How Democrats Use Illegal Immigration To Acquire Electoral Power

In his first 100 days in office, President Donald Trump has ended the crisis at our southern border. Customs and Border Protection declared in March that we now have “the most secure border in history.” As Trump famously quipped at the State of the Union, it turns out we didn’t need new legislation, we just needed a new president.

Why, then, would any president want millions of unvetted illegal immigrants to enter freely into the United States? Why would an entire political party defend, and deny the perils of, the porous border presided over by Joe Biden and Kamala Harris?

The only explanation is the advantages this gives Democrats in the decennial census. It’s not sexy, but it’s the entire point.

The core constitutional purpose of the decennial census is to arrive at the “actual enumeration” of the people of each state so the inhabitants of each state are fairly and adequately represented in Congress and the Electoral College. When Democrat-run sanctuary states and cities induce population growth of illegal immigrants — who can currently be counted in the census — they understand the census will apportion in their favor. As the population of illegal immigrants in a sanctuary state swells, so too does that state’s congressional delegation and its Electoral College effect. The more people in the state, the more seats in Congress and the Electoral College. This means more spending, more representation, and more power for that state. Conversely, this means less of all three for the rest of us living in law-abiding states.

The census is essentially a cascade of delegation from the U.S. Constitution (Section 2 of Article I and the 14th Amendment), to Congress (Census Act), to the executive branch (Census Bureau), to the secretary of commerce (report to the president), to the president’s report to Congress. 

So do we have to count illegal immigrants for census apportionment? No, we do not. Illegal immigrants enjoy many rights and privileges while unlawfully in the United States. But being counted for apportionment should not be one of them.

The 14th Amendment requires, “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.” It was not until the 1980s that illegal immigration became a significant issue in the United States. In response, Congress asked the Department of Justice for an opinion letter on two bills seeking to exclude illegal aliens from census apportionment. The opinion letter was written by Assistant Attorney General for Legislative Affairs Thomas Boyd (“Boyd Letter”). Unfortunately, Boyd’s response to Congress declared both laws would likely be unconstitutional.

Boyd relied almost exclusively on his interpretation of the 1982 Supreme Court decision in Plyler v. Doe, which was a challenge to a Texas law prohibiting public education for illegal immigrants. The high court based its ruling on Section 1 of the 14th Amendment, affirming that “[n]o State shall deny to any person within its jurisdiction the equal protection of the laws.” Boyd sophomorically surmised that if the Supreme Court protected illegal immigrant “persons” covered by Section 1 of the 14th Amendment, then the “counting the whole number of persons in each state” clause in Section 2 of the 14th Amendment must apply to illegal immigrants as well. This has been the cornerstone of faulty arguments against excluding illegal immigrants from the census for nearly four decades.

If Boyd had actually read the court’s opinion in Plyler, he would have immediately recognized that the Supreme Court admitted it applied “persons” not according to some historical or textual analysis rooted in 14th Amendment legal philosophy, but rather in the “ordinary sense of [the] term.” This is significant because the Supreme Court recognized that the “ordinary sense of the term” and the “textual sense of the term” may, in fact, differ. Turns out they do! 

Had Boyd or the Plyler court applied the textual or historical sense, they would have discovered that the term “persons,” as used in the original context of the census, was commensurate with the term “inhabitants,” the most common term for those residing lawfully in the United States at the time. The Constitutional Convention and Federalist Papers are covered in the use of the term “inhabitants,” valuing citizenship and residency alike. The terms “constituents” and “inhabitants” were used almost interchangeably.

The first Census Act in 1790 called exclusively for the count of “inhabitants” in describing the headcount of the “whole number of … persons.” Importantly, there is no evidence that the meaning and understanding of “inhabitants” and “persons” changed between 1790 and 1868 when the 14th Amendment was ratified. The dictionaries of the time understood “inhabitants” to require in its definition some minimum degree of longevity.

As I recorded in a 2021 essay for the Notre Dame Law Review:

Samuel Johnson’s 1785 Dictionary defined “inhabitant” as a dweller or one who resides in a place. … Webster’s American Dictionary of 1828 defines “inhabitant” as a dweller who resides permanently. “Dweller” was defined as “a resident of some continuance in a place.” The definition to this day is “one that occupies a particular place regularly.”

Substantial, if not permanent, ties to a residence were understood to be included in the meaning of “inhabitant” when Article I and the 14th Amendment were ratified. Those definitions have not changed since. Being an inhabitant definitionally requires something more than mere presence, but rather significant, even lawful, ties to the United States. As scholars have put succinctly, illegal immigrants are characteristically not inhabitants by definition and may be excluded from the census for the sole purpose of apportionment. 

The Constitution requires that “as nearly as is practicable,” one person’s vote (another right not extended to illegal aliens) is to be worth as much as another’s vote in apportioning congressional representation. Your vote and representation in Congress are constitutional rights, the diminishment of which is a violation of the equal protection clause. Voter dilution punishes constituents in districts with few illegal immigrants and advantages districts where there are many. States that have invited large numbers of illegal immigrants to their sanctuary gain an unconstitutional advantage in representation over citizens from states respecting our laws, diluting both their vote and representation in the Electoral College and Congress. Again, the more people counted, the more seats in Congress and the Electoral College.

Those advantages are the intended fruits of open borders for sanctuary states.

Federal law requires that the criteria for the next census, “in such form and content” as the secretary deems appropriate, must be published by April 1, 2026. All methodologies and exclusions must be decided upon, and any Census-amending legislation passed into law by then. Congress must act now to abate the unconstitutional specter of voter dilution and debasement. California, New York, Massachusetts, and other leftist sanctuary states would lose seats in the House and the Electoral College. If no changes are made, Democrats may never again lose control of either.

It would be a distortion of self-governing principles for the number of seats in Congress or the Electoral College to swell in a state where the actual constituency has not. This would offer perverse incentives by encouraging illegal immigration and enticing those aliens to domicile in states looking to tip the congressional and electoral scales in their favor. 

Of course, for Joe Biden, Kamala Harris, and the Democrats, this was the point all along.

Jay Town is the former Trump-appointed U.S. Attorney for the Northern District of Alabama and current vice president and general counsel at Gray Analytics.