November 20, 2020

Milbank and LDF File Amicus Brief in Supreme Court Case Challenging Efforts to Exclude Undocumented Immigrants From Census


Milbank LLP and the NAACP Legal Defense and Educational Fund, Inc. (“LDF”) filed an amicus brief on November 16, 2020 asking the United States Supreme Court (“Supreme Court”) to affirm the US District Court for the Southern District of New York’s ruling in Trump v. New York. The ruling blocks the Trump administration from unlawfully excluding undocumented immigrants from the decennial Census count determining Congressional apportionment.

At issue in the case is a July 21, 2020 Trump administration memorandum instructing the Department of Commerce to exclude people without documented immigration status from the official US Census count, which determines apportionment of the House of Representatives. The memorandum followed the Supreme Court’s rejection last year of the administration’s proposed addition of a citizenship status question to the Census, recognizing that the move was a pretext for limiting the political representation of immigrants and people of color.

LDF and Milbank’s brief argues that the administration seeks to drastically amend the theory of equal representation undergirding the Constitution and American democracy. Since its founding, the United States has embraced the principle that all persons, regardless of citizenship, must be counted for Congressional apportionment. Furthermore, the framers of the Fourteenth Amendment considered proposals to narrow the apportionment base strictly to citizens or the voting-eligible population and rejected them.

If the administration is successful in overturning the lower court’s decision, this policy will exacerbate the undercount of Black people and other communities of color in the Census, depriving them of equal access to government funding and the equal political representation they are entitled to under the law. According to the amicus brief, the memorandum would also dilute the representation of Black people and other people of color who live in close proximity to communities with large portions of undocumented immigrants. Such an outcome would violate the Fourteenth Amendment’s mandate to secure political representation for Black people in the United States.

“Not only does this attempt to redefine who is included in the Census contravene centuries of precedent and the bedrock principle of equal political representation for all, it also stands to harm communities that are already tragically underserved,” said Milbank partner Alan J. Stone, who led the Milbank pro bono team. “We hope to help convince the Court to rule on the right side of history.”

“The Supreme Court must reject this Administration’s effort to target people it disfavors, here undocumented immigrant communities, and deny them and the communities they live alongside their right to representation,” said LDF Deputy Director of Litigation Leah Aden. “The presidential memorandum is part of a years-long strategy to misuse Census data to manipulate redistricting and limit the political participation of communities of color. A Reconstruction Amendment in our Constitution clearly forbids this.”

The Milbank pro bono team includes Mr. Stone, special counsel John J. Hughes, III, and associates Andrew S. Wellin, Emily Lilburn, Pinky P. Mehta, Ryan Parchment, Sandhya Ramaswamy* and Chassity Bobbitt*. The LDF team includes Sherrilyn A. Ifill, Janai S. Nelson, Samuel Spital, Leah C. Aden, J. Zachery Morris, and Mahogane D. Reed. Read the amicus brief here.

*Not yet admitted to the bar.