[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
      COUNTING THE VOTE: SHOULD ONLY U.S. CITIZENS BE INCLUDED IN 
               APPORTIONING OUR ELECTED REPRESENTATIVES?

=======================================================================

                                HEARING

                               before the

                       SUBCOMMITTEE ON FEDERALISM
                             AND THE CENSUS

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                            DECEMBER 6, 2005

                               __________

                           Serial No. 109-119

                               __________

       Printed for the use of the Committee on Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                      http://www.house.gov/reform


                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
26-074                      WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                     COMMITTEE ON GOVERNMENT REFORM

                     TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut       HENRY A. WAXMAN, California
DAN BURTON, Indiana                  TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota             CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania    DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee       DIANE E. WATSON, California
CANDICE S. MILLER, Michigan          STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio              CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California          LINDA T. SANCHEZ, California
JON C. PORTER, Nevada                C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas                BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia        ELEANOR HOLMES NORTON, District of 
PATRICK T. McHENRY, North Carolina       Columbia
CHARLES W. DENT, Pennsylvania                    ------
VIRGINIA FOXX, North Carolina        BERNARD SANDERS, Vermont 
JEAN SCHMIDT, Ohio                       (Independent)
------ ------

                    Melissa Wojciak, Staff Director
       David Marin, Deputy Staff Director/Communications Director
                      Rob Borden, Parliamentarian
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel

               Subcommittee on Federalism and the Census

                   MICHAEL R. TURNER, Ohio, Chairman
CHARLES W. DENT, Pennsylvania        WM. LACY CLAY, Missouri
CHRISTOPHER SHAYS, Connecticut       PAUL E. KANJORSKI, Pennsylvania
VIRGINIA FOXX, North Carolina        CAROLYN B. MALONEY, New York
------ ------

                               Ex Officio

TOM DAVIS, Virginia                  HENRY A. WAXMAN, California
                     John Cuaderes, Staff Director
            Ursula Wojciechowski, Professional Staff Member
                         Juliana French, Clerk
            Adam Bordes, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on December 6, 2005.................................     1
Statement of:
    Bensen, Clark, consultant and publisher, Polidata Co.; Steven 
      Camarota, director of research, Center for Immigration 
      Studies; and Lawrence Gonzalez, Washington director, 
      National Association of Latino Elected and Appointed 
      Officials..................................................    28
        Bensen, Clark............................................    28
        Camarota, Steven.........................................    41
        Gonzalez, Lawrence.......................................    53
    Miller, Hon. Candice S., a Representative in Congress from 
      the State of Michigan......................................    10
    Prewitt, Kenneth, Carnegie professor of public affairs, 
      School of International and Public Affairs, Columbia 
      University; Johnny H. Killian, senior specialist, American 
      constitutional law, American Law Division, Congressional 
      Research Service; James G. Gimpel, professor of government, 
      University of Maryland, College Park; Andrew C. 
      Spiropoulos, professor of law, Oklahoma City University 
      School of Law; and Nina Perales, Southwestern regional 
      counsel, Mexican American Legal Defense and Educational 
      Fund.......................................................    71
        Gimpel, James G..........................................    88
        Killian, Johnny H........................................    82
        Perales, Nina............................................   120
        Prewitt, Kenneth.........................................    71
        Spiropoulos, Andrew C....................................   111
Letters, statements, etc., submitted for the record by:
    Bensen, Clark, consultant and publisher, Polidata Co., 
      prepared statement of......................................    31
    Camarota, Steven, director of research, Center for 
      Immigration Studies, prepared statement of.................    43
    Gimpel, James G., professor of government, University of 
      Maryland, College Park, prepared statement of..............    90
    Gonzalez, Lawrence, Washington director, National Association 
      of Latino Elected and Appointed Officials, prepared 
      statement of...............................................    55
    Killian, Johnny H., senior specialist, American 
      constitutional law, American Law Division, Congressional 
      Research Service, prepared statement of....................    84
    Maloney, Hon. Carolyn B., a Representative in Congress from 
      the State of New York, prepared statement of...............     7
    Miller, Hon. Candice S., a Representative in Congress from 
      the State of Michigan, prepared statement of...............    14
    Perales, Nina, Southwestern regional counsel, Mexican 
      American Legal Defense and Educational Fund, prepared 
      statement of...............................................   122
    Prewitt, Kenneth, Carnegie professor of public affairs, 
      School of International and Public Affairs, Columbia 
      University, prepared statement of..........................    75
    Sanchez, Hon. Linda T., a Representative in Congress from the 
      State of California, prepared statement of.................   135
    Spiropoulos, Andrew C., professor of law, Oklahoma City 
      University School of Law, prepared statement of............   113
    Turner, Hon. Michael R., a Representative in Congress from 
      the State of Ohio, prepared statement of...................     3


      COUNTING THE VOTE: SHOULD ONLY U.S. CITIZENS BE INCLUDED IN 
               APPORTIONING OUR ELECTED REPRESENTATIVES?

                              ----------                              


                       TUESDAY, DECEMBER 6, 2005

                  House of Representatives,
         Subcommittee on Federalism and the Census,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:57 a.m., in 
room 2247, Rayburn House Office Building, Hon. Michael R. 
Turner (chairman of the subcommittee) presiding.
    Present: Representatives Turner, Dent, Foxx, and Maloney.
    Also present: Representatives Miller of Michigan, and Linda 
T. Sanchez of California.
    Staff present: John Cuaderes, staff director; Ursula 
Wojciechowski, professional staff member; Juliana French, 
clerk; John Heroux, counsel; Peter Neville, fellow; Adam Bordes 
and Mark Stephenson, minority professional staff members; and 
Jean Gosa, minority assistant clerk.
    Mr. Turner. Call to order the Government Reform 
Subcommittee on Federalism and the Census. A quorum being 
present, this hearing of the Subcommittee on Federalism and the 
Census will come to order.
    Welcome to the subcommittee's oversight hearing entitled, 
``Counting the Vote: Should Only U.S. Citizens Be Included in 
Apportioning Our Elected Representatives?'' We are here today 
to discuss a proposed amendment to the Constitution that would 
change how the Census Bureau determines the enumeration for the 
purposes of apportioning the U.S. House of Representatives.
    The 14th amendment states, ``Representatives of the House 
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.'' In other words, 
all individuals residing in the United States on Census Day, 
except for nontaxed Indians must be enumerated to determine the 
apportionment base.
    The issue of whether noncitizens should be included in the 
apportionment base has received considerable congressional 
attention in the past. In 1940, for example, Representative 
Celler of New York said on the floor of the House, ``The 
Constitution says that all persons shall be counted. I cannot 
quarrel with the Founding Fathers. They said that all should be 
counted. The only way we can exclude anyone would be to pass a 
constitutional amendment.''
    Most legal scholars agree with the view of Representative 
Celler that any attempt to exclude noncitizens from enumeration 
must be accomplished by a constitutional amendment. That is 
what Representative Candice Miller has proposed by introduction 
of House Joint Resolution 53. This measure is a straightforward 
proposal to distinguish citizens of the United States from the 
total populations for purposes of determining the apportionment 
base.
    I am willing to wager that many, if not most, Americans 
think that is exactly how it is done today and would be shocked 
to learn that noncitizens, especially those in the country 
illegally, have an impact on apportioning the membership of the 
House of Representatives.
    Regardless of possible popular belief, there may be some 
very compelling reasons why the Framers used the word 
``persons'' instead of the word ``citizens'' or ``voters'' when 
they crafted the 14th amendment. The primary question before us 
today is if H.J. Res. 53 is adopted by Congress and ratified by 
the States, how would things be different?
    We have several witnesses today that may provide the 
subcommittee some insight into what the political landscape 
would have looked like in the past if the census excluded 
noncitizens, what it might look like after the 2010 census if 
H.J. Res. 53 is adopted. I think you will find this testimony 
most interesting.
    This hearing has been structured in such a way that the 
subcommittee will first hear from Congresswoman Miller so that 
we she may describe her proposal. Subsequent to her testimony, 
she will join us as a member of the subcommittee in listening 
and questioning the other witnesses.
    The subcommittee will then hear from a second panel 
comprised of two esteemed demographers, Clark Bensen, a 
consultant and publisher from the Polidata Co., and Steven 
Camarota, Director of Research for the Center for Immigration 
Studies. Joining these two will be Lawrence Gonzalez 
representing the National Association of Latino elected and 
appointed officials.
    In our third panel we will hear from several legal and 
academic scholars including the former director of the Census 
Bureau, Dr. Ken Prewitt. Joining him will be James Gimpel, 
professor of government and politics at the University of 
Maryland; Johnny Killian, senior specialist in constitutional 
law in the American Law Division of the Congressional Research 
Service; and Andrew Spiropoulos, professor of law at the 
Oklahoma City University School of Law. Finally, we will hear 
from Nina Perales, Southwestern regional counsel of the Mexican 
American Legal Defense and Education Fund.
    With that, my colleagues on the subcommittee and I welcome 
you Mrs. Miller and we look forward to your testimony. We look 
forward to the testimony of all our distinguished witnesses 
today and thank them for their preparation and time in 
participating today.
    With that, I would like to recognize our ranking member 
Mrs. Maloney.
    [The prepared statement of Hon. Michael R. Turner follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.001
    
    [GRAPHIC] [TIFF OMITTED] T6074.002
    
    Mrs. Maloney. Thank you, Chairman Turner, and I really very 
much appreciate your fairness in handling this hearing, and I 
always enjoy working with you. I particularly want to thank you 
for the hearing you held recently in New York City on the 
community development block grants and look forward to the 
passage of that report before Congress.
    But today, unfortunately, we have before us a truly 
reckless constitutional proposal which on one hand runs counter 
to our American ideals and on the other hand makes little 
practical sense. Were it to become part of the Constitution, it 
would be the second amendment in our history which did not 
expand individual liberties. The other was prohibition. The 
amendment shrinks liberty and deliberately blinds the national 
government to the needs of millions upon millions of Americans.
    This amendment reverses the explicit intent of the Framers 
that representation in the House should be based on population 
and that a periodic count of residents was the only legitimate 
means to assure equitable representation based on population in 
a changing nation.
    The Census Act of 1790, introduced by James Madison and 
signed into law by George Washington, called for an enumeration 
of the, ``inhabitants of the United States.'' This was 
deliberate. We were then and have always been a nation of 
immigrants. Indeed, seven signers of the Declaration of 
Independence and eight signers of our Constitution were foreign 
born. Noncitizens fought for liberty in the Revolutionary War 
for America and in every war since. Today, 35,000 noncitizens 
serve on active duty and 8,000 more enlist every year.
    Most noncitizens are here legally. They are legal, 
permanent residents and visa holders who pay local, State and 
Federal taxes. The Framers decided that only citizens would 
have the right to choose their Representatives through the 
right to vote. They just as firmly intended that, ``all 
inhabitants,'' of the country be counted for purposes of 
apportioning the seats of Congress. They mandated a census of 
the entire population to prevent the, ``manipulation of 
political power and taxation.''
    The census is itself one of the many vital checks and 
balances embedded in our constitutional form of government 
which are at the root of why it has endured so long. This 
amendment before us today, however, turns the census into a 
political gadget.
    As we will hear today in testimony, the census has become a 
weapon in today's political debate on immigration. Proponents 
of this amendment will point to recent growth in the percentage 
of foreign-born residents to make a case that this has somehow, 
``diluted voting representation of nonborder States.'' The 
truth is that compared to the post-Civil War counts, for 
instance, this percentage is historically low.
    As we will hear today, this amendment is a management 
nightmare. It requires the Census Bureau first to count 
everyone, then for the first time in our Nation's history, ask 
everyone for proof that they are a citizen, only for the 
purpose of going back and removing people from the count. That 
will be a huge cost in time and taxpayer money.
    Imagine when proponents of this amendment demand that 
residents show proof of citizenship. The end result will be a 
national ID card. And let's not sugar coat the effects of this 
amendment; it will discriminate, it will disproportionately 
exclude Hispanics, who make up the lion's share of our Nation's 
most recent immigration. To politically manipulate the count 
and generate undercounts in border States to benefit interior 
States is discrimination.
    Some of our friends on the other side of the aisle profess 
to prefer a limited Federal Government, so why would they 
propose a big government, expensive, time-consuming, invasive 
and last, but certainly not least, discriminatory amendment to 
our Constitution? It is simple. This amendment is about 
shifting power. By artificially altering the population in 
certain areas, the consequence, of course, is an inaccurate 
census count.
    A government that spends its resources in the wrong places, 
where it would skew representation, will result in a loss of 
faith in leadership.
    This is about sacrificing 210 years of constitutional 
practice and history merely to increase short-term power at the 
expense of millions of Americans and those that will soon be 
Americans in our country.
    I am opposed to this amendment. Thank you.
    [The prepared statement of Hon. Carolyn B. Maloney 
follows:]

[GRAPHIC] [TIFF OMITTED] T6074.003

[GRAPHIC] [TIFF OMITTED] T6074.004

[GRAPHIC] [TIFF OMITTED] T6074.005

    Mr. Turner. Mrs. Maloney, I want to thank you for your 
participation today. You have made valuable contributions to 
this committee, and I appreciate your viewpoint.
    Today, this hearing, as we look forward, is informational, 
and I do believe that many are not aware of how apportionment 
is accomplished; and your viewpoint is going to be valuable as 
we educate people of the processes and perhaps the impacts of 
this constitutional amendment.
    Mrs. Maloney. I appreciate it is educational and not--thank 
you.
    Mr. Turner. I next would like to recognize our vice chair, 
Charlie Dent.
    Mr. Dent. Thanks, Mr. Chairman, and thank you for holding 
this very important hearing to examine the possible impact of 
Congresswoman Miller's proposed joint resolution to amend the 
Constitution to mandate that only U.S. citizens be counted in 
census data for apportionment purposes. It is crucial that we 
review and evaluate this proposed legislation in that it would 
have a widespread impact on the Census Bureau, Electoral 
College, number of seats in the House, and basic weight of an 
individual's vote.
    While I deeply respect the Congresswoman's initiative in 
attempting to illuminate and correct the problem of dilution of 
U.S. citizens' votes, I think it is also crucial that we take a 
realistic look at the possible difficulties and costs that may 
arise as a result of implementing H.J. Res. 53. I look forward 
to the testimony of my esteemed colleague, Representative 
Miller, as well as the other witnesses today.
    Thanks, Chairman Turner, for holding this hearing.
    Mr. Turner. Thank you. Now it is my honor to recognize for 
her testimony the Honorable Congresswoman Candice Miller.

   STATEMENT OF HON. CANDICE S. MILLER, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mrs. Miller. Thank you. Thank so much, Mr. Chairman and 
Representative Maloney, Vice Chair Representative Dent as well. 
I appreciate the fact that you all come with an open mind to 
this issue, and I certainly appreciate your having a hearing on 
a piece of legislation that I think is very important to 
protect the integrity of our democratic system, quite frankly.
    Mr. Chairman, over the last several decades our Nation has 
had a rather dramatic shift in the population, and as a result 
of that, a shift in the congressional representation as well, 
principally from the Northeast and the Midwest, to the southern 
and western regions of our Nation. There are, of course, a 
number of reasons for population shifts.
    Many people just prefer warmer climates and they might 
retire into some of those areas permanently. Some people are 
looking for job opportunities, and they may move to cities to 
pursue them. There are certainly many legitimate reasons for 
people to move to the South and West, and I strongly believe in 
the concept of representational democracy, so it is entirely 
appropriate for congressional seats to move along with the 
population shifts so that Americans are properly represented in 
the halls of Congress.
    But as I examined this issue, I came across what I thought 
was a rather surprising thing, quite startling actually. The 
fact is that illegal immigration or people who are in our 
country illegally or are not legal citizens of our Nation are 
being counted and apportioned congressional representation just 
the same as every legal American citizen.
    Let us examine how this can possibly be happening. Our 
Constitution, of course, requires the government to undertake a 
census every 10 years. One of the many purposes of the census 
is to distribute seats in the Congress amongst the various 
States. Those with greater population receive more seats than 
those with less. Simple concept. This reapportionment of seats 
is meant to balance as close as is practical the concept of one 
man, one vote.
    The 14th amendment of our Constitution states that in the 
census that all persons must be counted. All persons, of 
course, include every man, every woman, rich, poor, Black, 
White, every person. However, many people would be surprised to 
know that it also means citizens and noncitizens, including 
illegal immigrants.
    In fulfilling its constitutional obligation, the U.S. 
Census Bureau counts every person whether they are in this 
country legally or not. Those same numbers, which include both 
legal and illegal immigrants, are then used to determine 
congressional representation. So even if you broke the laws of 
our country to come here, we give you as much representation to 
impact our laws as any legal American.
    So for all practical purposes, when we are voting in 
Congress about issues like national security or border security 
or illegal immigration, we allow illegal immigrants to 
influence the outcome of those votes. We disenfranchise our own 
American citizens by allowing illegal immigrants to be counted 
for the purposes of congressional representation in the same 
identical way that we count legal citizens.
    Just allow me to illustrate my point by comparing three 
different congressional districts, and let me start with the 
10th District of Michigan, which I am very proud to represent. 
According to the 2000 census, in the 10th District of Michigan, 
the census says 97 percent of the residents that live in my 
district are American citizens; 3 percent are not.
    If you look at the entire State of Montana, that has only 
one congressional district, the census is saying there that 99 
percent of the people in Montana are citizens, less than 1 
percent are not.
    Let us now consider the congressional district, the 31st 
District of California. According to the census, 60 percent of 
the residents there are citizens, 40 percent of the residents 
in this district are not American citizens, and yet all three, 
the 10th District of Michigan, the entire State of Montana, and 
the 31st District of California have the same vote in the U.S. 
Congress.
    Mr. Chairman, as you know, I was a secretary of State in 
Michigan before I came to Congress. My principal responsibility 
there was as an election official, so I do perhaps look at 
election results a little more closely than some. And it was 
while I was looking at some of the election numbers that this 
became apparent to me.
    There were nearly three times as many voters in my district 
during the last election cycle as there were in California's 
31st. So a House candidate in California's 31st District only 
needs 56,000 votes to win a seat in Congress, and yet in my 
district a winning candidate would need a minimum of 166,000 
votes in order to become a Member of Congress, nearly 50 
percent more than the entire vote in California's 31st.
    I think that fundamental fairness suggests that each 
congressional district should have roughly the same number of 
citizens since only citizens are able to vote. A district that 
has tens or hundred of thousands of illegal immigrants dilutes 
the voice of American citizens in other areas of the Nation, 
and in my opinion, that is simply not fair.
    Another effect of these congressional seats shifting to 
States with larger noncitizen populations is that recipient 
States have a larger voice in Congress and, in fact, throughout 
the entire Federal Government. By having an inflated 
population, a greater number of Representatives in the House, 
it opens doors for increased Federal funding in those States. 
It might actually give some of these States an incentive to 
encourage illegal immigration.
    If only citizens had been counted for the purposes of 
reapportionment, CRS estimates show that it would have had an 
impact on how nine congressional seats were allocated during 
the last congressional reallocation. By the Census Bureau's 
estimate, California is home to an estimated 5.4 million 
noncitizens. The State of California would have been allocated 
six fewer seats in the House of Representatives. Three other 
States would have had one less seat: Florida, New York and 
Texas.
    Nine States would have picked up those seats. Those States 
are Indiana, Kentucky, Michigan, Mississippi, Montana, 
Oklahoma, Pennsylvania, Wisconsin and Utah. In fact, if you 
think about the six additional congressional seats that have 
been given to California just because of its illegal immigrant 
or its noncitizen, however you want to categorize it, 
population, it also gives those noncitizens an equal or greater 
voice in the Electoral College and, thus, the Presidential race 
than States that have six or less Members of Congress.
    Those States that have less to say than illegal immigrants 
are Alaska, Delaware, Arkansas, the District of Columbia, 
Hawaii, Idaho, Kansas, Maine, Mississippi, Montana, Nebraska, 
Nevada, New Hampshire, New Mexico, North Dakota, Rhode Island, 
South Dakota, Utah, Vermont, West Virginia and Wyoming. Fully 
20 States and the District of Columbia have less to say, who is 
elected the President of the United States, than do the illegal 
immigrants that live in the State of California, most of whom, 
many of them, broke laws to get into our Nation.
    Mr. Chairman, there are a number of people who you will 
hear from shortly in the next panel who will tell this 
committee not to concern itself with this, that we are a 
compassionate nation and we need to protect everybody and need 
to allow this to continue. I do not believe that we should. And 
for those reasons I have introduced House Joint Resolution 53. 
This is a constitutional amendment that specifies that the 
congressional representation shall be apportioned based on the 
number of citizens, not persons, a really simple change to the 
14th amendment.
    The right to vote is certainly one of our most cherished 
freedoms. We should not allow that right to be diluted for any 
reason. Unfortunately, our porous border and lax enforcement of 
immigration laws are doing just that. Citizens in States with 
fewer immigrants, legal and illegal, are disadvantaged. This is 
about fundamental fairness and, again, the American ideal: One 
man, or maybe one woman, one vote.
    I don't want anyone to take away the impression that I am 
anti-immigration. I am a first-generation Scot, and in my 
district and in my entire State we have immigrants that came 
from across the globe to seek a better life for themselves. And 
I will tell you that my constituents who have followed the laws 
to become American citizens are the first people that think 
that this is outrageous and want to see it changed. They 
cherish their citizenship so deeply and the blessing it bestows 
on them that they more than any others do not want to have 
their voice diluted.
    I appreciate your interest in this issue, Mr. Chairman and 
members of the subcommittee, and I look forward to your 
questions. Thank you.
    [The prepared statement of Hon. Candice S. Miller follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.006
    
    [GRAPHIC] [TIFF OMITTED] T6074.007
    
    [GRAPHIC] [TIFF OMITTED] T6074.008
    
    [GRAPHIC] [TIFF OMITTED] T6074.009
    
    [GRAPHIC] [TIFF OMITTED] T6074.010
    
    [GRAPHIC] [TIFF OMITTED] T6074.011
    
    [GRAPHIC] [TIFF OMITTED] T6074.012
    
    [GRAPHIC] [TIFF OMITTED] T6074.013
    
    [GRAPHIC] [TIFF OMITTED] T6074.014
    
    [GRAPHIC] [TIFF OMITTED] T6074.015
    
    [GRAPHIC] [TIFF OMITTED] T6074.016
    
    Mr. Turner. Congresswoman Miller, I appreciate the fact 
that you have highlighted this issue. I think we are all aware 
that when the constitutional convention came together there was 
much heated discussion that resulted in the structure that we 
have today of the House and the Senate and the allocation of 
Representatives by State based upon the discussion of how do we 
balance the issue of influence of large States versus small 
States. There was a grave concern that those in small States 
would have less of a voice or representation in Congress and 
have perhaps their interests overridden.
    With your illustration of the fact that noncitizens in 
California representing six additional electors both in the 
Electoral College that elects our President, and 
Representatives, your illustration that 20 States have either 
less or equal representation on the national level to those 
seats gives a great illustration that this is an issue that 
goes to the heart of the discussion of the constitutional 
convention of the balance of States and their power.
    I certainly think that your comments do not sound anti-
immigrant; they sound citizen versus noncitizen as an issue of 
allocating the vote. It certainly doesn't address the issue of 
whether or not anyone is welcome, but as you address the issue 
of balancing of power between the States--something that was 
very important in structuring our government--it becomes part 
of that discussion.
    Prior to serving in Congress you served as secretary of 
State and had responsibility for administration of the 
electoral system in Michigan. One of the criticisms that we 
hear of this proposal--obviously, one is the issue of cost, 
which I don't find too compelling because, obviously, if we are 
trying to bolster the rights of citizens, cost is certainly not 
something that would be a compelling argument.
    But the nightmare of the administration of the process, I 
think, is one that does need to be addressed: How would we 
accomplish the determination of someone's status as citizen or 
noncitizen? In the testimony that you have and the testimony 
that we have from most of the witnesses, they make references 
to the number of citizens or noncitizens that are currently 
counted in the system. Someone obviously has taken an effort 
from the data that we have had to ascertain where citizens or 
noncitizens are located.
    Could you speak for a moment to what you have learned and 
your thoughts on the processes of how we might be able to then 
be successful in doing a census which is under the jurisdiction 
of this committee and determine citizenship and noncitizenship?
    Mrs. Miller. Yes, Mr. Chairman. I obviously don't work for 
the Census Bureau, so I couldn't tell you what the entire 
impact would be, but I do not believe that this resolution that 
I am putting forward should really be viewed numerically in the 
terms of what the costs actually are. As you say, it is about 
fairness and protecting our citizens' rights.
    However, right now, the Census Bureau is already estimating 
without verifying how many citizens and how many noncitizens. 
In fact, CRS prepared a report for me, detailing for every 
congressional district in the entire Nation the numbers based 
on the last census of total population, native born, 
naturalized citizens, their total, the percentage of resident 
population, noncitizen population, and then the total vote cast 
in the 2002 general election.
    The Census Bureau is already doing much of this work 
without verification. If they just started with the information 
that they already have, I don't know why that would be a 
problem for them.
    I do think though, it is very important that we do count 
every person. I am not suggesting that we stop counting 
everybody here. It is important for us to try to get a handle 
on what our population is, citizens, noncitizens, etc. I am 
only speaking to the process of congressional representation, 
so I am not suggesting that the Census Bureau change their 
processes not to count illegal immigrants or noncitizens. Those 
categories must be counted and have to be taken into 
consideration for a number of other reasons.
    I am also not suggesting that my proposal go to States or 
local municipalities. This is only about Federal congressional 
representation. The States would be allowed to continue as they 
want.
    I would like to mention the REAL ID Act that the Congress 
has recently passed. I was very involved in that particular 
piece of legislation. Not only as former secretary of state in 
Michigan did I have election responsibilities, I also had 
responsibilities with issuing drivers' licenses. We were 1 of 
10 States that continued to issue driver's license and State 
identification cards to known illegal immigrants; even though 
we knew they were in the country illegally, we had to keep 
giving them a driver's license, which I believe is very 
counterintuitive with the kinds of challenges that are facing 
our Nation today.
    But the REAL ID Act is going to address that. Now legal 
presence will be required and every State, even before the REAL 
ID card, the DMVs and secretaries of state are required to ask 
for your Social Security number before they issue you a 
driver's license or State identification card.
    So I do think that some of this verification technology is 
going to be in place and I would speculate that it will be an 
assist to the Census Bureau as they look into what the costs 
actually would be.
    Mr. Turner. Congresswoman Miller, you have proposed this 
change by constitutional amendment versus statute.
    Is it that you believe that a statute would not be 
sufficient in order to be able to effect this change?
    Mrs. Miller. You know, I would prefer to do it by statute 
because obviously a constitutional amendment is quite a 
laborious process; and again, I appreciate the hearing on the 
issue. Of course, it requires two-thirds of each body and then 
three-fifths or three-quarters of the States for a 
constitutional amendment, and we should not change the 
Constitution by whim; so I recognize the seriousness of what I 
am proposing here. However, as we researched this issue, we 
came across a Harvard Journal of Law and Public Policy, this 
was in the Spring of 1999, entitled, ``Losing Control of 
America's Future: The Census, Birthright, Citizenship and 
Illegal Aliens.'' They went through this entire process, and at 
the very end it said that the thesis of this article is that 
needed changes can be accomplished by statute.
    They do believe that it could be accomplished by statute. 
If, however, either change cannot be made in this way without 
significant delay because the President, Congress or even the 
Supreme Court believes the Constitution precludes it, then a 
constitutional amendment should be pursued until ratification 
is achieved.
    Essentially, I came to the same conclusion because I do 
believe if we tried to do this by statute, even if we were 
successful in passing it, we would be facing endless 
litigation, and so I thought a constitutional amendment would 
be the most prudent course.
    Mr. Turner. Thank you so much.
    Mrs. Maloney.
    Mrs. Maloney. Thank you very much for your testimony today, 
Congresswoman.
    As a Member of Congress, can you describe how your proposal 
benefits your State of Michigan?
    Mrs. Miller. Yes. As I mentioned in my testimony, we 
actually would probably not have lost one of our seats. 
Previous to the last census, Michigan had 16 congressional 
seats. Currently we have 15, and we are looking in the next 
census at the distinct possibility of losing an additional 
seat. This is not because we have not grown in population. Many 
States just like your own of New York, we have actually had an 
increase in our population but not at the same rapid expansion 
that is happening in the South--Florida, Arizona, New Mexico, 
Texas, California, what have you--particularly when you factor 
in the illegal immigration.
    Mrs. Maloney. I have no further questions.
    Mr. Turner. Mr. Dent.
    Mr. Dent. Thank you, Mr. Chairman.
    Like you, Congresswoman Miller, I come from a State that 
has not grown at a very great rate. In fact, according to the 
data, in 1960 my State had 27 Members of Congress; today we 
have 19. Back in the 1930's I know we were over 30 Members of 
Congress. So really since the 1930's our representation has 
been nearly cut in half.
    I would be curious to know how many seats my State has lost 
due to noncitizens being counted over these several decades, 
and maybe you know what the answer is to Michigan.
    According to the data provided to me, my State would pick 
up a seat. I would be curious to see how many seats we might 
not have lost had noncitizens not been counted. I don't know if 
you have any thoughts on that.
    Mrs. Miller. I have some thoughts. I think it is very 
unfair what has happened to all of us.
    I am sorry, I don't have the numbers for your particular 
State, but you can see a common element here. And I understand, 
as I said at the outset, that we all absolutely believe in 
representing the people, the American citizens. That is why we 
require citizenship to vote.
    I mean, if you took this to its logical conclusion, why 
even require citizenship in order to vote? Again, as a former 
chief elections officer, if we want to protect the rights of 
illegal immigrants, why do we even require people to have 
citizenship to vote? They are already really voting on the 
floor of the House.
    But I do think that we understand why people and population 
shifts are occurring. That being said, I have no problem with 
seats in the House being apportioned based on population, but I 
certainly do have a distinct distaste for the fact that 
American citizens', legal citizens of America, vote is being 
diluted because as the population is shifting and illegal 
immigration is increasing in some of these border States.
    Mr. Dent. Thank you.
    Mr. Turner. We thank Congresswoman Miller. We thank you for 
your testimony as panel one, and if you would, please now join 
us as we turn to Panel Two. We have two panels that would 
continue our discussion of the counting of U.S. citizens and 
how it impacts our elected Representatives and what would be 
the effect if we only, in that process, counted U.S. citizens.
    On panel two we have Mr. Clark Bensen, consultant and 
publisher, Polidata Co.; Mr. Steven Camarota, director of 
research, Center for Immigration Studies; Mr. Lawrence 
Gonzalez, Washington director of National Association of Latino 
Elected and Appointed Officials.
    If you would come forward.
    Gentlemen, we will begin by swearing in the witnesses of 
our second panel. We will swear in the witnesses for the second 
and the third panels. Witnesses will notice that there is a 
timer light at the witness table. The green light indicates 
that you should begin your prepared remarks and the red light 
indicates that your time has expired. The yellow light 
indicates when you will have 1 minute left to conclude your 
remarks. Each of you will be asked to summarize your previously 
submitted written testimony into a 5-minute presentation.
    It is the policy of this committee that the witnesses be 
sworn in before they testify. You would please rise and raise 
your right hands.
    [Witnesses sworn.]
    Mr. Turner. Please let the record show that all witnesses 
have responded in the affirmative.
    I want to thank each of you for the time that you have 
taken to prepare for your testimony here today. We look forward 
to your comments and we will begin with Mr. Bensen.

STATEMENTS OF CLARK BENSEN, CONSULTANT AND PUBLISHER, POLIDATA 
    CO.; STEVEN CAMAROTA, DIRECTOR OF RESEARCH, CENTER FOR 
    IMMIGRATION STUDIES; AND LAWRENCE GONZALEZ, WASHINGTON 
DIRECTOR, NATIONAL ASSOCIATION OF LATINO ELECTED AND APPOINTED 
                           OFFICIALS

                   STATEMENT OF CLARK BENSEN

    Mr. Bensen. Thank you, Mr. Chairman. I appreciate the 
opportunity to address the possible impacts, mostly the 
political impacts, of a noncitizen apportionment.
    Mr. Turner. Can I ask you to move closer to your mic. That 
way we can hear you better.
    Mr. Bensen. In addition to the written remarks, there are 
maps and tablets on my Web site, Polidata.organization, 
Polidata.org, and there were just too many different scenarios 
to provide all sorts of handouts here.
    Let me first start off by summarizing some of what 
Congresswoman Miller addressed, which is, the 2000 census 
actually was the culmination of a 6-decades-long shift of the 
political power in the country from the Northeast and the 
Midwest to the South and the West. This is clearly a trend that 
is continuing, and in fact, projections on the 2010 
apportionment would indicate that an additional 11 seats would 
shift from the Northeast to the South and the West.
    At the same time, of course, the noncitizens, as we 
measured them in the census, have risen dramatically from, in 
1980, about 3 percent to, in 2000, over 6 percent. The 
distribution, however, of the noncitizens is not very randomly 
distributed as it were, and in fact with the handout over here 
there are two maps, one of which is a county-based map, which 
is this one, which does in fact indicate that a lot of the 
distribution of the noncitizens is in the border areas. And it 
is because of this uneven distribution of the noncitizens, 
again, as we determine them from the census that in fact this 
is a Robin Hood kind of proposal in the sense that we take from 
the few and give to the many.
    And in fact the first aspect I looked at here was the 
actual apportionments that have been made over the last few 
decades and projected out to 2010. And in 1980, 1990 and 2000 
it was the same general trend, which is, very few States--
basically, four or five States----would have lost seats had the 
apportionment been based upon noncitizens. And in 2010 it would 
basically be the same impact.
    Before my time runs out, I want to address a couple of 
issues. A lot of the issues we will hear several times today, 
but one of the impacts, of course, is just briefly the 
Electoral College. Yes, noncitizens do vote in California 
because of this, but the overall impact would be basically not 
as big a shift because some of the other States, of course, are 
Republicans or Democrats, and so in a sense would have been 
four extra votes for Bush in 2000 and 2004.
    But the other aspect goes to the redistricting elements of 
it, and Congresswoman Miller addressed this to some degree. In 
actuality, her example is correct even though in reality you 
should look at one State at a time. And in California it is a 
similar situation, in which case I look at the Presidential 
results by congressional district.
    And this is a project that Polidata has been working on 
every 4 years for 2 decades, and we look at the total votes in 
the Presidential election and compare that; and in California 
it is the same kind of scenario, which is, you have districts 
where the average vote in the Presidential election is three 
times what the vote is in the districts that have the smallest 
number of votes.
    Let me summarize by saying that also the overall result for 
the House is that if you add up all the districts based upon 
the Presidential votes, 50 percent of the Members are elected 
by 42 percent of the voters in the country.
    The other element I want to address is again the accuracy 
of the data and the impact upon the Bureau. And as we know, it 
would be a short-form item now; and I am concerned about not 
only the accuracy of the responses, but the fact we may have 
nonresponse followup, which is a very costly element of the 
entire process.
    And more importantly, since I represent people who actually 
do the redistricting, we need good data, and I see this as a 
potential problem from not only the Bureau standpoint of their 
reputation, but also the inevitable litigation over the whole 
process.
    And the more important question from a redistricting 
standpoint is, if we in fact exclude citizens for 
apportionment, what happens at the State and local level? There 
is some rationale that in fact whatever is used for 
apportionment at the local level must basically follow the 
census, but that is because that has always been determined to 
be that it is basically based on population.
    I believe some of the other panelists, the scholars panel, 
I guess, will address this to some degree as well. Thank you.
    [The prepared statement of Mr. Bensen follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.017
    
    [GRAPHIC] [TIFF OMITTED] T6074.018
    
    [GRAPHIC] [TIFF OMITTED] T6074.019
    
    [GRAPHIC] [TIFF OMITTED] T6074.020
    
    [GRAPHIC] [TIFF OMITTED] T6074.021
    
    [GRAPHIC] [TIFF OMITTED] T6074.022
    
    [GRAPHIC] [TIFF OMITTED] T6074.023
    
    [GRAPHIC] [TIFF OMITTED] T6074.024
    
    [GRAPHIC] [TIFF OMITTED] T6074.025
    
    [GRAPHIC] [TIFF OMITTED] T6074.026
    
    Mr. Turner. Mr. Camarota.

                  STATEMENT OF STEVEN CAMAROTA

    Mr. Camarota. Thank you, Mr. Chairman and members of the 
committee. I would like to thank you for having me testify on 
immigration and reapportionment or apportionment.
    The United States, of course, is currently experiencing the 
largest sustained wave of immigration with 1\1/2\ million legal 
and illegal immigrants settling here. The total foreign-born 
was 31 million in the 2000 census, including both citizens and 
noncitizens. Data from 2005 show that it has probably reached 
about 36 million.
    Now, there is an unfortunate tendency to see this 
immigration and see immigrants one-dimensionally, as only 
workers or as only users of public services and welfare. But 
immigrants are much more than this; they are human beings. As a 
result, they have wide-ranging economic, cultural, demographic, 
national security and political effects on our country.
    If you take nothing else away from my testimony, it should 
be that allowing in large numbers of people, even as guest 
workers or just tolerating widespread illegal immigration, has 
broad-ranging effects on our society that go well beyond the 
usual discussion about jobs and welfare and so forth. And one 
of those impacts is on the reapportionment of House seats.
    Let me give you some of the overall numbers quickly. The 
2000 census showed roughly 19 million noncitizens. Most 
estimates suggest that 7 or 8 million of these noncitizens were 
illegal aliens and roughly 1 million were on long-term 
temporary visas. All of these noncitizens have consequences for 
apportionment because, as we have already discussed, seats are 
apportioned to each State in the House based on its total 
population, and counting the noncitizens and, of course, 
noncitizens are not evenly distributed throughout the United 
States.
    Let me give you one statistic. In the 2000 census, half of 
all noncitizens lived in just three States. Now, in a report 
published by the Center for Immigration Studies, we calculated 
the impact, as others have talked about here as well; the 
report is available over on the table. My weather-beaten table 
over here that didn't survive the trip to Capitol Hill shows 
the States that lost. We will run through them briefly.
    The inclusion of noncitizens in the census caused Indiana, 
Michigan, Oklahoma, Pennsylvania and Wisconsin each lost a seat 
that they had prior to 2000, while Montana, Kentucky and Utah 
each failed to gain a seat they otherwise would have had. We 
also found that of these nine seats, four were redistributed by 
the illegal aliens. Indiana, Michigan, Mississippi, and Montana 
each had one fewer seat because of the inclusion of illegal 
aliens in the census. The big winner, of course, is California.
    Now, because of family relationships and existing cultural 
ties, immigrants will tend to remain concentrated for some 
time. They will slowly spread out in the country. Now, that 
fact along with the fact that immigration levels remain so high 
means that the noncitizen population is going to also remain 
high for some time, assuming we don't change U.S. immigration 
policy or begin to enforce our immigration laws.
    Now, a 2002 report, for example, found that if all 
noncitizens who are eligible to naturalize, that is, to become 
citizens, were naturalized tomorrow, there would still be 15 
million noncitizens in the United States. Now, one of the key 
controversies associated with apportionment caused by 
noncitizens, or reapportionment caused by the presence of 
noncitizens, is this fact: It clearly takes away representation 
from States composed largely of citizens.
    Of the nine States that lost seats because of the presence 
of noncitizens in other States, only 1 in 50 residents was a 
noncitizen in 2000; in contrast, 1 in 7 residents is a 
noncitizen in California, the big winner. As a result, as we 
have already talked about, it often takes relatively few votes 
to win some of these noncitizen heavy districts. In fact, it 
only took about 68,000 votes to win the average California 
district in 2002, where it took over 100,000 votes to win the 
average district in the States that lost seats.
    Now, I will leave the constitutional issues to others. Let 
me touch on some of the practical issues with excluding 
noncitizens. To exclude them would require the census to move 
the citizenship question from the long form, which only about 
15 percent of the population receive, or one-sixth of the 
population, to the short form which everyone gets. Now, it 
takes a long time to implement that kind of change, so we need 
to think about that. And there is also the question of 
accuracy.
    Let me conclude by saying, it should be obvious a large 
noncitizen population is an unavoidable product of large-scale 
legal immigration and widespread toleration of illegal 
immigration. If you want to avoid this situation, it seems the 
obvious thing to do is change immigration policy. Thank you.
    [The prepared statement of Mr. Camarota follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.027
    
    [GRAPHIC] [TIFF OMITTED] T6074.028
    
    [GRAPHIC] [TIFF OMITTED] T6074.029
    
    [GRAPHIC] [TIFF OMITTED] T6074.030
    
    [GRAPHIC] [TIFF OMITTED] T6074.031
    
    [GRAPHIC] [TIFF OMITTED] T6074.032
    
    [GRAPHIC] [TIFF OMITTED] T6074.033
    
    [GRAPHIC] [TIFF OMITTED] T6074.034
    
    [GRAPHIC] [TIFF OMITTED] T6074.035
    
    [GRAPHIC] [TIFF OMITTED] T6074.036
    
    Mr. Turner. Mr. Gonzalez.

                 STATEMENT OF LAWRENCE GONZALEZ

    Mr. Gonzalez. Thank you, Mr. Chairman and distinguished 
members of the subcommittee. Thank you for your invitation to 
testify regarding House Joint Resolution 53.
    Our fund is a nonprofit, nonpartisan organization that 
empowers Latinos to participate fully in the American political 
process from citizenship to public service. It includes more 
than 6,000 Latino elected and appointed officials nationwide.
    Because of our longstanding work on promoting a full 
enumeration of the census, we were recently appointed by the 
U.S. Secretary of Commerce to serve as a member of the 2010 
Census Advisory Committee. Member organizations of the 2010 CAC 
play a critical role in advising the Census Bureau on how it 
can effectively and effectively accomplish the goals and 
objectives. It is from our extensive experience that I discuss 
with you today what we believe would be the detrimental impacts 
of H.J. Res. 53 on the efforts to fully integrate the second 
largest population group into our political system.
    The passage of this resolution would serve to isolate 
segments of society and send a message that only U.S. citizens 
have a right to be heard by our government and elected 
officials. Omitting noncitizens from the traditional census 
count contradicts the body of the U.S. Constitution, as well as 
the 14th amendment which specifically requires that States not 
discriminate against persons in their jurisdictions.
    Congress does not just represent citizens. Our Federal 
elected officials represent all persons, particularly children, 
who have not yet reached the age to vote, and women, who did 
not have the right to vote until passage of the 19th amendment 
and countless other groups of residents of the United States.
    Congress also represents the thousands of our American 
soldiers offering their lives to protect our Nation who are not 
yet citizens but are lawful, permanent residents. Surely these 
men and women in uniform are entitled to be represented by the 
country for which they are willing to sacrifice their lives.
    This is dangerous ground when we decide to classify slaves 
as not being whole persons, but three-fifths of a person. This 
amendment would determine that members of our society who are 
not yet citizens are also not persons in the eyes of the law. 
This is fundamentally contrary to our values as Americans.
    Congress has considered such changes to the Constitution 
before and has rejected them each time, deciding instead to 
embrace the principles established by the Framers of the 
Constitution that the U.S. House of Representatives represents 
all persons residing in this country, not just a few with 
rights.
    In listening to the discussions and the presentations of 
research surrounding the introduction of H.J. Res. 53 much of 
the debate is focused on the number of undocumented immigrants 
and their impact on political representation. It focuses on 
winners and losers in political terms.
    For example, an analysis by the Congressional Research 
Service from May 2005 indicates that if only citizens were 
counted in the 2000 census, California, Texas, New York and 
Florida would have lost congressional representation rather 
than gained. Because of the large undocumented population, so 
the debate goes, and all persons rather than citizens were 
counted, several other States lost representation. A discussion 
about counting only citizens is particularly disheartening when 
viewed in the context of potential Latino political progress.
    Let me offer the members of this subcommittee another 
perspective, a perspective that seems to get lost in the 
emotional debate about illegal immigration and one that our 
organization cares very deeply about. Last year our 
organization completed an analysis of the population estimates 
of legal permanent residents eligible for citizenship, that was 
produced by the Urban Institute demographer Dr. Jeffrey Passel. 
These estimates reveal that one out of two of the Nation's 
legal permanent residents eligible for U.S. citizenship were 
Latino, 4.2 million. Estimates were produced for Latino legal 
permanent residents and all legal permanent residents, which 
totaled 7.7 million eligible to become citizens.
    Since much of Dr. Passel's estimates are based on Census 
2000 data, we believe the overall number of LPRs eligible for 
citizenship may now be approaching 10 million, with nearly half 
of those being Latino. According to our analysis, most of the 
eligible Latino legal permanent residents are in States that 
are traditional Latino population centers. About 77 percent of 
the Nation's total live in California, Texas, New York, 
Florida, Illinois, New Jersey or Arizona. This is important to 
note in light of the CRS analysis.
    While we do not dispute the fact that there are large 
undocumented populations in these States, our analysis shows 
that there are also many immigrants poised to become citizens. 
If the goal of H.J. Res. 53 is to shift political power away 
from States that have large concentrations of undocumented 
immigrants, the reality is these States also have hundreds of 
thousands of immigrants who are law-abiding citizens who have 
played by the rules and are preparing to become full 
participants in this Nation.
    In conclusion, we agree with Representative Miller's public 
statement that H.J. Res. 53 and this discussion today is about 
the concept of one person, one vote. If you are a person in 
this country, you should be counted. While the Latino community 
continues on its path to full political engagement and 
representation, we have not yet reached that goal, and we will 
not reach it without the continued counting of all persons that 
reside within the United States.
    Thank you.
    [The prepared statement of Mr. Gonzales follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.037
    
    [GRAPHIC] [TIFF OMITTED] T6074.038
    
    [GRAPHIC] [TIFF OMITTED] T6074.039
    
    [GRAPHIC] [TIFF OMITTED] T6074.040
    
    [GRAPHIC] [TIFF OMITTED] T6074.041
    
    Mr. Turner. We will begin our questioning of this panel 
with Congresswoman Miller.
    Mrs. Miller. Thank you. Thank you, Mr. Chairman; I will be 
brief. Again, I can't tell you how much I appreciate your 
holding a hearing on this, because I do think it is such an 
important issue. I would first start with Mr. Bensen of the 
Polidata Co. You have a political perspective, I think, on what 
all this means.
    And I do appreciate that, because it will have certainly an 
impact, but I do not think this can be viewed in a partisan 
way. From a political standpoint, I do think that the shift 
should be to shift political power from noncitizens to 
citizens.
    But you also mentioned what would happen if we were to do 
this and how it would impact the States, and as you mentioned, 
historically, it has been the practice of the States to 
apportion based on sort of taking the ratcheting off of what is 
happening at the Federal level.
    Do you have any comments whether you think it would be 
inappropriate for the States to apportion their State senate 
seats and State house seats based on citizenship as well?
    Mr. Bensen. Well, there is some precedent for using 
something other than population as a basis for apportionment in 
legislatures. For instance, Hawaii at one time used registered 
voters. The State of Vermont used registered voters at one 
time, as well; and several States--at least Kansas, I know; I 
believe another State now--also excludes military and students 
from their apportionment base. But again the degree to which 
this has been addressed by the courts, and the Supreme Court in 
particular, has largely rested upon the assumption that 
population is the touchstone. Regardless, whatever basis the 
State uses should track the Federal census.
    But again the trick there is whether that is because it's 
the Federal census and it has done the best or because its 
population base is kind of a mixed bag, but it's more of the 
latter.
    The question really is whether or not that can be done 
because the accuracy of the data requires at the Federal level 
that block level data reflect noncitizen status. Redistricting 
people are unique in the census user community, shall we say, 
in the sense that they are really the only users of the block 
level data. When we look at the military--and in fact in 1990 
and 2000 the military were added on to the States' resident 
population for apportionment of the U.S. House. They were then 
excluded from the actual districting process because there is 
no geographic precision as to where these people live.
    That is not going to be the case with the noncitizen 
aspect. We would need to know exactly each block, which again 
raises a privacy issue to some degree as well because a census 
block could be two, three or four people, not just a city block 
with 100 houses or something. So there is some question as to 
whether that could be done.
    I am not saying it can't be, but the question really more 
so in that regard is whether or not the States are going to 
have an apportionment base that gives them that operation.
    Mrs. Miller. I appreciate that. I think the operative 
phrase here is that they do have the option. I am a big 
supporter of State's rights, and I think it is important that 
every citizen is counted. As you said, some of them are looking 
at registered voters. Well, what about people 18 or younger or 
convicted felons; they are still citizens of this Nation. I 
think they need to be counted certainly for these purposes.
    I would also make a comment that I think if you are a 
noncitizen serving in the armed services, which does happen 
now--and we obviously salute everybody that wears a uniform for 
America--in those cases, I think it would be very appropriate 
for us as a Nation to expedite their citizenship process, and 
this is something that we need to pursue as well.
    Mr. Gonzalez, I was trying to take notes as you were 
talking there. You did testify that the passage of the 
resolution would send a message that only U.S. citizens would 
have a right to be heard by our government and elected 
officials. Do you think it is the purpose of representative 
democracy to represent citizens or be responsive to every 
person that is in the country, even though those that are here 
illegally, do you think it would be appropriate then for us to 
allow the right to vote to people who are here illegally?
    Mr. Gonzalez. No, absolutely not. I do think that they 
should have a level of representation according to the 
Constitution that all persons should be represented, but in 
terms of undocumented aliens voting, absolutely not.
    Mrs. Miller. I appreciate that. And so, in my mind, I guess 
my thought process would be, if they already really have the 
right to vote based on our current system, based on what is 
happening with congressional representation, as I have 
mentioned and gone over these statistics, you have the illegal 
immigrants or noncitizen population in California that has more 
impact on the Presidential election than it does in 20 States 
and the District of Columbia.
    Again, when we are voting on issues like border security, 
what have you, and illegal immigrants already have essentially 
the right to vote--because they are impacting legislation, that 
is happening. You have no problem with that, though?
    Mr. Gonzalez. I wouldn't say I have a problem with it. I 
just think there are other decisions being made by Members of 
Congress and elected officials that do impact the way the 
broader society views immigrants in general, and I don't know 
that necessarily our society differentiates.
    I think it is very similar to this overall immigration 
reform debate, where it is fine to talk about border security 
and all of that, but often from the Hispanic perspective what 
people hear is anti-Hispanic. So there's not this real 
differentiation. They look, see Hispanic, you must be illegal, 
you might be. We don't know, all we know is, we are against 
this. And that is the message being sent and that is our 
concern more than anything.
    Mrs. Miller. I appreciate that. We certainly do not want to 
send that message. I know I do not.
    As I mentioned to you, in southeast Michigan, principally 
because of the auto jobs, almost every ethnic group around the 
planet has come and has been a wonderful part of the fabric of 
our society there. And that is so with Hispanics and almost 
every ethnic group that you can think of. I think we have the 
highest Arabic population in the Nation, and it makes for a 
wonderful culture there and we do not want to send a message of 
anti-immigration.
    I think we all need to make certain that we continue to 
welcome immigrants to this Nation. It really is what has been 
the backbone of our Nation, makes us strong. I do not believe 
that this resolution would change that in any way.
    Thank you very much, Mr. Chairman.
    Mr. Turner. Mrs. Maloney.
    Mrs. Maloney. Thank you, Mr. Chairman, and I thank all of 
the panelists for your testimony.
    Mr. Bensen, on page 6, point one of your testimony, you 
testified that it would, in fact, be very difficult to count 
only citizens in the decennial census and would likely result 
in a failed census. And I quote from your testimony: I believe 
it is not possible that the data collected will meet the high 
threshold of accuracy that is required for the apportionment 
process.
    Could you elaborate for us in more detail of why you 
believe that the data collected for a citizen-only census would 
not be accurate enough for apportionment purposes?
    Mr. Bensen. Sure. First off, most of what we know about 
noncitizen aspects--and it is certainly, most of everything I 
talked about noncitizen aspects is from the census and from the 
not short form but the long form--it is sample data. And if 
there is anything that those of us working in redistricting 
have learned over the last decade, we can't use sample data for 
the purposes of apportionment.
    So, right away, there is a problem. We can't rely upon the 
current information we have. And all of these estimates are 
based upon that sample data.
    The other aspect is the inherent bias in a respondent of 
anyone to a survey, in essence a census, as to the kind of 
social and political mores. It seems better to say you are a 
citizen, so many people will say they are a citizen when they 
are not. Or, on the other hand, they may feel a chilling effect 
in it and not answer at all. If they--in the old days, 1990 or 
2000, had they not answered that question, in all likelihood, 
it would have been filled in by imputation because it was a 
long-form question. It was not a critical data element. By 
transmogrifying the status of it from an informational piece of 
information into the legal aspect of whether or not it is going 
to have an impact on apportionment, it changes the whole 
character of it.
    And I think it has an inherent bias. It has a tendency to 
be nonresponsive, and therefore, the Bureau would have to spend 
more money to go and find out whether in fact these people were 
citizens. And then, again, it is not the Bureau's job to 
determine whether or not they are citizens. Everything the 
census form collects and everything that we know from the 
census is self-response data. There is no showing your passport 
to anyone. It is what you fill out. The same thing with all the 
race and ethnic data. It is what you put down as to whether you 
are from the Ukraine or whatever. It is not a thing that the 
Bureau can verify, and I don't think they have the resources or 
should be asked to verify.
    Mrs. Maloney. Thank you for your statement.
    We have talked a great deal today about apportionment. But 
the census really is a picture of America. And it is used for 
many, many purposes; research, allocation of resources. And I 
believe that is why our founding fathers had it based on 
people, the amount of people. There are areas where there are 
people on the road to becoming citizens and so forth. Counting 
them accurately is very important, not only for business--
business relies very heavily on census data for projections--
and certainly city governments and State governments for 
purposes of services, needs, infrastructure, schools, 
hospitals. All of this is very important data that I would just 
like to open it up to any of you to answer.
    What would be the impact if you started excluding large 
swaths of population and saying, they're not going to be 
counted? Then you are not going to have the data that gives us 
an accurate picture of who we are as a Nation, where our needs 
are, where the trends are, where we are going, certainly who is 
in the country, what their ages are. So I would like to open it 
up for anyone to comment on that.
    Mr. Bensen. I will be brief about it and move on here. 
First off, we have to remember that the constitutional purpose 
of the census is for apportionment. And for most of the history 
of the census, there really were no other questions asked, all 
the other fun socioeconomic data that we get we didn't have 
before.
    But the other thing really is it goes back to the question 
I was talking about with with Congresswoman Miller which is, 
what will the Bureau provide to the States? If the Bureau says 
that since its subjective purpose is to count people for 
apportionment, and the constitutional amendment says you will 
only count citizens, there is no reason for the Bureau to 
provide us with that other information for noncitizens.
    On the other hand, there is no prohibition, I suppose, in 
the sense that they could count citizens, count noncitizens and 
provide separate sets of data for both. But that is a whole 
bigger question as to operational capabilities.
    Mr. Camarota. On the specific question of, if we moved the 
specific question of citizenship from the long form to the 
short form, it probably wouldn't have that much impact, if any, 
on response rates just by itself to simply ask people if they 
are citizens. Now but that assumes that the current regime, if 
we were to actually begin to enforce our immigration laws, and 
then people were to get a survey asking them whether they were 
citizens, then maybe that could have an impact.
    Research generally shows very little reluctance on the part 
of illegals generally. We think that--and this is based on work 
done at the Urban Institute and the Census Bureau--we think 90 
percent-plus of the illegal aliens, respond not only to the 
census but other surveys like the current population survey. 
That is how we get demographic information on illegals. The INS 
has also done estimates on how many illegals are in the census. 
And again, it looks like 90 percent-plus.
    So, right now, asking citizenship--and that is, again, all 
from surveys that ask whether you are a citizen--it doesn't 
appear that people are reluctant to give us that information. 
But, again, if we try to enforce the law and people got that 
question, then there might be some impact.
    Mrs. Maloney. But what you are saying, how in the world 
would the Bureau distinguish between a citizen and noncitizen? 
Obviously, many people will say they are citizens whether they 
are or not. So, how would the Bureau distinguish?
    Mr. Camarota. I think, right now, just like we take 
everyone's word if you say you are a particular race or an 
ethnicity, even though we know from prior research that people 
give different answers to that question sometimes--the Census 
Bureau has found it can't even get respondents to get the same 
answer on the race and ethnicity question the same way each 
time it asks. But we just accept it, whatever anyone says. So 
you can just accept the census question on citizenship.
    Now, people who have tried to look at the actual number of 
citizens trying to look at administrative data and figure out 
how many citizens there are find that, in general, most 
groups--it is not very slated--among Hispanic immigrants there 
is a tendency to overstate citizenship, particularly among 
Mexican immigrants who may be legal residents but confuse that 
with citizenship, we are not sure exactly what is going on. 
But, in general, the 18 or 19 million noncitizens in the 2000 
census isn't that far off.
    And, again, there are lots of other questions that we use 
where we just take people's word for it when they say their 
race. And, again, that stuff is not set in stone, so you could 
just ask and be done with it that way.
    Mr. Gonzalez. The other thing I would add, I think it 
raises some privacy issues, and we've been down that road with 
the Census Bureau. When you start to ask people mathematical 
outcome status, you know, you send out messages that 
information that is received by the census is private. I think 
we saw a situation not too long ago with Arab Americans where 
data was released. So I think it raises that issue as well.
    Mrs. Maloney. I do also, Mr. Gonzalez, know that, in my 
office, there are numerous legal immigrants on the road to 
citizenship. And there are many hurdles they have to go 
through. And would this proposal disenfranchise that group that 
is on the road to citizenship?
    Mr. Gonzalez. I think folks clearly understand the 
difference between being illegal and being a U.S. citizen and 
whether or not they are not legal, particularly from a Latino 
perspective.
    Mr. Bensen. Could I add one clarification? We have talked 
mathematical outcome short form/long form again. I think we 
have to have a mind shift here which is--someone can correct me 
if I'm wrong--but my understanding is that the current 
budgetary situation is, we will in fact have an ACS for the 
coming years. We will not have a long form.
    So the only census form that will come out in 2010 will be, 
in essence, the short form. So whatever happens here if this, 
in fact, is adopted and takes effect before then, it would have 
to be on the short form, which does address some of the privacy 
concerns that were mentioned here and I addressed earlier as 
well.
    But I think we have to get a mindset here which is, right 
now, we will have all this information from noncitizens from 
ACS, and we will have it every year, which is, in a sense, from 
the standpoint of the shift in the population more interesting.
    Mrs. Maloney. That is an important contribution, but as you 
said in your testimony, it will not answer the accuracy 
question.
    Mr. Bensen. I was just trying to clarify----
    Mrs. Maloney. The accuracy question is the question. And as 
you pointed out in your testimony, it is a huge problem, huge 
challenge. And if you can't be accurate, what do you have?
    Mr. Bensen. We could not use the ACS data for 
apportionment. That would only solve the informational aspects 
of it.
    Mr. Turner. Thank you. As I stated in my opening comments, 
the purposes of this hearing is informational, to let people 
know that this is the manner in which apportionment is done and 
to have an understanding of the possible impacts subject to 
passage of the constitutional amendment proposed by 
Congresswoman Miller.
    With that, I have basically five things that I am hoping we 
can leave this hearing with, and I am going to go through four 
of them and ask the panelists to see if I can get consensus 
that we all agree on at least these topics. And basically, it 
doesn't matter what side of the issue you are on. It doesn't 
matter if you think we should only count the citizens or if you 
think we should, in 2010, count persons or it is a good thing 
that we count persons. Here is a mathematical equation and a 
mathematical outcome, so it is not relatively subjective as to 
its impact.
    So I would like to go over some of those. The first one is 
to followup on Congresswoman Miller's question to Mr. Gonzalez, 
and that I want to ask the other two witnesses, and that is, 
your belief that noncitizens should not be allowed to vote. 
Would you confirm that your belief is similar to Mr. Gonzalez?
    Mr. Bensen. Well, certainly, yes, my position is----
    Mr. Turner. This is an easy one.
    Mr. Bensen. My position is perhaps more adamant than that. 
I have always had a problem with the fact that noncitizens 
indirectly vote for Presidents.
    Mr. Turner. We are going to get there. But on a straight 
direct vote, your answer would be no?
    Mr. Bensen. Yes.
    Mr. Camarota. My answer would be as well. Voting should be 
reserved for citizens.
    Mr. Turner. The second issue--this is a mathematical one 
and not a value statement--is that the counting of noncitizens 
dilutes the vote of citizens. We have the maps here that show 
that coming up--and I will use my State--in 2010, Ohio is 
slated to lose two Members of Congress. If the constitutional 
amendment was passed, Ohio would, in 2010, by current 
projections, gain a Congressman--no?
    Mr. Bensen. It would only lose one.
    Mr. Turner. It says plus one. So we are going to lose one?
    Mr. Bensen. Now, this is in comparison to whether the 
citizens were in or not. So in other words, Ohio would only 
lose one seat.
    Mr. Turner. So then we are to subtract these two, not add 
them together. So Ohio would be ahead by not having lost one?
    Mr. Bensen. Correct.
    Mr. Turner. Having lost another one. So the fact that we 
would go from losing two to losing one shows that, as a State, 
that our vote in Congress and Ohio is diluted by the fact that 
noncitizens are counted in other congressional districts and 
congressional representation in seats move.
    So the question is, do you agree that counting noncitizens 
for the purposes of apportionment dilutes the votes of 
citizens? Mr. Bensen.
    Mr. Bensen. Yes.
    Mr. Camarota. Mathematically, the case, yes, especially in 
a low-immigration State like Ohio.
    Mr. Gonzalez. No.
    Mr. Turner. That is why I was hoping to go through these in 
that how, could you explain to me if my State is going to lose 
votes in Congress--that means less chairmanships, less members 
on committees and less votes--and other States are going to 
gain votes in Congress, based on counting noncitizens; how is 
it that the counting of noncitizens doesn't dilute the voting?
    Mr. Gonzalez. Other States simply have larger--to compare a 
State like Ohio and a State like California I think is 
comparing apples and oranges, or to compare a State like Ohio 
with a State like Texas just in terms of the sheer size of 
those kinds of States, regardless of the undocumented 
population, they would still have a larger vote and a voice. I 
mean, every citizen in the United States has a vote and a voice 
the day that they walk into a polling place and cast their 
ballot.
    Mr. Turner. But their allocation to congressional districts 
are diminished by the counting of noncitizens. We have the 
charts here that shows in the States that are listed that, as a 
result of the counting of noncitizens, in Congress, the 
citizens that live in those States have less representation 
here. That means, when a matter comes to the floor, their State 
has less of a vote because of the counting of noncitizens.
    In my view, that dilutes the vote of the citizens. Whether 
you are for that or against that, I would think that you would 
mathematically have to agree that is occurring.
    Mr. Gonzalez. OK, I will go there with you. I will go down 
that road with you.
    Mr. Turner. So you would agree then that it does dilute 
their vote in Congress?
    Mr. Gonzalez. In Congress, yes.
    Mr. Turner. The third thing is that because that allocation 
also has an impact on the allocation of the Electoral College, 
it has the potential to impact the outcome of Presidential 
elections by counting noncitizens for allocation of the 
Electoral College. Mr. Bensen, do you agree?
    Mr. Bensen. Definitely, yes.
    Mr. Camarota. Undeniably the case, yes.
    Mr. Gonzalez. Yes.
    Mr. Turner. Because of two and three that we just went 
through, it seems to me that goes to the inherent issue in the 
constitutional convention in that it impacts the balance of 
power between the States. Some States have greater influence in 
Congress than other States as a result of the counting of 
noncitizen populations within their borders. Mr. Bensen.
    Mr. Bensen. Yes.
    Mr. Camarota. Yes.
    Mr. Gonzalez. Yes.
    Mr. Turner. I am going to give one more discussion on what 
I consider the fifth topic or my fifth goal for this hearing, 
and that is the issue of, how would--if this constitutional 
amendment were to pass, how would it be implemented? And we 
have heard some of the discussion of the difficulties of 
accomplishing that. And I want to give each of you an open 
opportunity to express your opinions and your views on, if the 
constitutional amendment passed, how it would have an impact on 
the administration of the census and the impact it would have 
on communities as we attempt to determine citizenship. We will 
start with Mr. Bensen.
    Mr. Bensen. Well, I don't see much good from the standpoint 
of the likely impact of it, aside from the point which I 
addressed which is, the operational aspects of the Bureau even 
trying to determine this and process the returns when they 
can't verify anything, going out and following up on the people 
who have not responded to the form, the entire form now, 
because they decide not to answer that question.
    Now let's assume time-wise it is implemented for the 2010 
apportionment, and it goes in. There will inevitably be 
litigation over it. However, there will have already been an 
apportionment. There will have already been districts drawn for 
the 2011 and 2012 elections around the country. Those elections 
will be entirely put at jeopardy, and our peaceful transition 
of political power may be just totally upside down.
    Mr. Turner. Mr. Camarota.
    Mr. Camarota. Well, every reapportionment involves 
litigation. If we were worried about litigation, I would say, 
we just can't have any reapportionment. But on the question of 
moving one question from the long form to the short form, 
Congresswoman Miller's proposal is not that unreasonable. It 
has one big advantage. One of the problems that the Census 
Bureau--and I do work for them--that they face is it is very 
hard to estimate immigration. We don't know how many people 
leave and come and go and that sort of thing. If we have that 
question on the short form, in other words, everyone was asked 
every 10 years, it would probably be very helpful in terms of 
our migration estimates so that, in between the census, it is 
conceivable that will actually improve our estimates for things 
like the current population survey and the American community 
survey which we are not sure how to weight right now because, 
quite frankly, we are not sure how many people are coming and 
going, especially illegal. The census, by asking everyone that 
citizen question, would allow us to identify the foreign born 
every 10 years. And it might improve the quality of our data 
between the census. But it may also have the effect of 
discouraging some people from responding.
    There isn't much evidence right now that asking that 
question is a problem. In my work for the Census Bureau, I 
interview people who actually survey immigrants for their 
American community survey. And the citizenship question 
sometimes causes some confusion. There is sometimes some 
reluctance. But, in general, people seem willing to answer it 
right now. And I think that would probably be the case if we 
moved it to the short form. But if we actually began to enforce 
our immigration laws, then that might change. Then people might 
not be. I think that is a question that we are not sure.
    But I don't see it as quite this terribly onerous thing. I 
think it can be done. And then we just take people at their 
word, just like we take people at their word about their race, 
even though we know from prior research people don't always 
give the same answer on race and ethnicity. We just take them 
at their word. That's the way I think it could work.
    Mr. Gonzalez. The only thing I would add, Representative, 
is--I'll let the professionals at the Census Bureau answer as 
far as operationally. I would just go back to the privacy 
issue. I think from the work that we do on the census, 
particularly census 2000 and 1990, I think it would discourage 
people. There would be issues on, you know, what exactly--why 
are they asking these kinds of questions, what it means, so 
there would be a much larger outreach effort that needs to be 
done in terms of trying to get at the answers that they would 
be requesting.
    Mr. Turner. Thank you.
    Mr. Dent.
    Mr. Dent. Thank you, Mr. Chairman.
    Mr. Bensen, I think I will direct my question to you. I was 
reading through your data, and in my State of Pennsylvania, we 
often talk about the term brain drain, that we have a hard time 
retaining citizens who are between the ages of about 21 to 39, 
the second largest elderly population in the Nation as a 
percentage of the population after Florida.
    And I guess what I am trying to understand is, how much of 
the loss of congressional representation in States like 
Pennsylvania and Ohio and Michigan, for example, is caused by 
that brain drain and simple population migration from the 
northeast, Midwest and to the south and west versus noncitizens 
being counted over these many decades. As I said, my State, 
probably 1930's, had well over 30 Congressmen. In 1960, it was 
27, I believe. And today, it is 19. And I am trying to get a 
sense, historically, why did we lose all these seats, and how 
much of it is attributable to noncitizens being counted in 
these high-growth States?
    Mr. Bensen. Pennsylvania, I would have to double check, but 
it is unique in the sense it has lost at least a seat in 
Congress in each of the last----
    Mr. Dent. We lost two in 2000, two in 1990 and probably in 
1980 as well.
    Mr. Bensen. Historically, for several decades, it has 
always lost one or two seats.
    Mr. Dent. And the good news, according to this data, we are 
only going to lose one.
    Mr. Bensen. First off, remember that a lot of the 
noncitizen stuff we have really--again, since 1980, it was only 
3 percent of the population that were noncitizens. So a lot of 
that, historically, was not related to that at all. For 
Pennsylvania, it is not the predominant factor. The predominant 
factor is the brain drain. It is just people leaving the entire 
region, not necessarily Pennsylvania but just leaving the 
region. This is kind of like another little insult. We are 
having trouble already, but now we are going to lose this as 
well.
    Mr. Dent. And I guess the question is, as you know, there 
is discussion in this building about the guest-worker programs. 
Do you think that, if we did have a guest-worker program in the 
United States, that those guest workers would 
disproportionately reside in States with large noncitizen 
populations like those in California and Texas and elsewhere?
    Mr. Bensen. I am certainly not an expert on that, but 
certainly that would seem to be the case.
    Mr. Camarota. Sure, certain States are attracting 
immigrants. There is no reason to expect a change in that in 
the immediate future. Though, over the long-term, all the 
evidence would project that over the next 50, 100 years, 
immigrants and their descendants will spread out. But if we 
were to turn all the illegal aliens in the United States into 
guest workers somehow tomorrow, they would continue to likely 
reside, and there would be some movement thereafter, and it is 
important to note they almost certainly would be counted in the 
census.
    Mr. Dent. You believe, if we did have a guest-worker 
program, they would be counted in the census as people?
    Mr. Camarota. In the last census, we counted over a million 
people who were guest workers and foreign students by 
everyone's estimates, Urban Institute's, Census Bureau, INS, 
and in addition to that, we counted 7 or 8 million illegal 
aliens. So if we turned them into guest workers--and that 
population is now probably about 11 million illegal aliens, 
maybe 12--we can expect that some 90 percent of these newly 
legalized or guest-workerized illegal aliens will also respond 
to the census. Congressional seats will then be drawn for them, 
but of course, they can't vote, and all the issues come up. And 
that is an important thing to always keep in mind, that even a 
guest-worker program has profound consequences for the United 
States, including political representation outside of the work 
force.
    Mr. Bensen. One other thought, just to clarify what he is 
saying about the 100 years out, in each of the four censuses 
that I looked at, the 1980, 1990, 2000 and projection for 2010, 
not only the number of seats that were affected but the number 
of States that were affected has risen a lot. And in fact, I 
did a couple of different scenarios for 2010, and I had even 
more States being affected. So the fact is, as we know, since 
many of the noncitizens are Mexicans or of Hispanic origin, 
Hispanic-origin people, unlike African-Americans, are scattered 
all around the country.
    There are a lot of African-American communities, obviously 
largely in the south and the urban core and northeast and such, 
but Hispanics are really spread out much more. And that is part 
of the problem, from the standpoint of the impact on the number 
of States. The number of States that are likely to be affected, 
again, only one seat, will definitely increase from the 
standpoint of where the current trends are because Hispanics 
comprise the largest portion of noncitizens who are scattered 
all around the country.
    Mr. Camarota. I agree. Absent a change in the U.S. 
immigration policy, the impact will grow on a State like 
Pennsylvania, but in the very long term, we could expect that 
immigrants will become--and their descendants--more evenly 
distributed. But that is decades from now.
    Mr. Dent. Mr. Gonzalez, do you have any thoughts on this?
    Mr. Gonzalez. I would disagree. If you look at where the 
largest growth is, North Carolina, Georgia, States like that, 
that was basically the news of the census 2000 that the 
Hispanic community was no longer just in these urban areas; we 
had moved to suburban and rural areas.
    Mr. Dent. In my congressional district in Pennsylvania, we 
have a large Latino population, primarily Puerto Rican, and in 
eastern Pennsylvania, we have seen a large growth in the 
Hispanic population. But, again, it is, I guess probably not as 
many noncitizens because Puerto Ricans are, of course, American 
citizens. Well, thank you for your insights. It is very helpful 
to me.
    Yield back.
    Mr. Turner. Mrs. Maloney.
    Mrs. Maloney. I was not here when Mr. Turner asked the 
question, but I understand he had some questions about 
noncitizens diluting the votes of citizens in other States. 
Well, I would like to ask the panelists a question.
    With regard to the Electoral College, is it not true that 
the votes of people in smaller States are worth far more than 
those of larger States given the value of the two senators in 
their State representation? And isn't my vote diluted, being 
from New York, compared to someone in Rhode Island? And do the 
panelists think we should do away with the Senate because this 
dilutes the votes of people?
    Mr. Turner. Which they may be for for other reasons.
    Mrs. Maloney. So I would like to start with Mr. Bensen and 
have each one of you answer.
    Mr. Bensen. Well, the question was not exclusive. It was 
more a question, would this be vote dilution? Yes, your 
scenario would be that, yes, my home State of Vermont is 
obviously far more powerful in the U.S. Congress than your home 
State of New York.
    Mr. Camarota. Yes. The answer is obviously, big States are 
penalized in the Senate, so that there are ways in which votes 
get diluted in our system that are not related to the presence 
of noncitizens in other States. But nonetheless, the presence 
of noncitizens in other States is maybe something we can fix, 
assuming we think the Senate is OK the way it is.
    Mrs. Maloney. Well, if you are concerned about diluting the 
votes, then maybe we should do away with the Senate, too, if 
that is your concern.
    Mr. Gonzalez.
    Mr. Gonzalez. I would agree with you, again, under that 
scenario, I know that a number of our members in New Mexico 
very much enjoy the focus that has been placed upon them over 
the last few election cycles with their whopping four electoral 
votes. Absolutely.
    Mrs. Maloney. Thank you. No further questions.
    Mr. Turner. Thank you.
    We will turn to our third panel. We will thank each of you 
for participating, for your preparation and your time today.
    Our third panel includes Dr. Ken Prewitt, professor of 
public affairs, School of International and Public Affairs, 
Columbia University; Mr. Johnny Killian, senior specialist in 
constitutional law, American Law Division, Congressional 
Research Service; Mr. James Gimpel, professor of government, 
University of Maryland; Mr. Andrew Spiropoulos, professor of 
law, Oklahoma City University School of Law; Ms. Nina Perales, 
Southwestern regional counsel, Mexican American Legal Defense 
and Educational Fund.
    I want to thank each of our members of the third panel. 
They have prepared written testimony which has been submitted 
to the members of the subcommittee. They have been asked then 
to provide an oral summary of their testimony, which the 
witnesses will notice that there is a timer light on the 
witness table. The green light indicates you should begin your 
prepared remarks, and the red light indicates the time has 
expired. The yellow light will indicate when you have 1 minute 
left to conclude your remarks. Your oral testimony presentation 
will constitute a time period of 5 minutes. It is the policy of 
this committee that all witnesses be sworn in before they 
testify. If you would please rise and raise your right hands.
    [Witnesses sworn.]
    Mr. Turner. Please let the record show that all witnesses 
responded in the affirmative.
    And we will begin with Dr. Prewitt.

  STATEMENTS OF KENNETH PREWITT, CARNEGIE PROFESSOR OF PUBLIC 
 AFFAIRS, SCHOOL OF INTERNATIONAL AND PUBLIC AFFAIRS, COLUMBIA 
  UNIVERSITY; JOHNNY H. KILLIAN, SENIOR SPECIALIST, AMERICAN 
   CONSTITUTIONAL LAW, AMERICAN LAW DIVISION, CONGRESSIONAL 
  RESEARCH SERVICE; JAMES G. GIMPEL, PROFESSOR OF GOVERNMENT, 
 UNIVERSITY OF MARYLAND, COLLEGE PARK; ANDREW C. SPIROPOULOS, 
 PROFESSOR OF LAW, OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW; AND 
 NINA PERALES, SOUTHWESTERN REGIONAL COUNSEL, MEXICAN AMERICAN 
               LEGAL DEFENSE AND EDUCATIONAL FUND

                  STATEMENT OF KENNETH PREWITT

    Mr. Prewitt. Thank you, Mr. Chairman.
    Drawing on my experience as the director of the Census 
Bureau and a number of studies that I've conducted on the 
census since, I would offer cautionary comments about the 
amendment under four headings: Census Accuracy; A Census 
Endangered; A Civics Opportunity Lost; The Census and Fairness.
    I also believe, before I get to those topics, that the 
amendment runs counter to a fundamental principle that has 
guided how census-taking and democracy co-evolved starting in 
1790. This principle is deliberately, carefully placed into the 
Constitution by the Nation's Founders. The Founders were 
mindful that numbers were political, especially in a 
representative democracy. And because of this, they designed 
the decennial census to be the apolitical, nonpartisan starting 
point whose end points were appropriately political and 
partisan.
    This was their genius, to keep the taking of the census out 
of politics so that the results of the census could be used in 
politics. It is this principle that is at risk should this 
amendment be adopted.
    It will be widely portrayed as a political instruction to 
the Census Bureau to count in such a way that one set of 
partisan interests are advanced and another retarded. Whether 
this is the intent of the sponsors is not at issue. Motivations 
do not interest me. Consequences do.
    It is inevitable that the extensive and heated public 
debate over this amendment will endlessly repeat that partisan 
interests are behind the change in how the census is taken. 
This will erode a basic principle that was clearly of 
importance to the Founders and has served the Nation for more 
than two centuries.
    I urge the sponsors to reflect deeply before taking this 
step. There will be no turning back.
    Let me then turn to census accuracy. The proposed amendment 
will lead to a less complete and less accurate census. A 
significant number of noncitizens will not respond to the 
decennial census. Many members of the public, citizens and 
noncitizens alike, are wary about the census. I remind you of 
the privacy debate that erupted in 2000. Many political leaders 
were quick to denounce the census as a violation of privacy. 
The decennial census came to symbolize an invasive Federal 
Government.
    One Member of Congress said, ``I am happy to voluntarily 
cooperate with the government in areas where I decide it makes 
sense. Beyond that, it starts to meet the definition of 
intrusive.''
    A Senate leader advised the public to ``just fill out what 
you need to fill out and [not] anything you feel uncomfortable 
with.'' The Senate passed a nonbinding resolution urging that 
no American be prosecuted, fined or in any way harassed by the 
Federal Government for not answering questions on the census 
form.
    The privacy debate in 2000 underscores the general wariness 
in our public about what is viewed as government intrusiveness. 
The proposed amendment plays into this wariness by highlighting 
that the government has some need on a block-by-block basis to 
distinguish citizens from noncitizens. The nuanced reasons for 
this, well expressed by those who testify in support of this 
amendment, will be lost to the millions upon millions of 
Americans. This question will be treated with suspicion.
    Taking their cue from national leaders who, in 2000, said, 
``skip the questions you don't like or find intrusive,'' many 
American citizens as well as noncitizens will do just that, and 
accuracy will suffer.
    In addition, the huge partnership program that was mounted 
in 2000 to solicit census cooperation rested upon an argument 
that if you are not counted, you are not represented. Many of 
those partners will simply not step forward if this amendment 
is passed, especially, I believe, the Catholic Church.
    A Census Endangered: The Congress, if endorsed in this case 
by three-fourths of the States, can absorb, I think, some 
deterioration in quality and decide that is a worthwhile 
tradeoff to realize the purposes of the amendment.
    If, however, the Congress were to instruct the Census 
Bureau to validate the citizen status of census respondents, 
much more of the data quality is at stake. There is nothing in 
terms of the amendment to suggest that this is what anyone has 
in mind. But it is foolish to expect that census-taking is 
immune from anxieties that surround such issues as undocumented 
aliens, immigration enforcement and so forth.
    I can promise you that, if the conversation moves from 
census citizen to noncitizen, to aid illegals and legals, that 
this concern will be magnified in the Congress or in the 
country.
    Finally, I would like to say this is an opportunity lost. 
Under the new terms of the census, we have a marvelous 
opportunity to teach the American public a civics lesson. I 
have in mind that promotion and advertising can emphasize the 
connection between population numbers and political 
representation. Such a message will increase public 
understanding of how our democracy works. The sequence from 
population distribution to apportionment and redistricting, and 
from there to elections, from elections to public policy is not 
well understood by the general public.
    A mobilization campaign of the scope used in 2000 could be 
a civics lesson. More ambitiously, it could be designed as a 
civics ceremony. Imagine 535 Members of Congress completing 
their census forms at the Jefferson Memorial on census day.
    The census is, in fact, the only such civics ceremony 
available to the American public. Our national holidays no 
longer perform this service. The census has the merit of being 
inclusive. Everyone is to be counted. It is hopefully 
nonpartisan. It has consequences for the fundamental workings 
of our democracy at the national, State and local levels.
    It is certainly the only civic event that has its origins 
in the Constitution. The civics lesson, of course, would be 
foregone if the census is not viewed as the nonpartisan 
starting point of political representation. And I think this 
amendment will derail that principle.
    There is also the issue of fairness; no taxation without 
representation. That argument will once again be heard. It will 
be the Boston Tea Party all over. This is clearly a no taxation 
without representation. The amendment is also a military 
service without representation, of course.
    What is special about the census is its reputation for 
advancing principles of fairness in American political life. 
This reputation rests on the deep principle that representation 
is allocated to a portion of the population size, not the 
counts to distinguish property owners from nonproperty owners, 
the educated from the uneducated, the voters from nonvoters, 
citizens from noncitizens. These distinctions have a place in 
public policy but not in the fundamental starting point from 
which all public policy springs.
    In conclusion, representative democracy has come a long way 
since 1790 when a handful of Senators and Representatives 
assembled to start the great experiment in self-government. 
Census-taking has come a long way since 1790. As anticipated by 
the Constitution, the census has carried the heavy weight 
assigned to it in what can rightly be described as America's 
longest continuous scientific undertaking.
    Census accuracy and fairness matter to this story. However, 
let us grant that a less accurate and less fair census can 
still carry the weight assigned to it by the Constitution.
    Mr. Turner. Mr. Prewitt, you need to conclude.
    Mr. Prewitt. We can still redistrict. And perhaps this is 
the price that we should pay. But I am less confident about the 
future of the census if it is thought by millions upon millions 
of Americans to have been designed to advance partisan 
interests, even if this intent is absent among the amendment 
sponsors. A census so understood will cease to command the 
respect and confidence that we rely upon. I urge the Congress 
to respect the genius of the Founders who take great care to 
separate how the census is taken from the political uses to 
which the numbers are applied. We undo their craftsmanship at 
our peril. Thank you.
    [The prepared statement of Mr. Prewitt follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.042
    
    [GRAPHIC] [TIFF OMITTED] T6074.043
    
    [GRAPHIC] [TIFF OMITTED] T6074.044
    
    [GRAPHIC] [TIFF OMITTED] T6074.045
    
    [GRAPHIC] [TIFF OMITTED] T6074.046
    
    [GRAPHIC] [TIFF OMITTED] T6074.047
    
    [GRAPHIC] [TIFF OMITTED] T6074.048
    
    Mr. Turner. Mr. Killian.

                 STATEMENT OF JOHNNY H. KILLIAN

    Mr. Killian. Mr. Chairman, members of the committee, as an 
employee of the Congressional Research Service, I am of course 
obligated to give Members of Congress objective and nonpartisan 
advice and information.
    As a consequence, I cannot address the merits of this 
proposal and say yea or nay with regard to whether it should be 
adopted, whether it should be defeated or what not. My purpose, 
as I understand it, in appearing before the committee is to 
talk about several aspects, the constitutional amending 
process, the basis in the Constitution of using the total 
numbers of the population for purposes of apportionment, and, 
if there may be some questions regarding that that would be 
raised if the amendment were adopted.
    In the first place, I think we need to notice, with regard 
to the original Constitution, and the Constitution amended by 
the 14th amendment, that with regard to the use of the total 
population for apportionment, there are two significant 
provisions in the Constitution. One is that the States 
determine the qualifications of the voters in each State. That 
is, the Constitution provides that voting qualifications for 
Members of the House and consequently the Senate and the 
electors and the Electoral College is based on the 
qualifications that each State of electors for the more 
populous House of the legislature.
    Second, there is a time, place and manner clause which 
gives the States the power to determine how and what manner the 
full details of election of Representatives and Senators, but 
it also gives the Congress the power to displace any or all of 
those regulations so that a lot of the questions that might be 
raised by the amendment, by the change from total population, 
citizen population, would of course raise questions under these 
two.
    Second, I think we need to take a look at some of the 
constitutional amendment problems that have arisen in the past. 
There is no prospect, I think, of Congress addressing most of 
those in the amendment, in the text of the amendment. The 
question simply is to evaluate how there might be questions.
    We have a prospective of time limitations for instance. The 
time limitation in this proposal is 7 years, as in previous 
amendments. It is in the proposing resolution, not in the text 
of the amendment itself. It used to be in the text of the 
amendment itself. Congress changed that when scholars began 
saying, why are you cluttering up the Constitution with things 
like time limitations? So it put in a resolution. That created 
a serious debate with respect to the Equal Rights Amendment. As 
you are all aware, the Equal Rights Amendment, as the time for 
ratification began to run, ratification was not completed, 
Congress debated and then adopted a resolution extending the 
time period to 10 years, adding on another 3 years. The 
assertion was that because it was not in the text of the 
amendment itself on which the States had acted, the Congress 
had the power.
    We don't know the correct answer to this. The expiration of 
the time limitation meant that it was never resolved by the 
Supreme Court or another body. It should, however, I think be 
of interest to the committee, to Members of Congress generally, 
in considering where the present time limitation is.
    Last, there is a question with regard to what other 
interpretive problems adoption of the amendment might raise. If 
the amendment were adopted and apportionment is based on 
citizen population, would States that do the districting be 
limited as well to total citizen population, or could they 
continue to do total population including noncitizens?
    Obviously, Congress might, by using the time, place and 
manner clause, regulate distance to some extent. Otherwise we 
are going to have court decisions running through this. 
Congress does not have to resolve this issue, but should be 
aware that, in terms of the present language of the proposal, 
that this would be raised.
    I thank you.
    [The prepared statement of Mr. Killian follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.049
    
    [GRAPHIC] [TIFF OMITTED] T6074.050
    
    [GRAPHIC] [TIFF OMITTED] T6074.051
    
    [GRAPHIC] [TIFF OMITTED] T6074.052
    
    Mr. Turner. Thank you, Mr. Killian.
    Mr. Gimpel.

                  STATEMENT OF JAMES G. GIMPEL

    Mr. Gimpel. Thank you, Mr. Chairman, for inviting me. I 
appreciate your effort to tackle a troubling issue. I have 
learned a lot from the other panelists already here this 
morning.
    As the other testimony at the hearing makes clear, re-
apportionment and redistricting based on noncitizen settlement 
patterns are profoundly affecting Congress and America's 
political process in unanticipated ways.
    Clearly, today's congressional districts are not equal in 
critical respects that matter greatly to the operation of our 
government. Consider what it takes to get elected to a seat 
where there were only 60,000 voters compared to one where there 
are eight or nine times that many to be reached in the course 
of an election campaign.
    Consider the fundraising burden alone, for example, and how 
un-equal that is. Consider also the unequal workloads of the 
Members of Congress who represent these very highly unequal 
districts. Survey data have shown decisively that citizens are 
far more demanding of Members of Congress than noncitizens, 
even after we consider the casework associated with 
naturalization and citizenship.
    As a consequence of representing a large share of 
noncitizens, one Member may have to chase only a small fraction 
of the Social Security checks that another does. One Member 
must respond to only half the amount of constituent mail. To be 
sure, noncitizens and nonvoters also contact congressional 
offices, but they do so far less frequently than citizens, 
hence even if Members of Congress do respond to noncitizen 
requests for assistance, the work loads are still highly 
unequal. One Member of the U.S. House should not have to spread 
her staff more thinly to cover her constituents' demands than 
another simply because of the presence of noncitizens in the 
apportionment base.
    Real examples are out there. So we don't have to confine 
ourselves to hypotheticals. Consider several of the immigrant-
heavy southern California congressional districts. We might 
consider the 31st, as Representative Miller did in her remarks, 
the 33rd or perhaps the 37th. In 2004, a year of record high 
turnout around the Nation, only 110,460 votes were cast in the 
33rd district contest, and the incumbent was re-elected with 
74\1/2\ percent of the vote. In 2002, the same incumbent was 
re-elected by a similar margin in a contest that saw a mere 
65,800 votes cast. In 2002, the incumbent in the 37th district 
was re-elected in a contest that saw only 88,000 votes cast. 
And in 2004, this Member ran unopposed.
    Now let's pull out two districts from Michigan and Ohio. 
Lots of districts would make the comparison, but we will pick 
two for the sake of illustration. Take the 12th District of 
Michigan and the 17th District of Ohio. Either one or both of 
these seats could be reconfigured or lost entirely in the 2010 
reapportionment simply because their constituents happen to be 
unlucky enough to be born in this country. There is something 
about our moral intuitions that just doesn't gibe with that 
outcome.
    Now both of those Members, Representative Ryan and 
Representative Levin were re-elected by solid margins, similar 
to those of their colleagues in California, but the task of 
representation and of running for re-election is very different 
from what the California Members face. Because the California 
districts contain thousands of noncitizens and the Michigan and 
Ohio districts rather few, the Midwestern districts may 
disappear in 2010 because the constituents of these two Members 
were unlucky enough to be citizens.
    A Member of Congress who receives 200,000 votes will be 
thrown out, and the one who has received only 50,000 will be 
retained only because of noncitizens in the apportionment 
phase.
    Folks, the perverse moral of the current system is clear: 
The greater the proportion of citizens in a State, the fewer 
congressional seats that State receives. You can actually 
quantify the current penalty of citizenship on congressional 
apportionment, and the precise relationship is shown in figure 
1 in my testimony. I had it on a Power Point, but we couldn't 
get it up there today. But you can see it if you turn to figure 
1 on page 6.
    Figure 1 indicates that, for every 1 percent increase in 
percentage of citizens in the State in 2000, there is a 1.7 
drop--we could round to 2--in the number of congressional seats 
the State received in the decennial reapportionment. Now, 
naturally this relationship is an artifact of where noncitizens 
flow, that is to the more populous States, but it is still very 
striking and provides a concrete estimate of the impact of the 
geographic concentration of noncitizens on a political system. 
Could it some day be the case that a congressional district is 
created that has literally no citizens inside it? None? 
Completely hollow?
    Theoretically, this is clearly possible, although a State 
legislature would surely be sensible enough to stop short of 
this. Nearly hollow districts do exist though, and the 
proliferation of such districts does tax the citizenship status 
of all Americans.
    Solutions. Well, we can pass Representative Miller's 
amendment and, you know, tough out the consequences with 
respect to census administration. I might add, by the way, that 
the census has been changed many, many times, and we have 
toughed it out in the past.
    Another solution, well, let everybody vote; let's do away 
with citizenship as a pathway to voting, give everyone the 
right to vote and forget about citizenship as a means toward 
obtaining voting rights. You know, good luck passing that. I 
don't think that is very viable.
    One thing we could do, I suppose, that Steve Camarota 
recommended in his testimony, would be to reduce immigration 
levels. That would certainly mitigate the impact at least over 
time.
    Mr. Turner. Mr. Gimpel, you're going to have to conclude 
your remarks.
    Mr. Gimpel. Or we could leave things as they are, of 
course, which is probably the most likely scenario I think. But 
I will just finish up by saying, until we decide how to address 
this serious vote-dilution problem, American voters will suffer 
from unequal representation. Congress and the executive branch 
should work together to restore fairness and integrity to the 
electoral process.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Gimpel follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.053
    
    [GRAPHIC] [TIFF OMITTED] T6074.054
    
    [GRAPHIC] [TIFF OMITTED] T6074.055
    
    [GRAPHIC] [TIFF OMITTED] T6074.056
    
    [GRAPHIC] [TIFF OMITTED] T6074.057
    
    [GRAPHIC] [TIFF OMITTED] T6074.058
    
    [GRAPHIC] [TIFF OMITTED] T6074.059
    
    [GRAPHIC] [TIFF OMITTED] T6074.060
    
    [GRAPHIC] [TIFF OMITTED] T6074.061
    
    [GRAPHIC] [TIFF OMITTED] T6074.062
    
    [GRAPHIC] [TIFF OMITTED] T6074.063
    
    [GRAPHIC] [TIFF OMITTED] T6074.064
    
    [GRAPHIC] [TIFF OMITTED] T6074.065
    
    [GRAPHIC] [TIFF OMITTED] T6074.066
    
    [GRAPHIC] [TIFF OMITTED] T6074.067
    
    [GRAPHIC] [TIFF OMITTED] T6074.068
    
    [GRAPHIC] [TIFF OMITTED] T6074.069
    
    [GRAPHIC] [TIFF OMITTED] T6074.070
    
    [GRAPHIC] [TIFF OMITTED] T6074.071
    
    [GRAPHIC] [TIFF OMITTED] T6074.072
    
    [GRAPHIC] [TIFF OMITTED] T6074.073
    
    Mr. Turner. Mr. Spiropoulos.

               STATEMENT OF ANDREW C. SPIROPOULOS

    Mr. Spiropoulos. Thank you, Mr. Chairman, and I thank the 
committee for inviting me.
    The central legal question regarding H.J. Res. 53 is 
whether such an amendment is necessary or whether such a change 
may be made by statute.
    In order to answer this question with regard to aliens 
residing in the United States, one must consider legal and 
illegal aliens separately. It is my opinion that section 2 of 
the 14th amendment stating that apportionment must be based on 
the whole number of persons in each State rather than 
citizenship requires that aliens legally residing in the United 
States be counted toward the number of persons used for 
apportionment purposes.
    The Constitution therefore must be amended if legal aliens 
are to be excluded from the number of persons counted for 
apportion purposes. The Constitution does provide, however, the 
national government some discretion to determine who is truly 
an inhabitant of a State for the purposes of apportionment.
    It is my opinion that it is within the legitimate 
discretion of Congress to instruct the Census Bureau by statute 
to exclude illegal aliens from the census conducted for 
apportionment purposes. In addition to evidence gleaned from 
the records of the framing and ratification of both the 
Constitution in 1787 and the 14th amendment, this 
interpretation is confirmed by the unbroken practice of the 
national government. With regard to legal aliens, the 
government has always sought to count all inhabitants, not only 
citizens. It has never been disputed, either by members of the 
government or legal commentators that legal aliens taking up 
legal residence in the United States are inhabitants of the 
State in which they reside. They pay taxes, may consume the 
full range of government services and, as demonstrated by the 
level of protection afforded them under the equal protection 
clause, are, except for the privileges directly flowing from 
citizenship, established members of society. This longstanding 
practice and understanding not only constitute evidence of the 
original meaning of the provisions, they should lead a 
reasonable court to presume that legal and political 
institutions and practices have been established upon the 
reasonable expectation that such practices, absent 
extraordinary circumstances, will continue.
    The question of whether the Constitution requires that 
aliens residing illegally in the United States be counted is 
far more difficult. Whether illegal aliens are necessarily 
included in ``the whole number of persons in each State'' is 
not clearly resolved by either the original meaning of the text 
or the intent of the drafters. The Framers of the provisions at 
issue did not know of or contemplate the problem of illegal 
immigration. We do know, however, that the Framers' 
understanding of ``persons in each State'' was based on the 
notion that such a person was a demonstrated inhabitant of that 
jurisdiction. This concept of ``inhabitant'' is not self-
defining. The legislature and the executive operating subject 
to that legislature's authority must define it. The census-
taking authorities in the past have exercised discretion 
regarding, for example, U.S. Military and diplomatic personnel 
residing overseas, foreign tourists and foreign diplomatic 
personnel residing in the United States. This past practice 
demonstrates that the national government has always exercised 
some discretion regarding who qualifies as an inhabitant for 
the purpose of census-taking.
    Unlike with legal aliens, one cannot conclude that illegal 
aliens must be considered inhabitants of a State. Given their 
liability to expeditious deportation, the limited 
constitutional protections afforded to them, their necessary 
avoidance of the regular interaction between residents and 
government entities and, perhaps most importantly, their 
refusal to consent to the fundamental laws and norms of this 
society, it cannot be said that the Constitution mandates that 
illegal aliens are sufficiently connected to a particular State 
to be considered an inhabitant of it.
    It is certainly true that the national government has, 
without exception, chosen to this point to include illegal 
aliens in that definition. I do not offer any opinion as to the 
wisdom of this choice or a different one. My contention is 
that, just as the government may decide that illegal aliens are 
inhabitants, so it may decide that they are not. Therefore, it 
is my opinion that the Congress may, by statute, instruct the 
Census Bureau to exclude illegal aliens from the census 
conducted for apportionment purposes.
    Thank you.
    [The prepared statement of Mr. Spiropoulos follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.074
    
    [GRAPHIC] [TIFF OMITTED] T6074.075
    
    [GRAPHIC] [TIFF OMITTED] T6074.076
    
    [GRAPHIC] [TIFF OMITTED] T6074.077
    
    [GRAPHIC] [TIFF OMITTED] T6074.078
    
    [GRAPHIC] [TIFF OMITTED] T6074.079
    
    [GRAPHIC] [TIFF OMITTED] T6074.080
    
    Mr. Turner. Ms. Perales.

                   STATEMENT OF NINA PERALES

    Ms. Perales. Chairman Turner and members of the House 
Government Reform Subcommittee on Federalism and the Census, I 
am Nina Perales, Southwest regional counsel of the Mexican 
American Legal Defense and Educational Fund [MALDEF]. We are a 
nonpartisan organization founded in Texas in 1968 to defend and 
protect Latino civil rights, including voting rights.
    Thank you for inviting me to testify regarding House Joint 
Resolution 53.
    Restricting apportionment to citizens as H.J. Res. 53 
proposes contravenes the intent of the Framers of the 14th 
amendment. Section 2, clause one of the 14th amendment, which 
was adopted to override the infamous three-fifths rule by which 
slaves were not counted as full persons for the purposes of 
apportionment, has never restricted congressional 
representation to citizens only.
    The Framers of the 14th amendment could have restricted 
representation by limiting the numbers used for apportionment 
by a variety of factors, including race, gender or nationality. 
Instead, they chose to apportion the seats in the House of 
Representatives based upon total population, despite the 
existence of a substantial foreign-born population in the 
United States in the 1860's, a foreign-born population larger 
than that in the United States today.
    Ensuring that congressional representation flows to all 
people equally is sound public policy. Each individual, 
regardless of whether he or she can currently exercise the 
franchise, should receive the benefits of representation by 
their elected officials.
    A congressional representative serves as more than just the 
voice of the people who can vote or of those people who voted 
for him or her during the last election. Congressional 
representatives serve all individuals in their districts, 
including children and other nonvoters, by bringing critical 
resources to the district and representing the economic and 
social interests of all who live in the district.
    The primary effect of H.J. Res. 53 will be to strip 
representation from U.S. citizens. It will shift congressional 
seats away from high-population States that are composed 
overwhelmingly of U.S. citizens but which also contain higher 
numbers of noncitizens than other States. Texas, my State, is 
one such State. If apportionment were conducted today based on 
total population, Texas would receive an additional 
congressional seat, and each Member of Congress from Texas 
would represent approximately 664,000 people. H.J. Res. 53 
would deny Texas that congressional seat, forcing an extra 
20,000 people into the district of each member of the Texas 
delegation. In effect, 19.6 million U.S. citizens living in 
Texas would have less representation in Congress.
    Furthermore, stripping representation from States with 
noncitizens necessarily has a disparate impact upon Latino U.S. 
citizens. More than one-half of legal immigration is family 
based. And among legal immigrants who come to the United States 
to be with their family, most are from Mexico. Because many of 
these legal immigrants are living and working today in 
predominately Latino communities across the United States, this 
measure will serve to shift representation away from States 
containing more Latino citizens and permanent legal residents 
to other States with higher citizen populations and fewer 
Latinos.
    Arizona, California, Florida, Nevada, New York and Texas 
all have in common substantial Latino populations, and all 
would be worse off with a restrictive apportionment scheme in 
which noncitizens are excluded. Those who want to restrict 
apportionment suggest that the number of voters in an election 
is primarily determined by the number of citizens in the 
congressional district. In truth, voter registration and 
turnout is by far the great determinant of the weight of a 
voter's vote, not the number of citizens residing in an 
electoral district. It is utterly groundless to suggest that 
noncitizenship is responsible for the voter turnout levels of 
U.S. citizens.
    The 14th amendment, which declared the quality of all 
persons under the law, should not be changed to restrict 
congressional representation of citizens, particularly racial 
minority citizens, based on the State in which they happen to 
live. H.J. Res. 53 serves no other legitimate policy purpose 
and places unwarranted burdens upon the congressional 
representatives in disfavored States.
    I want to add on a personal note that I am offended by the 
interchangeable use of noncitizen and undocumented immigrant in 
this hearing. To conflate those two terms suggests that all 
immigrants in the United States are criminal aliens and law 
breakers. It is offensive to me, and it is offensive to the 
Latino community. I strongly urge you to reject House Joint 
Resolution 53.
    Thank you very much.
    [The prepared statement of Ms. Perales follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.081
    
    [GRAPHIC] [TIFF OMITTED] T6074.082
    
    [GRAPHIC] [TIFF OMITTED] T6074.083
    
    [GRAPHIC] [TIFF OMITTED] T6074.084
    
    Mr. Turner. Thank you.
    And when I began my opening comments as the chairman of 
this committee, Federalism and the Census, census having the 
obligation for actually the count that results in 
apportionment, I made clear that this is an informational 
hearing, that the issues that we wanted to discuss related to 
the impact of the proposed constitutional amendment, but also 
because I truly believe that most citizens aren't aware of how 
the current apportionment process works and its impact on the 
fact that the Constitution and its application currently looks 
to persons instead of citizens.
    This is an important function that has nothing to do with 
the issue of policy. Policy is whether or not we should do this 
or should not do this, and the impacts that it would have.
    It includes the discussion of the historical perspective: 
Why did our Founding Fathers do this? What was the intent? What 
was the expectation? Was it intended? But the realty is that, 
on a nonpolicy perspective, that most of what we are talking 
about is a straight, mathematical application. The information 
aspect of what happens as a result of counting noncitizens 
versus counting merely citizens is not an issue that goes to 
policy. It is a mathematical outcome of which we should all be 
aware, whether we are for or against the changing of that 
application.
    So going to those purposes I am going to go through this 
panel in this like manner that I did the other to make certain 
that we have a narrowing of the issues because policy is very 
important and that is something that will really go beyond this 
hearing. The purpose of the hearing is to inform as to the 
application of the current method of apportionment.
    My first question goes to the issue to make certain that no 
one has any belief that there is any underlying sinister 
purpose here, and that goes to the question of asking each of 
the members of the panel whether or not they believe that 
noncitizens should be allowed to vote, my expectation being 
that we will all share the value that noncitizens should not be 
allowed to vote.
    I will begin with you, Dr. Prewitt.
    Mr. Prewitt. Correct.
    Mr. Turner. Mr. Killian.
    Mr. Killian. With one reservation, I would say. There was--
--
    Mr. Turner. Would you take the mic, please.
    Mr. Killian. Excuse me. There was the historical practice 
after the Civil War and extending into the first part of the 
20th century of a number of States, primarily Western States 
which wanted to encourage immigration into them, of allowing 
noncitizens to vote provided that they swore an oath----
    Mr. Turner. I'm not asking from a historical perspective, I 
am asking from your personal belief. You personally believe 
noncitizens should not be allowed to vote.
    Mr. Killian. As a general matter I do not believe that.
    Mr. Turner. Mr. Gimpel.
    Mr. Gimpel. I agree.
    Mr. Spiropoulos. Yes.
    Mr. Turner. Ms. Perales.
    Ms. Perales. MALDEF takes the same position but also 
recognizes that certain States and localities have exercised 
the option to enfranchise noncitizens.
    Mr. Turner. The purpose--so no one becomes confused--of 
this hearing is to discuss voting by noncitizens.
    A second issue, counting of noncitizens in the 
apportionment of congressional district results in the dilution 
of the votes of citizens in Congress. Doctor Prewitt.
    Mr. Prewitt. Yes, just as the noncounting of felons dilutes 
the vote of those who are felon districts, the noncounting of 
the young rewards those districts which have more elderly than 
the young.
    Mr. Turner. We count the young. You were good on the other 
one.
    Mr. Prewitt. No, no, no.
    Mr. Turner. In the census for citizenship.
    Mr. Prewitt. I'm saying that a district which happens to be 
composed of the elderly has its vote diluted compared to a 
district with a higher percentage of young people in.
    Mr. Turner. I understand now what you are saying.
    We have limited time.
    Mr. Killian.
    Mr. Killian. I would agree with that.
    Mr. Turner. Mr. Gimpel.
    Mr. Gimpel. Yes.
    Mr. Spiropoulos. Sure.
    Mr. Turner. Ms. Perales.
    Ms. Perales. No, the statement is not correct.
    Mr. Turner. We will get back to that then because the issue 
is a mathematical one here. If you count only citizens, first 
count citizens and noncitizens, mathematically it would have to 
be a dilution because you are spreading representation over a 
larger number. So it's mathematical, it's not a policy issue, 
not a value system, Ms. Perales. Would you still say that it 
does not dilute the vote of citizens--I'm sorry, does not 
dilute the representation of citizens in Congress?
    Ms. Perales. Respectfully, Representative Turner, Mr. 
Chairman, it is with respect to representation and not the 
vote.
    Mr. Turner. I misstated it when I restated it to you but my 
first question was representation of citizens in Congress. 
Would you agree with that?
    Ms. Perales. We would disagree because representation flows 
to all individuals, not only to voters, and thus counting all 
persons----
    Mr. Turner. I asked whether mathematically the counting of 
noncitizens does or does not dilute the votes of citizens in 
Congress?
    Ms. Perales. It does not dilute the votes of citizens.
    Mr. Turner. Thank you for your answer.
    Going to the third question then, because the appropriation 
process impacts the allocation of electoral votes, the counting 
of noncitizens has a potential for the impact of the outcome of 
Presidential elections.
    Doctor Prewitt.
    Mr. Prewitt. Just like in the noncounting of anyone will 
have that impact. Of course, by definition.
    Mr. Turner. Mathematical.
    Mr. Prewitt. Vote dilution is an incredibly important issue 
and I am glad we are discussing it. There are costs to trying 
to manage it.
    Mr. Turner. That's question No. 5. Only on this one. Mr. 
Killian.
    Mr. Killian. Yes, with that qualification.
    Mr. Turner. Mr. Gimpel.
    Mr. Gimpel. Yes.
    Mr. Turner. Mr. Spiropoulos.
    Mr. Spiropoulos. Yes.
    Mr. Turner. Ms. Perales.
    Ms. Perales. Yes. If I understand the question I'm 
answering.
    Mr. Turner. The fourth thing is that the counting of 
noncitizens having an impact on apportionment and 
representation then in Congress has an impact on the balance of 
power between the States in Congress.
    Mr. Prewitt.
    Mr. Prewitt. Yes.
    Mr. Turner. Mr. Killian.
    Mr. Killian. Yes.
    Mr. Turner. Mr. Gimpel.
    Mr. Gimpel. Yes.
    Mr. Spiropoulos. Yes.
    Mr. Turner. Ms. Perales.
    Ms. Perales. Yes.
    Mr. Turner. The fifth is an open question to give you the 
opportunity to discuss what you have been wanting to discuss. 
Dr. Prewitt; briefly, if we could give each of you an 
opportunity to talk on the issue of the impacts. This is if we 
were to do this, what would be the impacts. You can talk about 
the impacts on populations and individuals, you can talk about 
the purity of the census as it is currently viewed. But if each 
of you would take a moment on that then we will turn to Mrs. 
Maloney.
    Mr. Prewitt. Yes. It would be repetitious. It will have an 
impact on quality, impact on fairness. It simply will have that 
impact. That's empirical, factual; mathematical, if you will, 
in your vocabulary. I also think it will have a big impact upon 
the reception of the census in our body politic today and I 
think that has a down side that this committee really ought to 
consider.
    Mr. Turner. Mr. Killian.
    Mr. Killian. In light of the restraints on me by my 
service, I don't think I can answer that question.
    Mr. Turner. We'll accept that.
    Mr. Gimpel.
    Mr. Gimpel. I think it would strengthen the value of 
citizenship and incidentally also stimulate a pretty rapid move 
toward naturalization. It would provide quite an incentive to 
naturalize, I think. Just off the top of my head those are two 
things that would come of it.
    Mr. Turner. Mr. Spiropoulos.
    Mr. Spiropoulos. Speaking with regard to the constitutional 
amendment as opposed to the statute that I had discussed, I 
think if you did the constitutional amendment you would be 
shifting the basis of representation in the original 
Constitution the way the framers envisioned it. That would be 
the underlying change if you exclude legal aliens. The other 
sets of impacts discussed earlier would be on the census. I 
think you might have great damage to the census if you were to 
tie census taking to questions regarding immigration.
    Mr. Turner. Ms. Perales.
    Ms. Perales. Because the exercise of the franchise is 
analytically distinct from congressional representation which 
flows to all persons through total count in apportionment, the 
effect of the proposed measure would be more to shift 
representation away from the States that I described in my 
testimony and would have little to no impact on the exercise of 
the franchise or what is referred to as vote dilution. Those 
are really separate effects, one of which is great and the 
other which is small.
    Mr. Turner. Mrs. Maloney.
    Mrs. Maloney. Thank you very much. I would like to ask Dr. 
Prewitt and I'd like you to respond to this notion that if we 
exclude some subset of the population in the census for 
apportionment purposes, what other groups might be considered 
for exclusion down the road? I would like everyone to answer. 
What other groups besides----
    Mr. Prewitt. Well, I would worry that felons might be 
considered excludable as a category that we obviously don't let 
vote in many of our States. I mean ex-felons, not necessarily 
those in prison but ex-felons who have done their time would be 
excluded. That would be a candidate group. I have no idea what 
we would finally decide about those psychologically incapable 
of exercising a vote because of their mental processes. There 
have been times in this society when we have worried about 
excluding the so-called insane. I am not predicting that would 
happen but there are categories of our population simply less 
well integrated than other categories and I would worry if we 
start down this road of making distinctions at this starting 
point of the representational process, that it opens the 
opportunity to make distinctions along other lines.
    Mrs. Maloney. Does anyone else have ideas of who might be 
excluded. Would you think they might want to exclude the 
homeless, possibly those that are in hospitals? Can you think 
of any other subset that might be considered to be excluded, 
Mr. Killian?
    Mr. Killian. The matter of ex-felons, convicted persons who 
are felons confined in prison is something of a problem in some 
States because prisons generally are constructed in rural areas 
of the State so that the counting of the prison population 
within that county enlarges the county's representation, so 
that might enter into some of this.
    Mrs. Maloney. Mr. Gimpel, can you think of other subsets?
    Mr. Gimpel. I think, Representative Maloney, you made a 
very perceptive point in response to the first panel when you 
called our attention to the fact that there are different types 
of vote dilution and I think that what we would have to do as 
these cases come up, if someone says votes are being diluted 
for this reason or that is take them on a case by case basis as 
we are in this particular instance, discuss it, see where it 
goes. But I think you are right, there are different types of 
vote dilution. Do we want to change the Senate scheme of 
apportionment. Well, remember that the Founding Fathers with 
respect to the U.S. Senate thought that States needed to be 
represented in the Federal system as administrative units. So 
they deserve representation as units of government 
administration, but certainly that's a case, as you pointed out 
in response to the first panel, of a kind of vote dilution. 
That does trouble some people. That should be taken up in a 
series of hearings too, perhaps.
    Mrs. Maloney. Mr. Spiropoulos.
    Mr. Spiropoulos. I think it's important not to confuse 
issues here. I think it is important to focus really on the 
underlying problem that is motivating all this, which is the 
question of illegal immigration. There is no one who seriously 
wants to exclude any group of our society from participation of 
voting or being represented. The question here is to focus on 
the problem, very difficult problem and hard to deal with and I 
think that's what we need to focus on.
    The second thing is that the national government has always 
exercised discretion in administering the census and 
determining who an inhabitant is. You cannot get away from the 
fact that you have to make choices, the administration will 
have to make decisions on how to define the key terms that 
underlie the scheme that you are administering.
    Mrs. Maloney. Well, I agree with you that we have to 
exercise discretion. That's why I'm asking this question. Maybe 
we would like to exercise discretion in other categories. But I 
would differ with your first statement that the hearing is 
about immigration. This hearing is about apportionment and 
representation and possibly the dilution of a vote.
    I would like to ask Ms. Perales, in your testimony you 
mentioned that at one time the Census Bureau counted Blacks as 
three-fifths of a person, is that correct?
    Ms. Perales. No, apportionment. Slaves.
    Mrs. Maloney. Counted slaves as three-fifths of a person, 
is that correct?
    Ms. Perales. That is correct.
    Mrs. Maloney. Do you think that possibly we could consider 
counting women less since they are paid $0.79 to the dollar. 
That's a Bureau of Labor Statistics point that they are paid 
$0.79 to the dollar for like work. Do you think that a woman 
could be counted less in the census as a discretionary 
movement?
    Ms. Perales. Once you unhook representation from the 
people, all persons, as required by the Constitution, once you 
unlink those concepts the extremes are without limit in terms 
of how you would take away representation from groups of 
people.
    To answer the previous question, the largest structural 
group of nonvoters obviously is children. Why not exclude 
children from apportionment? They cannot vote. We will catch up 
to them later after they turn 18. Why not exclude----
    Mrs. Maloney. So we have gotten felons, prisoners, the 
insane, and those in insane asylums, now possibly children, 
since they can't vote, maybe we shouldn't count children for 
apportionment. Can you think of any other area?
    Ms. Perales. Yes, the most frightening extreme is that one 
carries the idea of voting or the exercise of the franchise all 
the way to become synonymous with representation, meaning that 
you don't get counted for apportionment unless you're a 
registered voter or don't get counted unless you turned out in 
the last election or, God forbid, that you voted for the 
decumbent.
    Mrs. Maloney. What about Alzheimer's? Do you think they 
would put that in there? One of my good friends, she's 61 years 
old, she has just come down with Alzheimer's. Maybe she 
shouldn't be counted because she really has some challenges 
now. Do you think Alzheimer's could go into that list too?
    Ms. Perales. Certainly any limitation once you stop giving 
representation to the people is within the bounds of 
imagination and, by the way, would all have to be listed on the 
short form of the census.
    Mrs. Maloney. Thank you very much.
    Mr. Killian, I would like to go back to your testimony on 
constitutional amendments. And I recall that in 1993 an 
amendment that began in the 1700's was finally ratified. And 
you talked about the time limits being very important. How many 
amendments have passed without a time limit and how many 
amendments have had a time limit? When did they start or when 
did Congress start a time limit?
    Mr. Killian. The first amendment with a time limit issue 
was the 18th amendment imposing prohibition, which was proposed 
and ratified roughly around 1920. The reason that time 
limitations began to come in was there was a debate with regard 
to whether amendments that had been proposed a long time ago 
were still alive and whether States could still act, and the 
idea was to begin placing time limitations in the amendment. Of 
course the old amendments did not have a time limitation. And 
with respect to the present 27th amendment, so-called Madison 
amendment which was 1 of the 12 amendments proposed by Congress 
in 1789, which 10 were ratified and became the Bill of Rights, 
that was still of interest to some people because it provided 
for a required layover between the time Congress voted for a 
pay increase, required intervening election before it would 
take effect.
    And from time to time a State or two States ratified, and 
finally in 1992, 1993 enough States had ratified over the long 
period of time so that the amendment was ratified. The only 
question was: Was it validly ratified because of the amount of 
time that had run? And Congress, both Houses of Congress passed 
resolutions saying yes, it had been, and the executive branch 
official responsible for certifying it, the Archivist of the 
United States, certified it.
    Mrs. Maloney. I want to thank all of the panelists and your 
historic understanding is important. All of your testimony has 
really deepened my understanding. I think once you start down 
this road of disqualifying or not counting certain people, it 
certainly opens up the possibility that other people will not 
be counted, and I think it is a very, very serious question and 
personally I do not think that we should move away from our 
Founding Fathers, who directed this country so brilliantly, 
that everyone should be counted. Thank you.
    Mr. Turner. Mrs. Miller.
    Mrs. Miller. Thank you, Mr. Chairman. I might mention, and 
I appreciate the historical perspective that we have talked 
about today. I think this is really a very interesting debate 
and I am a person who believes in the goodness of the American 
people and that we will come to the right decision to ensure 
freedom, liberty, democracy, protection for all American 
citizens and has been stated here by a couple of our panelists, 
that we should honor the original intent of our Founding 
Fathers.
    Actually, the original language, if we should honor the 
intent of our Founding Fathers, the original language said we 
were to count all free persons, including those bound to a term 
of service, minus Indians not taxed, plus three-fifths of other 
persons, meaning slaves. So I honor our Founding Fathers, 
although I don't honor that part of their thinking. So I think 
it is appropriate for us to amend the Constitution to protect 
all American citizens, and that is what I am proposing with 
this resolution.
    I do not see this as a partisan issue in any way, perhaps a 
regional issue, but it is a nonpartisan issue in my mind. It is 
simply an issue of fairness, it is a fundamental caveat to our 
democracy, which is the one man, or one woman as I say, one 
vote. I think that is very important and I think this goes 
right to the heart of that. And Mr. Gimpel had mentioned that 
it was his observation that perhaps seeing this resolution pass 
and this amendment to our Constitution pass would actually be 
perhaps an impetus, give immigrants another incentive to become 
American citizens, and he had made that comment and I guess I 
would ask the rest of the panel if you feel that could be a 
consequence of passing this. Start with Dr. Prewitt.
    Mr. Prewitt. Historically immigrant groups do naturalize at 
roughly a pace which I could describe historically in detail, 
but they do gradually naturalize, they learn English, they buy 
homes, they intermarry across the boundaries, as the Italians 
and Irish and Poles, so forth, as today the immigrants are, the 
Hispanics are and Asians and so forth. So I don't see this as 
an extra incentive whatsoever to the naturalization process. I 
think that will unfold in due course.
    We have some 30,000 noncitizens now in the military, and I 
do think that because they are in the military and the 
President agrees we should hasten their citizenship, but we 
will take them even if they decide not to naturalize.
    And I do worry about the no taxation without representation 
point. The Boston Tea Party is a part of our founding 
mythology, if you will, and it's odd at this time in our 
history we would go back to no taxation without representation.
    So I guess I am not worried about the naturalization 
phenomenon. I just see it unfolding in due course as it always 
has. The second and third generation is very different from the 
first, and so forth.
    So I see the opposite; that this will create an anxiety in 
this population at the current time and an anger at the Federal 
Government, especially among the Hispanic population, which I 
would hope we would take into consideration as we consider this 
amendment.
    Mrs. Miller. Thank you. Anyone else have a comment on that?
    Mr. Spiropoulos. It would be an incentive to 
naturalization. I don't think it would be an internal incentive 
that you believe because you do not have representation that 
you needed to be naturalized. I think what you would have 
happen is a huge political organization in those districts that 
would lose out. They would organize people to become 
naturalized in order to make sure that their votes were counted 
and did not get diluted.
    Mr. Gimpel. I would say some of the immigrant advocacy 
groups that we have heard from today would likely turn their 
attention to bolstering the political advocacy of their grass 
roots constituencies. That would probably be a good thing. We 
have heard for 15 or 20 years about how civic engagement in the 
country has been in decline, with the 2004 election being an 
odd exception, a blip on the screen. Wouldn't it be nice if we 
saw a great stimulus to civic engagement as a result of 
adoption of this amendment?
    Ms. Perales. I believe that people naturalize for personal 
reasons, mainly out of a love for this country and the desire 
to take that final step to participate as a U.S. citizen. The 
relatively remote effects on apportionment would not 
necessarily be foremost in someone's mind as they begin the 
process of naturalization.
    Certainly the groups that are committed to the Latino 
community strive today to increase naturalization as much as 
possible. I am not sure that such a change as the one proposed 
today would provide any greater resources toward that effort 
than are already going to that effort.
    Mr. Prewitt. May I add a footnote to Congressman Miller's 
question?
    Mrs. Miller. Go ahead.
    Mr. Prewitt. I did meet with leaders of the Catholic Church 
in preparation for the census 2000 and also MALDEF leaders. The 
question I put is why do you care so much about whether we 
count the noncitizens, and their explicit answer was we see 
that as a step toward naturalization because it makes them more 
comfortable dealing with the Federal Government and that is a 
very important step in the evolution of our constituency. So 
the Catholic Church, which for years had a standoff 
relationship to the census for fear it would be tainted with 
sort of government surveillance, and so forth, changed its mind 
in 2000 exactly on the argument you are making. I actually do 
believe this amendment would set that back rather than move it 
forward.
    Mrs. Miller. Mr. Chairman, I am not going to ask any more 
questions. I appreciate your time. When I had an opportunity to 
testify I think I laid out my reasoning for this resolution 
very clearly at that point and I know others may have some 
questions here but I do think that this again is an issue of 
basic fairness.
    I really think, although there have been no polls that I am 
aware of, if you took a poll in our Nation right now about 
whether or not people agree that illegal immigrants should have 
the same representation in the U.S. Congress as American 
citizens, it would be about 90-10 in favor of this resolution. 
I honestly believe that. Again, I believe in the goodness of 
the American people and their ability to ferret out in very 
simplistic terms what is the appropriate course of action to 
strengthen our Nation and continue our course.
    Thank you very much.
    Mr. Turner. I recognize Linda Sanchez from California.
    Ms. Sanchez. Thank you, and I want to thank Chairman Turner 
for allowing me to join the Federalism and Census Subcommittee 
on today's hearing. I would also ask unanimous consent to 
submit some opening statement for the record and----
    Mr. Turner. Also make any comments.
    Ms. Sanchez. If that is granted, I would like to ask 
questions.
    Mr. Turner. Please.
    [The prepared statement of Hon. Linda T. Sanchez follows:]

    [GRAPHIC] [TIFF OMITTED] T6074.085
    
    [GRAPHIC] [TIFF OMITTED] T6074.086
    
    [GRAPHIC] [TIFF OMITTED] T6074.087
    
    Ms. Sanchez. Thank you.
    Ms. Perales, it seems to me that Latinos will be the ethnic 
group most harmed by House Joint Resolution 53. In your 
analysis of the resolution and its impact on apportionment do 
you agree that Latinos would be the most harmed if this 
language was added to the Constitution?
    Ms. Perales. Yes, I do agree.
    Ms. Sanchez. What other groups might be harmed as well?
    Ms. Perales. Anglos or white Americans who happen to live 
in and among the Latino community; for example, in my State of 
Texas an Anglo person who lives in San Antonio or actually, 
frankly, because apportionment is done on a State by State, 
anybody who lives in Dallas or Waco or El Paso or Austin is 
also going to be disproportionately and negatively affected by 
this shift of representation.
    Ms. Sanchez. Thank you. Now I know one of the hot topics 
currently in Congress is immigration reform, and part of the 
inflammatory language that we hear from anti-immigrant groups 
is about illegal immigrants and their harmful impact on 
communities, and I think some of that rhetoric has influenced 
the debate about congressional apportionment. That's my 
personal opinion.
    Ms. Perales, will you please clarify for the record the 
distinction between illegal immigrants and legal permanent 
residents as these groups pertain to the joint resolution and 
to congressional apportionment.
    Ms. Perales. Well, certainly as worded the joint resolution 
says nothing about undocumented immigrants and in fact does not 
apply just to undocumented immigrants, so there is no 
connection at all between the proposal and what is referred to 
as illegal immigration.
    As has been pointed out earlier, there are over 18 million 
noncitizens living in the United States, the majority of whom 
are lawful residents, either legal permanent residents or other 
types of lawful residents. Because the proposal ignores or 
excludes from apportionment all noncitizens, it is grossly 
overbroad and strikes at many people living lawfully in the 
United States today.
    Ms. Sanchez. I am going to sort of hone in on that issue of 
legal permanent residents. Somebody on this panel said that 
this hearing was about protecting all American citizens and 
that it was an issue of basic fairness. Ms. Perales, are you 
aware that there are many legal permanent residents that serve 
in the U.S. Military?
    Ms. Perales. Yes, I am. They are in uniform and risking 
their lives every day for this Nation.
    Ms. Sanchez. Some are currently deployed in Iraq and 
Afghanistan. Are you aware of that?
    Ms. Perales. Yes.
    Ms. Sanchez. So if we are talking about protecting American 
citizens would you or would you not say it's a fair statement 
that there are legal permanent residents who protect all 
American citizens?
    Ms. Perales. There are many.
    Ms. Sanchez. Would you say in your opinion would it be 
basic fairness to disallow a veteran who may be a legal 
permanent resident but not yet have taken the oath of 
citizenship, deny them being counted for purposes of 
apportionment? Would that sound like basic fairness to you?
    Ms. Perales. It would be very unfair.
    Ms. Sanchez. Thank you.
    Also, Mr. Gimpel stated earlier in his testimony that 
districts potentially with more citizens get less services from 
their Member of Congress. Would you agree with that statement?
    Ms. Perales. No, I would not. No, I would not at all. 
Whether you are a noncitizen or citizen, you walk down the 
streets, you turn the lights on in your house, you have many 
needs and you do approach your Representative in Congress for 
services.
    Ms. Sanchez. And I just want to hone in one last question 
on the issue of children. Children under 18 are not of age to 
vote and they receive services from their Federal 
Representatives, is that not correct?
    Ms. Perales. Absolutely.
    Ms. Sanchez. I'm interested in knowing if you could just 
sum up. I'll end my questioning with the answer to this one 
last question. Earlier in the hearing the question was put to 
all of the panelists that the counting of noncitizens for 
apportionment dilutes the vote of citizens, and you disagreed 
with that and I would just like to give you an opportunity 
please to explain why you disagree with that.
    Ms. Perales. Thank you for the opportunity. Voting and the 
exercise of the franchise is limited to citizens. And if you 
look at the 14th amendment you can see it right there. It talks 
about citizens and it talks about the franchise and it talks 
about people and all persons, which is a much larger group than 
citizens. Noncitizens don't have a vote, noncitizens don't 
exercise the franchise in any way, and thus they cannot dilute 
the vote of those who are voting. It's not analytically 
possible. And it creates great confusion to mash together the 
concepts of voting and representation.
    Representation flows to all people under the Constitution. 
Elected officials will certainly appreciate the fact that they 
represent the same number of people across a district within a 
State. That is a very different concept than who votes and who 
chooses to vote in any particular election.
    Ms. Sanchez. Thank you, Ms. Perales. I think you have done 
an excellent job of educating on that, and I yield back.
    Mrs. Maloney. Could I add one question to her? I know that 
in New York and I have read that in court cases in other States 
the courts have upheld the responsibility of government to 
provide services to all people; education and health care. 
Could you elaborate on that?
    Ms. Perales. Well, the courts have interpreted the 14th 
amendment's reference to persons; for example, in the equal 
protection clause, as truly persons, as all human beings, not 
to just citizens. So for example since we all have the right to 
equal protection of the laws, that means that whether or not 
you are a citizen or even whether or not you are a documented 
or undocumented immigrant, you are entitled to the equal 
protection of the laws. And the 14th amendment similarly 
provides for apportionment based on all persons.
    One has to read the 14th amendment to be consistent within 
itself in that all persons means exactly that, all persons. 
Undocumented immigrants are of course eligible for very few if 
any kind of government services, although there is widespread 
misinformation on that point.
    So I think the most important thing to understand is that 
the 14th amendment guarantees them protections with respect to 
liberties and freedoms as well as protection of the laws flows 
to all persons.
    Mrs. Maloney. Thank you very much.
    Mr. Turner. Thank you. Ms. Sanchez, I appreciate your 
return to the issue of the dilution of the vote of citizens 
because actually for my followup questions, Ms. Perales, I need 
to return to your testimony. I have been discussing with staff 
and there is a lack of agreement on some of the content of your 
testimony and I want to clear that up.
    We were talking about the mathematical impact of counting 
noncitizens for purposes of apportionment and I'd asked you the 
question as to whether or not the counting of noncitizens for 
purposes of apportionment diluted the votes of citizens, and 
you answered no, an answer which I agree and I believe is 
mathematically correct.
    The subsequent question and clarification was a followup 
one that the counting of noncitizens for the purposes of 
apportionment deletes--let me try that again. Tongue-tied 
here--that the counting of noncitizens for purposes of 
apportionment dilutes the representative vote of citizens in 
Congress, and my recollection is that you had answered in the 
affirmative, which is in agreement with the other seven 
panelists.
    Ms. Perales. No, that is not correct. I'm not sure how you 
modify the word ``vote'' with the word ``representative.'' It 
does not have a meaning to me.
    Mr. Turner. Let's discuss that for a moment. The question 
of whether or not it dilutes the votes of citizens, since only 
citizens are allowed to vote, noncitizens not appearing in the 
ballot box to vote, the pool of those counted are only 
citizens. When noncitizens are counted for the purposes of 
apportionment, the pool gets larger, and then as 
Representatives, which are a fixed number of Representatives, 
are then allocated across the sea of the individuals that are 
counted, both citizens and noncitizens, the impact vote on the 
representative vote of citizens, those in Congress, is 
diminished.
    If you count a smaller group, only citizens, then the 
representative vote in Congress of citizens would increase. 
That is a mathematical equation of which all other seven 
members of the panels two and three agreed, and my recollection 
was that you had agreed in the affirmative with that.
    Ms. Perales. No, I do not agree the vote is diluted in any 
way.
    Mr. Turner. Would you please explain to me mathematically 
how by counting a larger group versus a smaller group dilution 
does not occur.
    Ms. Perales. Because apportionment is done based on total 
population. Representatives are distributed across the sea of 
people, as you put it, equally, meaning there are roughly equal 
numbers of people in every congressional district. There are 
different proportions of citizens and noncitizens in each 
congressional district. Does total population-based 
apportionment mean that congressional districts are comprised 
of different numbers of citizens? Yes, of course, 
mathematically it does.
    Mr. Turner. So then you would have to agree that those 
citizens that live in a congressional district that has a 
higher percentage of citizens have a diluted representative 
vote in Congress versus a congressional district that has a 
less percentage of citizens when viewing it through the eyes of 
citizen representation only?
    Ms. Perales. No.
    Mr. Turner. How can that be?
    Ms. Perales. Because not everybody votes.
    Mr. Turner. It's representation of vote issue. If I have 
more citizens that live in my district versus Candice Miller 
having less citizens, then when I sit in this chair, go to the 
House floor and vote, my vote, which is one, and her vote, 
which is one, has behind it more citizens, and she would have 
less citizens. So her citizens are diluted with respect to 
versus--excuse me, mine are diluted than her citizens. My 
citizens having only one, her citizens being less, having only 
one.
    Ms. Perales. I cannot agree that the citizens are diluted. 
What it does mean, and I will agree with you, is that 
congressional districts might have more citizens in them and 
less citizens, more children in them and less children, more 
felons in them and less felons in them, but I do not agree that 
this has any substantial impacts on the weight of their vote, 
which is what vote dilution is.
    Mr. Turner. We're just going to have to disagree because 
the logical conclusion of your first statements to me seem to 
conclude that dilution, but I certainly understand. Do we have 
any other?
    Mr. Prewitt. I do have to change my answer to that question 
because you actually changed the terms of it in your response.
    Mr. Turner. Your answer will stand to my original question 
you received. If you want to say how you now want to 
distinguish, but your original answer stands.
    Mr. Prewitt. Representation and voting are simply 
different. There's no dilution of representation. I heard in 
this reframing of the question you're focused on 
representation, not voting.
    Mr. Turner. Their representation is their vote in Congress, 
which is the question that I asked you. To that you answered 
yes.
    Mr. Prewitt. You cannot dilute representation insofar as 
representation is distributed across the entire population 
because that is the nature of the system. There is no concept 
by which you could dilute representation.
    Mr. Turner. By counting noncitizens there are congressional 
districts that have less citizens in them. You agreed with 
that?
    Mr. Prewitt. Yes, yes.
    Mr. Turner. Therefore, their vote in Congress as citizens 
is greater than a district that has more citizens?
    Mr. Prewitt. But not the representation.
    Mr. Turner. The vote is representation, sir.
    Ms. Perales. That's the problem of the way you framed the 
question. You have turned representation into the issue of 
voting.
    Mr. Turner. I will leave it with you of their votes in 
Congress, which was your answer then in the affirmative.
    Ms. Perales, as a result of that discussion do you have any 
change to your answer?
    Ms. Perales. No. Only to point out that the framers 
recognized the distinction between representation and the vote 
within the 14th amendment when they created it.
    Mr. Turner. Vote in the ballot box versus vote in Congress. 
I would agree with you. Any closing comments or additional 
questions for any Members?
    Ms. Sanchez. One quick followup question. If you accept the 
chairman's discussion that we just had about greater number of 
citizens, meaning less representation, I am using his 
terminology but that's the way he phrased it, would then it 
seem, Mr. Prewitt and Ms. Perales, an issue of basic fairness 
that somebody who was elected with a lower percentage of the 
total citizens of their district who voted, that they should 
get the same representation in terms of vote in the Congress as 
another Member who had a higher percentage of citizens who 
voted in their district?
    Mr. Prewitt. That's exactly the issue of conflating voting 
with representation. The system of political representation 
that our founders created did not rest upon voter turnout, it 
did not rest upon distinctions of citizenship, it simply rested 
on no distinctions other than number of people. We presume in 
our system of political representation that you as an elected 
Representative of your district have a responsibility for all 
of the people in that district. That's what we presume. And so 
whether they vote--if only one person votes and it's you and 
you elect yourself, you still have a responsibility to 
represent another 649 or 73,000 people.
    Ms. Perales. I have nothing to add to that answer.
    Ms. Sanchez. Fabulous. Thank you. I yield back.
    Mr. Turner. Any other questions or comments? If not, before 
I adjourn I would like to thank all of our members of the 
panel, our distinguished witnesses that have participated 
today. I appreciate your willingness to share your knowledge 
and thoughts with us and I would also like to thank my 
colleagues for their participation today. House Joint 
Resolution 53 is a very interesting proposal that gives food 
for thought. I would like to give special thanks to 
Congresswoman Candice Miller for her time and her testimony 
today.
    In the event that there may be additional questions that we 
did not have time for today, the record shall remain open for 2 
weeks for submitting questions and answers. Thank you all. We 
stand adjourned.
    [Whereupon, at 12:38 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record 
follows:]

[GRAPHIC] [TIFF OMITTED] T6074.088

[GRAPHIC] [TIFF OMITTED] T6074.089

[GRAPHIC] [TIFF OMITTED] T6074.090

[GRAPHIC] [TIFF OMITTED] T6074.091

[GRAPHIC] [TIFF OMITTED] T6074.092

[GRAPHIC] [TIFF OMITTED] T6074.093

[GRAPHIC] [TIFF OMITTED] T6074.094

                                 
