In a reversal of policy under then-President Donald Trump, Biden administration attorneys are arguing that the state of Alabama has no standing in trying to stop the U.S. Census Bureau from including people in the country illegally from the numbers used for divvying up congressional seats.

A federal judge should dismiss a lawsuit from Alabama and Republican U.S. Rep. Morris “Mo” Brooks seeking the exclusion of people in the country illegally from the apportionment numbers, attorneys for President Joe Biden’s administration said in court papers Wednesday. At the very least, the judge should put the court case on hold until the Census Bureau releases apportionment figures by the end of April that will show whether Alabama keeps seven congressional seats or drops to six, they said.

“The possibility that Alabama might receive only six House seats is, by definition, contingent and speculative,” Biden administration attorneys said. “After all, Alabama might well retain seven House seats regardless of whether undocumented immigrants are included in the apportionment base.”

A lot has happened since Alabama first filed the lawsuit in 2018 in a preemptive move to save the state from losing a congressional seat during the process in which the House of Representatives’ 435 voting seats are divided up among the states based on a population count conducted during the once-a-decade census.

Last year, Trump issued a memorandum that aligned his administration’s position with Alabama’s efforts to exclude people in the country illegally from the apportionment count. After the memorandum was challenged in multiple lawsuits, the Supreme Court ruled it was premature to decide on its legality because it wasn’t yet clear how many people would be excluded and whether the division of House seats would be affected. Finally, on his first day in office last month, Biden rescinded Trump’s memorandum, as well as a Trump order directing the Census Bureau to produce citizenship data.

With all that going on, the judge in the Alabama case wanted an update this week on how to proceed from all sides, including several states and civil rights groups that are fighting Alabama’s efforts and say any harm to the Cotton State is too speculative at this point.

The Alabama case is the last one pending over whether people in the U.S. illegally can be excluded from the apportionment count.

The Justice Department asked a judge to dismiss the lawsuit two years ago. But it was well before Trump issued his memorandum on apportionment, putting Department of Justice attorneys in the awkward spot of defending a position in opposition to administration policy. But U.S. District Judge David Proctor allowed the case to proceed. After Trump issued his memo last July, the Alabama case was placed on hold until the Supreme Court could rule on the memo’s challenges in other lawsuits.

Biden’s order has nullified Alabama’s challenge to a Census Bureau rule that says people should be counted where they live and sleep most of the time since the new president’s directive requires the apportionment count to include the total number of people living in each state regardless of immigration status, Biden administration attorneys said. If Alabama wants to continue the case, a three-judge panel needs to be appointed since it will present a challenge to the constitutionality of the apportionment process, they said.

Alabama said in court papers this month that Biden’s order puts the state at risk of losing political representation. Rather than challenging the apportionment process, Alabama is merely challenging Census Bureau operations, so it’s unlike the earlier case in which the Supreme Court ruled a challenge was premature, attorneys for Alabama said.

“What is more, the States holding disproportionately more illegal aliens than Alabama are the very states threatening Alabama’s representation,” attorneys for Alabama said.
Any ruling would only affect the numbers used for dividing up congressional seats among the seats and not affect other ways the 2020 census figures are used, such as the distribution of $1.5 trillion in federal funding each year.