Vote on citizenship question was to follow 14th Amendment, not add representation | Fact check

Andre Byik, USA TODAY
·7 min read
5

The claim: Post implies House Democrats voted to add congressional representation for 'illegals'

A May 11 Facebook post (direct link, archive link) purports to share news about a bill working its way through Congress that could change the electoral map.

"ALERT: House Dems just voted UNANIMOUSLY to give illegals representation in Congress AND the Electoral College," reads the post, which is a screenshot of a post on X, formerly Twitter. "House Seats and Electoral College votes WILL BE added to areas with the most illegals – including all Biden illegals – unless Senate passes the bill. Invasion by design."

The image includes a chart that shows the May 8 vote tally on H.R. 7109, the Equal Representation Act. Democrats who voted unanimously opposed the bill while Republicans who voted were unanimously in favor.

The post was shared more than 160 times in four weeks. A similar post on Instagram was liked more than 11,000 times in three weeks.

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Our rating: Missing context

The implied claim is wrong. The Democratic vote in question wasn't to add representation for non-U.S. citizens, it was to maintain the status quo of including them in the tally when determining representation, as required by the 14th Amendment. The Amendment, ratified in 1868, requires the House seats be divided among the 50 states based on "the whole number of persons in each state."

Post misrepresents House vote on GOP bill to modify census

The House approved legislation in early May that, if enacted, would add a citizenship question to the 2030 census and exclude noncitizens – regardless of legal status – from the population count used to divide House seats among the 50 states. The bill passed the GOP-led House with only Republican support. It's opposed by the White House, unlikely to pass the Democratic-controlled Senate and has raised constitutional legal questions, the Associated Press reported.

The bill, called the Equal Representation Act, is sponsored by Rep. Chuck Edwards, a Republican from North Carolina. A press release from his office said the bill would "stop the inclusion of illegal immigrants in the count toward congressional district apportionment and the Electoral College map," allowing only U.S. citizens to count.

This is where the claim, originally posted on X by Stephen Miller, a former senior adviser to former President Donald Trump, goes wrong. House Democrats did not vote to add representation for areas with immigrants who lack legal status representation in Congress. Rather, they voted against a bill that would newly exclude these immigrants – and all other noncitizens, such as permanent legal residents – from being included in the population count used for the apportionment of the 435 seats in the House of Representatives.

Noncitizens, including immigrants who are not legal residents, are currently included in the apportionment population count, which is based on the decennial census, according to the bill's own sponsor, the U.S. Census Bureau and census experts.

"The whole population is what the apportionment is based upon," Andrew Beveridge, a nationally recognized expert on the census and professor emeritus of sociology at Queens College, said in an email. "It is part of the Constitution and the 14th Amendment. What the GOP is trying would actually require a constitutional amendment."

According to the 14th Amendment, "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." This amendment reversed the practice of counting slaves as three-fifths of a person for determining representation. It was determined in 1940 that there were no longer any American Indians who should be classified as "not taxed," according to the Census Bureau.

The apportionment population count for the 50 states is based on the state's total resident population, which the Census Bureau says includes "unauthorized immigrants." These immigrants are described by the U.S. Department of Homeland Security as foreign-born noncitizens who are not legal residents. They may include people who entered the U.S. without inspection or who were temporarily admitted and stayed past the date they were required to leave.

Fact check: DC law granted noncitizens right to vote in local elections, not federal

Steven Jost, who was appointed as associate director for communications for the 2010 census by President Barack Obama and by President Bill Clinton for the 2000 census, told USA TODAY the census does not ask about legal status, and the country has "historically counted non-voters in every census since 1790, including women before they won the right to vote, and children to this day."

Each state is allocated a number of electoral votes equal to the number of senators and representatives in its congressional delegation, the National Archives explains on its website. For example, based on the 2020 census, Florida has 30 electoral votes. Two votes for its two senators and 28 votes for its 28 congressional districts. The District of Columbia is allocated three electoral votes and treated like a state for the purposes of the Electoral College under the 23rd Amendment, bringing the total number of electoral votes to 538.

Immigration has become a top issue for voters ahead of the November election, a Gallup survey in April showed. And on June 4, President Joe Biden issued a directive to curb the number of migrants who enter the country without legal permission at the U.S.-Mexico border, USA TODAY reported.

In a 2020 article, the Pew Research Center examined how removing unauthorized immigrants from the 2020 census apportionment count could affect the reapportionment of House seats. It found three states – California, Florida and Texas – would each lose one seat if these immigrants were excluded.

Margo Anderson, professor emerita of history and urban studies at the University of Wisconsin-Milwaukee and author of the "The American Census," said constitutional amendments have been proposed to restrict the population base for apportionment, or representation, but they have not gained political traction over the centuries.

"They include calculating apportionment totals for states to the white population; the citizen population, the native-born population; or the 'legal' population," Anderson said in an email. "To paraphrase Martin Luther King – and many predecessors and successors – 'the arc of the moral universe is long, but it bends toward justice.' The framers adopted a very broad rule for apportioning political power – and originally tax obligations – among the states of the infant U.S., and the modifications since 'bend' toward expansion – in voting – not contraction – in apportioning."

In a phone interview, the Facebook user who shared the post acknowledged that immigrants in the U.S. who lack legal status are currently included in the apportionment population count, but he said he wouldn't call the claim an overreach. The user argued the vote against the bill by House Democrats was a vote to continue giving these immigrants – and give newly arriving ones – representation when seats in the House are reapportioned among the states based on the 2030 census.

An attempt to reach Miller for comment was not immediately successful.

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This article originally appeared on USA TODAY: House Democrats voted against census citizenship question | Fact check