. citizen would assist in identifying the number of minority voters to help lawmakers draw districts representing them, as required by the Voting Rights Act. The president's critics, however, countered that the administration wanted to add the citizenship question to grant greater electoral power to its supporters, particularly whites and Republicans.
Others warned that the proposed question — "is this person a citizen of the United States?" — would discourage responses by non-citizens. This would alter state congressional representation, electoral votes, and distribution of federal funds, all of which must be based on population count.
Finally, in 2019, the Supreme Court ruled that the administration's offered justification — enforcement of the Voting Rights Act — was a pretext for its political agenda. As reporter Amy Howe put it in the scrupulously neutral SCOTUSblog, the administration's challengers successfully argued that "the Trump administration actually wanted to add the citizenship question to give an advantage to whites and Republicans...'the diametric opposite' of what the administration [had] maintained throughout this lawsuit."
Democratic lawmakers have continued to denounce the former president's attempt to modify the census: In July 2022, the House Committee on Oversight and Reform, then chaired by Democratic representative Carolyn Maloney of New York, issued a report stating that the "Trump administration secretly tried to manipulate the census for political gain while lying to the public and Congress about their goals."
But while the actions of the Trump-era Commerce Department were likely driven in some part by political motivations, its attempt to add a citizenship question to the census raised issues worth taking seriously.
Today, an estimated 48 million people residing in America are foreign-born. This is a historic record, and a dramatic increase over recent decades. In 1960, only around 5% of Americans were foreign-born; in 2020, the figure was 14%.
That 48-million statistic naturally includes many non-citizens. According to the Pew Research Center, in 2017, only 45% of foreign-born Americans were citizens, while some 23% of all immigrants were here non-legally and were therefore non-citizens by definition. All of these non-citizens are theoretically represented in Congress. But according to federal statute, they may not cast a ballot in federal elections.
As one might expect, these large numbers of foreign-born Americans are not evenly distributed across congressional districts. Given that seats in the U.S. House of Representatives are allotted to states based on their total population, states with high immigrant populations — and, implicitly, high non-citizen populations — receive more seats than they would have if non-citizens weren't counted. And yet they may have fewer eligible voters than those states with lower non-citizen populations.
Our current system of representation — in which congressional districting is based on population while voting is based on citizenship — has been warped by mass immigration, creating electoral distortions and raising serious questions: Is the population-based districting system fair to voters in districts with a greater percentage of citizens? Are members of Congress being chosen on a level electoral playing field? And what — both politically and constitutionally — might be done to address existing disparities?
Ultimately, the situation highlights the challenge of ensuring equal representation in a democratic republic.
THE CONSTITUTION AND APPORTIONMENT
The electoral complications arising from the presence of so many non-citizens stem directly from Article I of the Constitution, which stipulates how members of Congress are to be allocated:
Representatives...shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
The three-fifths rule is, thankfully, long gone. But the most important clause remains. In Congress, seats are allocated based on the number of all "free Persons" residing in a state — in other words, the number of representatives a state receives is calculated based on the size of the state's population rather than the size of its electorate.
That alone doesn't mean only citizens are entitled to vote, of course. The Constitution is silent as to that matter, stating only that the "Times, Places and Manner of holding Elections for...Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." In 1996, however, Congress passed a statute prohibiting any state from permitting non-citizens to vote in federal elections. The Illegal Immigration Reform and Immigrant Responsibility Act states:
It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner.
Notably, the act permits states to allow non-citizens to vote in non-federal elections if authorized by a "state constitution or statute or local ordinance."
The language of Article I appears to require lawmakers to include non-citizens in their population counts when drawing districts for federal elections — after all, non-citizens are "free Persons" who reside within a given state. The question of whether non-citizens may be excluded from population counts for state and local elections, on the other hand, has not been answered directly by the courts. Yet in the wake of increased immigration, legal disputes have emerged over related questions — perhaps not surprisingly in the high-immigration state of Texas.
In the 2016 case of Evenwel v. Abbott, the Supreme Court ruled that states are "permitted" to use total population counts (i.e., population counts that include non-voters) in drawing legislative districts for state and local elections. They are not required to do so, however, as Justice Samuel Alito asserted in a concurring opinion.
The plaintiffs in the case had sought to force Texas to count only registered voters (which excludes non-citizens) in its state legislative apportionment, arguing that to do otherwise would violate the "one person, one vote" principle enshrined in the 1964 case Reynolds v. Sims. Writing for the Court, Justice Ruth Bader Ginsburg held that although the plaintiffs' approach might be permissible, it would be disruptive. "Adopting voter-eligible apportionment as constitutional command," she argued, "would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries."
Tellingly, no jurisdiction today draws district lines on the basis of the number of citizens rather than the total population. Yet the fact that a case like Evenwel rose to the Supreme Court reflects the impact of higher immigration and non-citizen populations on such issues.
According to the Census Bureau, the overall percentage of foreign-born Americans is the largest in a century. High levels of immigration, coupled with current laws and constitutional authorities, leave us with a somewhat muddled reality: States and localities have full discretion regarding whether to permit non-citizens to vote in state or local elections (unless barred by their own constitutions), as well as whether to count non-citizens when drawing state legislative districts. But owing to Article I and the 1996 law, they have no discretion in such matters in federal elections.
The current body of districting law — enumerating "persons" for the purpose of apportioning seats in Congress but limiting the federal franchise to citizens — might have less of an impact if the immigrant population was evenly distributed across the United States and congressional districts. But that is far from the case.
Census data may not reflect the number of citizens in a given state or district, but they do indicate the percentage of foreign-born residents. Pew reports that almost "half (45%) of the nation's immigrants live in just three states: California (24%), Texas (11%) and Florida (10%). California had the largest immigrant population of any state in 2018, at 10.6 million. Texas, Florida and New York had more than 4 million immigrants each."
Differences in the immigrant presence across congressional districts are also significant. The population of Idaho's first district, for instance, is 95% native-born. Ohio's fourth district is 96% native-born. Meanwhile, California's 28th district is only 65% native-born. New York's 14th district is 63% native-born.
Given the high percentage of non-citizens among our country's immigrant population, one can plausibly infer that many residents in districts with large foreign-born populations are non-citizens and therefore may not vote in any federal election. Thus, even if all congressional districts have about the same population (approximately 761,000 persons, except in a state such as Wyoming, which has a smaller population but is constitutionally guaranteed at least one member in Congress), those districts with higher numbers of immigrants will have fewer eligible voters.
As one might expect given our polarized political geography, there is a partisan difference between districts with high versus low native-born populations. To take the examples mentioned above, Idaho's first district, which is 95% native-born, is represented by Republican Russ Fulcher. Ohio's 96% native-born fourth district is represented by Republican Jim Jordan. But California's 28th district, which is only 65% native-born, was represented by Democrat Adam Schiff until last year's redistricting. New York's 14th district, where the population is 63% native-born, is represented by Democrat Alexandria Ocasio-Cortez.
This does not mean that only Democrats represent districts with significant foreign-born populations. For instance, the population of the 39th California district, formerly represented by Republican Young Kim, is 75% native-born. The population of the 11th New York district, represented by Republican Nicole Malliotakis, is 67% native-born.
But overall, districts with higher immigrant — and therefore lower citizen — populations tend to be represented by Democrats. As Axios reporters found in analyzing the 2018 Congress using data from the Cook Political Report and the Census Bureau, 10 Democratic districts include a foreign-born population of higher than 40%, compared with just two Republican districts (in heavily Cuban south Florida). Only 15 Republican seats represented districts of at least 20% foreign-born residents, compared to more than 50 Democratic seats. The Center for Immigration Studies has also concluded that drawing congressional districts by total population rather than number of citizens yields results that are significantly skewed by party. Specifically, it found that in 2018, "[o]f 16 districts where more than one in four adults is not an American citizen, only one is represented by a Republican." In other words, Democrats hold the advantage in places where it takes fewer votes to win a congressional election.
There is no way to know whether the electoral outcomes in high-immigrant districts would differ if non-citizens could vote, nor whether citizen-based districting would lead to changes in partisan outcomes. Still, the partisan advantage correlated with the present method of drawing congressional districts should be cause for concern.
Partisan politics aside, there are also more practical reasons to be troubled by population-based congressional districting.
The mechanics of campaigns, for instance, are inevitably affected. Candidates running in districts with low numbers of citizens have to appeal to a smaller group of voters. That means less campaign literature to mail and lower advertising costs. Lower campaign costs could enable popular candidates in districts with fewer eligible voters to raise campaign funds not needed for their own congressional elections and then distribute them to other candidates, or save them to run for higher office.
More significant is the reality that candidates in districts with fewer citizens need, and in fact receive, fewer votes to be elected. Recall that congressional districts each contain approximately 761,000 residents. In Ohio's fourth congressional district, Jim Jordan received about 201,000 votes to win reelection in 2022. In New York's 14th district, Alexandria Ocasio-Cortez won with just 82,000 votes.
In comparing Ocasio-Cortez with Jordan and other members representing low-immigrant districts, it's not unfair to say that she represents fewer voters. In effect, for the purposes of U.S. congressional representation, votes in some districts can be said to count more than others.
Similar situations have occurred in the past, albeit in a different context. In the 1964 case Wesberry v. Sanders, the Supreme Court found that the votes of individuals in low-population rural counties in Georgia weighed more heavily than those in higher-population urban districts. "[I]n debasing the weight of appellants' votes," Justice Hugo Black concluded in his opinion for the Court, "the State has abridged the right to vote for members of Congress guaranteed them by the United States Constitution."
Leaving aside constitutional matters, counting non-citizens for the purpose of a state's congressional-delegation size without permitting them to vote means that non-citizens face what amounts to taxation without representation. It also calls to mind the three-fifths rule, which counted slaves — who didn't have the right to vote — as three-fifths of a person in calculating a state's congressional representation. (Odious as that rule was, it should be noted that what the South wanted would have been even worse. Southern states would have had slaves counted as full persons in order to inflate their congressional delegations. The delegates ultimately settled on the three-fifths compromise to keep the South's representation in Congress tied closer to its non-enslaved population count.)
These distortions demand a response to ensure fairer and more equal representation. One can view the Trump administration's push for a citizenship question in the census and citizen-based districting for federal elections as one approach, which would likely require amending the Constitution to alter Article I. No one has proposed such a change, and its chances of successful passage are low, to say the least. Yet the presence of so many non-citizens who are counted in drawing electoral districts but ineligible to vote is prompting government officials to seek alternative solutions.
Among the most prominent of these solutions is permitting non-citizen voting — a practice that has been sanctioned in a variety of jurisdictions for state and local elections.
Historically, numerous states permitted non-citizens to vote in any election, including those for federal office: Seventeen states formerly enabled resident non-citizens to vote for any office; 24 did so for those intending to become citizens.
Closer to our day, in 2021, the New York City Council moved to allow some 800,000 legal immigrants to vote in local elections — an enfranchisement that, as Politico put it, could "reshape local politics forever." The policy was blocked, however, after a New York state supreme-court judge ruled that it violated the state constitution.
Other governments have been more successful in adopting non-citizen voting: After surveying states and cities, Pew found a "short but growing list of jurisdictions that allow residents who are not U.S. citizens to vote in local elections." This includes nine Maryland cities, which permit non-citizens to vote in local elections, as well as two cities in Vermont (one of which is Montpelier, the state capital). San Francisco permits non-citizens to vote in local school-board elections. Democrat Hal Colston, a Vermont state representative who sponsored legislation enabling the city of Winooski to allow non-citizen voting, made the case for such policies: "People always glom onto the idea that you have to earn our right to vote by becoming a citizen," he said. "I just don't buy that. We're talking about a large chunk of the community that's closed off."
Some advocate authorizing non-citizen voting in federal elections as well. Stephen Mortellaro, a professor at George Washington University Law School, has challenged the constitutionality of the 1996 federal law barring non-citizen voting in federal elections on the grounds that Article I (specifically Section 2, Clause 1) leaves such decisions to the states. He writes in the Loyola Law Review:
[D]emands for national disenfranchisement laws have become pervasive since the 2016 election, and Congress has a ready model: a federal statute prohibiting noncitizens from voting in federal elections. Despite upending centuries of state control over voter qualifications, this statute remains unchallenged in court and unexamined in academia; its constitutionality has been assumed. This article challenges this assumption, arguing that the federal ban on noncitizen voting — along with every other voter qualification Congress imposes — unconstitutionally infringes state sovereignty.
Mortellaro's position may have its proponents and some inherent logic, but the defense of non-citizen voting merits our skepticism nonetheless.
As both a practical and a substantive matter, it lacks fairness. It allows non-citizens to enjoy a privilege that others, in preparing for citizenship, have worked hard to achieve. Becoming a U.S. citizen requires one to pay a $725 fee and pass a test consisting of questions drawn from a list of 100 potential queries — a program designed to make sure new voters are exposed to basic American history and principles. For those who have already held a green card for at least three years (and more commonly five), the process can take around 15 months.
The citizenship exam should not be viewed as a formality; it tests knowledge that should be familiar to all American voters. For starters, the test is offered in English — the language that binds the nation together culturally, and that any immigrant with hopes of achieving economic success in America will need to master. Just as important, however, is the content of the test: It draws on questions about our nation's foundational principles and governing scheme. Those taking the test may have to identify the U.S. Constitution as the supreme law of the land, be able to define freedom of religion, know what the branches of government are, and be able to name their state capital.
The federal study guide for the citizenship exam contains the full list of questions; those interested should attempt to take the test themselves or check to see if their high-school-age children can pass. But the point is this: The citizenship test is not voter suppression. It's a crucial step of basic preparation for becoming an informed voter in our republic.
Becoming an American citizen also requires taking an oath of allegiance. The language is powerful and includes a pledge not unlike that which new congressmen swear: "I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic...[and] I will bear true faith and allegiance to the same." In moving naturalization ceremonies held regularly across the country, new citizens raise their hands to take this oath, having studied and saved for the chance to do so. Non-citizen voting laws send the message that none of this is necessary, devaluing new citizens' achievements and giving the franchise to those who may be unfamiliar with essential aspects of our system of governance.
Allowing non-citizens to vote thus has significant shortcomings. But as mentioned above, the Trump administration's implicit alternative — basing redistricting and representation on the number of citizens, not total state population — may lack grounding in the Constitution.
Aside from counting persons as per Article I, no other precedent exists for determining the basic geography of congressional districts or the number of Congress members to which any state is entitled (except that each state will have at least one). Thus, there is a case, even a conservative case, for the approach enunciated by Justice Ginsburg in Evenwel: Don't upset a well-functioning process for districting that all 50 states and countless local jurisdictions have long followed.
Yet given its distortions, one can question whether this method is truly effective in guaranteeing fair representation to all. Fortunately, American history offers other examples of how to maintain such representation in a nation founded and increasingly populated by immigrants.
A CITIZENSHIP CRUSADE
Amid the immigration wave of the late 19th and early 20th centuries, American elites aggressively promoted the idea of citizenship. In her classic memoir, Twenty Years at Hull House, settlement-house pioneer Jane Addams wrote that "every Settlement has classes in citizenship in which the principles of American institutions are expounded and of these the community, as a whole, approves." Such lessons, she continued, make clear "the constitutional basis of a self-governing community." At the time Addams wrote, there were more than 400 local settlement houses providing classes and recreation for poor urban immigrants across the country, all of which were financed by local philanthropy.
To address both the electoral imbalances inadvertently created by Article I and the risks to representative democracy inherent to having a large group of non-voters who may not fully understand nor appreciate the elements of the American experiment, Americans must rediscover the legacy of Addams and the settlement house. In that spirit, the nation as a whole would do well to undertake a citizenship crusade — one that would both welcome new immigrants and encourage their Americanization.
That, as Addams understood, need not and should not mean rejecting one's own ethnic culture. Consider her observation of the Italian immigrants with whom she worked in Chicago:
[A]s the Chicago branch of the Society of Young Italy marched into our largest hall and presented to Hull-House an heroic bust of Mazzini, I found myself devoutly hoping that the Italian youth, who have committed their future to America, might indeed become "the Apostles of the fraternity of nations" and that our American citizenship might be built without disturbing these foundations which were laid of old time.
Addams would undoubtedly be pleased to see the hundreds of American flags that fly outside the homes of Mexican Americans on Chicago's southwest side if she were alive today.
Such a citizenship campaign runs the risk of being marred by partisan politics. But as noted above, the status quo already provides a partisan advantage, and thus entails its own risk of polarization. Moreover, the idea of a federally led citizenship effort has attracted bipartisan support in the past. The ill-fated "Gang of Eight" immigration-law reform bill of 2013 — co-sponsored by Democratic senator Charles Schumer and Republican senators John McCain, Lindsey Graham, Marco Rubio, and Jeff Flake — included a section specifically dedicated to the concept. Though the proposed legislation passed the Senate only to fail in the House, its language is worth revisiting.
The bill would have renamed the Department of Homeland Security's Office of Citizenship the "Office of Citizenship and New Americans," and would have directed the secretary of the department "to establish a Task Force on New Americans" that would "establish a coordinated Federal program and policy response to immigrant integration issues" (emphasis added). The most significant proposal would have established the United States Citizenship Foundation "to expand citizenship preparation programs" and "award Initial Entry, Adjustment, and Citizenship Assistance grants to eligible public or private, nonprofit organizations" for immigrant integration programs.
One might argue that a citizenship effort could be led by civil society alone. Indeed, there's no reason such efforts should not proceed and expand. But establishing a federal entity dedicated to citizenship would signal an important bipartisan consensus on the issue. And though fringe groups might receive funds, as is the case any time federal grants are involved, the sheer symbolism of a federal office for new citizens makes such a risk worth taking.
A decade after efforts to craft immigration-reform legislation, the political well for such changes has undoubtedly been poisoned. But in light of the electoral distortions that result from the current approach to congressional districting, coupled with the many reasons to help new Americans not only become voters, but knowledgeable ones, the idea of a Citizenship Foundation is worth reviving. Comprehensive immigration reform might be beyond our reach for now, but that doesn't mean we should shrink from modest steps to improve our electoral system — especially when those steps have the potential to facilitate major positive consequences for our electoral system and our country as a whole.