[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]




                               BEFORE THE

                           AND CIVIL JUSTICE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             SECOND SESSION


                              JUNE 8, 2018


                           Serial No. 115-59


         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

 32-965                  WASHINGTON : 2018            
                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
    Wisconsin                        ZOE LOFGREN, California
LAMAR SMITH, Texas                   SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio                   STEVE COHEN, Tennessee
DARRELL E. ISSA, California          HENRY C. ``HANK'' JOHNSON, Jr., 
STEVE KING, Iowa                         Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC L. RICHMOND, Louisiana
TREY GOWDY, South Carolina           HAKEEM S. JEFFRIES, New York
RAUL LABRADOR, Idaho                 DAVID CICILLINE, Rhode Island
BLAKE FARENTHOLD, Texas              ERIC SWALWELL, California
DOUG COLLINS, Georgia                TED LIEU, California
RON DeSANTIS, Florida                JAMIE RASKIN, Maryland
KEN BUCK, Colorado                   PRAMILA JAYAPAL, Washington
JOHN RATCLIFFE, Texas                BRAD SCHNEIDER, Illinois
MARTHA ROBY, Alabama                 VALDEZ VENITA ``VAL'' DEMINGS, 
MATT GAETZ, Florida                      Florida
KEITH ROTHFUS, Pennsylvania
          Shelley Husband, Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel

           Subcommittee on the Constitution and Civil Justice

                       STEVE KING, Iowa, Chairman
                  RON DeSANTIS, Florida, Vice-Chairman
LOUIE GOHMERT, Texas                 STEVE COHEN, Tennessee
KAREN HANDEL, Georgia                JAMIE RASKIN, Maryland
                                     THEODORE E. DEUTCH, Florida
                            C O N T E N T S


                              JUNE 8, 2018
                           OPENING STATEMENTS

The Honorable Steve King, Iowa, Chairman, Subcommittee on the 
  Constitution and Civil Justice.................................     1
The Honorable Steve Cohen, Tennessee, Ranking Member, 
  Subcommittee on the Constitution and Civil Justice.............     4
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................     6
The Honorable Jerry Nadler, New York, Ranking Member, Committee 
  on the Judiciary...............................................     6


Steve Marshall, Attorney General, Alabama
    Oral Statement...............................................     9
J. Christian Adams, President and General Counsel, Public 
  Interest Legal Foundation
    Oral Statement...............................................    11
Dr. Steve Murdock, Professor, Rice University
    Oral Statement...............................................    12
Steven Camarota, Director of Research, Center for Immigration 
    Oral Statement...............................................    14

                        Questions for the Record

Dr. Steve Murdock, Professor, Rice University, Response to Questions 
    for the Record. This material is available at the Committee and can 
    be accessed on the committee repository at:


              Additional Material Submitted for the Record

Letters Submitted by the Honorable Steve Cohen, Tennessee, Ranking 
    Member, Subcommittee on the Constitution and Civil Justice. This 
    material is available at the Committee and can be accessed on the 
    committee repository at:


Letters Submitted by the Honorable Steve King, Iowa, Chairman, 
    Subcommittee on the Constitution and Civil Justice. This material 
    is available at the Committee and can be accessed on the committee 
    repository at: Justice


Law Review Article Submitted by the Honorable Jamie Raskin, Maryland. 
    This material is available at the Committee and can be accessed on 
    the committee repository at:




                          FRIDAY, JUNE 8, 2018

                        House of Representatives

           Subcommittee on the Constitution and Civil Justice

                       Committee on the Judiciary

                            Washington, DC.

    The subcommittee met, pursuant to call, at 9:07 a.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve King 
[chairman of the subcommittee] presiding.
    Present: Representatives King, Goodlatte, DeSantis, 
Gohmert, Handel, Cohen, Nadler, and Raskin.
    Staff Present: Paul Taylor, Chief Counsel, Subcommittee on 
the Constitution and Civil Justice; Jake Glancy, Clerk, 
Subcommittee on the Constitution and Civil Justice; James Park, 
Minority Chief Counsel, Subcommittee on the Constitution and 
Civil Justice; Keenan Keller, Minority Senior Counsel; David 
Greengrass, Minority Senior Counsel; and Veronica Eligan, 
Minority Professional Staff Member.
    Mr. King. The Subcommittee on the Constitution and Civil 
Justice will come to order.
    Without objection, the chair is authorized to declare a 
recess of the committee at any time.
    We welcome everyone to today's hearing on the subject 
matter of ``Questions Regarding the U.S. Census,'' and I now 
recognize myself for an opening statement.
    Our hearing today will allow Members of Congress and the 
general public to examine the constitutional options the 
Federal Government has in determining how the decennial census 
is conducted and used, especially with regard to people who 
aren't in the country legally.
    The current policy under which illegal aliens are counted 
in the census and included in the formula for geographically 
allocating Members of the U.S. House of Representatives allows 
areas with many illegal aliens to elect more Federal and State 
Representatives than areas with higher populations of citizens 
and lawful residents but few illegal aliens.
    Since there are only 435 U.S. House Members, providing 
additional Representatives for areas in the country with many 
illegal aliens will leave other parts of the country inhabited 
by a relatively smaller number of illegal aliens with fewer 
    Further, congressional districts with many illegal aliens 
will have fewer citizens casting votes for their 
Representatives, thereby granting citizen voters in districts 
with many illegal aliens more influence in selecting a 
    Also, legislators from areas that benefit from increased 
representation because of a disproportionate number of illegal 
aliens may be incentivized to support policies that encourage 
such aliens to come to and continue to stay in America, even 
when the policy preferences of illegal aliens may be very 
different from those of citizens and legal immigrants. Such 
legislators may also be incentivized to ignore immigration 
violations or refuse to cooperate with Federal immigration law 
    The controlling language in section 2 of the 14th Amendment 
states that, quote, ``Representatives shall be apportioned 
among the several States according to their respective numbers, 
counting the whole number of persons in each State, excluding 
Indians not taxed,'' close quote.
    The phrase ``counting the whole number of persons in each 
State'' makes clear the census envisioned by the 14th Amendment 
was intended to count former slaves as entire persons, as 
distinguished from the original Constitution, which provided 
that only three-fifths of the number of slaves would be counted 
for purposes of apportionment.
    The phrase ``excluding Indians not taxed'' refers to the 
exclusion from census counting of Indians that could not be 
taxed by State or Federal governments because they were members 
of sovereign Indian nations.
    Finally, the words ``their respective numbers,'' in the 
context of the census' purpose of determining relative State 
population totals that will be the basis for apportioning 
Representatives for the subsequent decade, makes reasonably 
clear that the persons to be counted should have some 
meaningful connection to the State that has the significant 
potential to last through the decade to come--in other words, 
an expectation that they would be residents within that 
district, at least the potential that they would be residents 
there for the decade to come.
    Consistent with this view, the Census Bureau has never 
attempted to count every person physically present in a State 
during the census and has excluded tourists and other short-
term visitors and many other categories of people.
    The Bureau's own application for its ``usual residence'' 
standard has changed over the years, recognizing the 
determination of whether particular persons should be counted 
as part of a State's respective number is not an automatic 
process but one that requires a reasonable judgment as to 
whether persons have a sufficient connection to a particular 
State such that their principal residence is in the State and 
has some minimum likelihood of a continuance there.
    And regarding illegal aliens, there can be no legal 
residing if one is subject to deportation at any time in the 
near term.
    The understanding of the Framers of the original census 
provision of 1789 was that apportionment would be based on the 
relative number of inhabitants in the States. The drafts of the 
apportionment provision, including the version initially 
approved by the Constitutional Convention, used the term 
``inhabitants'' rather than ``persons.''
    The committee on style, which is exactly what it sounds 
like, the committee on style or style of language, which was 
not authorized to make substantive changes to submitted 
provisions, replaced the phrase ``citizens''--replaced the 
phrase with which they used, which was ``citizens and 
inhabitants of every age, sex, and condition.'' That phrase was 
replaced with a single word, ``persons,'' by the committee on 
style. And that was in the description of how the States' 
numbers were counted. But the historical evidence does not 
indicate that this stylistic change was intended to alter the 
meaning of the census provision.
    Indeed, in ``The Federalist Papers,'' James Madison, the 
highest authority, I might point out, who himself was a member 
of the committee on style, described the meaning of the terms 
of the Constitution as it would be ratified as followed, quote: 
``It is a fundamental principle of the proposed Constitution 
that the aggregate number of Representatives allotted to the 
several States is to be determined by a Federal rule founded on 
the aggregate number of inhabitants.''
    In the same ``Federalist Papers''--and that is close quote. 
In the same ``Federalist Papers,'' Madison wrote, quote, 
``Within every successive term of 10 years, a census of 
inhabitants is to be repeated,'' close quote.
    So he references strongly of ``inhabitants'' and the 
definition of ``inhabitants'' rather than the stylistic change 
to ``persons.'' And the original census statute enacted by 
Members of Congress, including members of the Constitutional 
Convention, refers to ``inhabitants'' as the subject of the 
census and the basis of apportionment.
    The Constitution grants authority to Congress to exercise 
its discretion in determining who meets the habitation 
requirements for purposes of the census. Under the 
Constitution, Congress may direct, by law, the manner in which 
the census is conducted and enforce provisions of the 14th 
Amendment. Of course, in doing so, Congress may not usurp the 
    Federal statutory authority also already provides that the 
Secretary of Commerce, under 13 U.S.C. 141(a), quote, ``shall 
take a decennial census of population in such form and content 
as he may determine,'' close quote. But, again, the Secretary 
of Commerce may not usurp the Constitution.
    I would challenge Congress and the administration to 
consider whether the residence rule conforms to the original 
meaning of the Constitution. And I am encouraged that the Trump 
administration has made the decision to include a citizenship 
question on the 2020 census.
    I hope we can continue working toward a 2020 census that 
accurately represents the American people. I look forward to 
hearing from all our witnesses today in examining with them how 
Congress and the Federal Government can use its constitutional 
authority to protect the sanctity of the votes of American 
    Finally, I would like to note that I have introduced two 
pieces of legislation to that end--namely, the Census Accuracy 
Act, which would allow the American people more information 
regarding unlawful presence in the United States, and the Libby 
Schaaf Act, H.R. 5884, which would punish obstruction of law 
enforcement by State and local officials.
    That concludes my opening statement, and I now recognize 
the ranking member, Mr. Cohen, for his opening statement.
    Mr. Cohen. Thank you, Mr. Chair.
    The Founders considered an accurate count of our Nation's 
population to be of such central importance to democratic 
government that they placed a requirement for census in Article 
I of the Constitution.
    Specifically, Article I, section 2, as amended by the 14th 
Amendment, requires that, quote, ``an actual enumeration,'' 
unquote, of the whole number of persons in each State be 
conducted every 10 years for the purpose of apportioning 
Representatives among the several States.
    In addition to being used for apportionment, the census can 
aid our use for redistricting for State legislative districts, 
determine the distribution of Federal funds, and estimate 
population sizes between censuses. And, of course, it also 
results in the number of electors you have in the Electoral 
College and a way to elect a President that is in our 
constitutional system that does not consider the popular vote. 
State and local governments, businesses, and nonprofit 
organizations also use census data to inform their own 
    Yet the ability to meet the mandate of an actual 
enumeration of the whole number of persons in each State is 
under threat from this administration.
    On the 26th of March, Secretary of Commerce Wilbur Ross 
issued a memorandum directing that a question asking about 
citizenship be added to the 2020 decennial census 
questionnaire. Such a question has not been on a decennial 
census in almost 70 years, and when it was, it was a time of 
great, great immigration in our country.
    Adding such a question raises the serious risk of 
depressing the response rates of immigrants and other minority 
communities, leading to an undercount of their numbers.
    All we have to do is look to Bean Station, Tennessee, near 
Morristown, where a raid was conducted and many, many 
immigrants were arrested for no reason whatsoever. The raid was 
under the auspices and the theory that it was going after the 
company for IRS violations. Nobody at the company was arrested 
or charged, but 100 or so people were taken and removed from 
their homes.
    This has put immigrant populations under fear of even going 
to work. And that is part of what this administration is doing, 
and that is what would happen with this census--fear of being 
located and deported and separated from your family. Indeed, 
that is what we see. And the impact could be devastating for 
States and cities with large numbers of such communities, in 
terms of losing their fair share of congressional seats, 
Electoral College votes, and Federal funding. What we're 
talking about here is simply power, and power to try to go to 
States that don't have as many immigrants.
    It is no wonder, therefore, that at least six lawsuits have 
been filed by States, cities, advocacy groups, and individual 
citizens to challenge the legality of this administration's 
decision to add a citizenship question.
    According to the administration, a citizenship question is 
necessary to help enforce section 2 of the Voting Rights Act. 
That's hard to fathom, but that's what they say. This assertion 
seems like a thinly veiled pretext to exclude immigrants and 
racial minorities from being counted, literally and 
    The real problem with voting rights enforcement is not the 
lack of a citizenship question on a census form; rather, that 5 
years ago the Supreme Court in Shelby County of Alabama v. 
Holder eviscerated the most important enforcement mechanism of 
the Voting Rights Act when it struck the act's coverage formula 
and effectively gutted its preclearance requirement.
    If the administration truly wanted to strengthen 
enforcement of the Voting Rights Act, it would push legislation 
to address the Shelby County decision and restore the Voting 
Rights Act to its full effectiveness. Yet they have not done 
    The same States that had to have preclearance, almost to a 
one, are in the South. They are also the States that most 
likely are to be seen restricting people's voting rights and 
making laws that say you have to present an ID, but not a 
college ID, or they move voting places, or they change all 
kinds of things to make it harder to vote. They appreciate 
minorities very much in those States--when they play football. 
But when they don't play football and they want to vote, 
they're not appreciated at all.
    Instead, it chose to add a census question that was not 
added through the usual years-long, exhaustive, and thorough 
vetting process, which could lead to an inaccurate count and 
the dire consequences that would flow from such an undercount.
    Indeed, this is why six former Census Bureau Directors 
under both Republican and Democratic administrations, including 
Dr. Steve Murdock, who is our witness on the Democratic side 
today, have publicly opposed the addition of a citizenship 
question to the 2020 census.
    It is also no answer to say that the census does not or 
should not include a count of undocumented immigrants. The 
plain meaning of the Constitution's text is clear: The census 
must count, quote, ``the whole number of persons,'' unquote. 
Had the Constitution's drafters intended to limit the census 
count to citizens or exclude certain noncitizens, they could 
have done so, yet they did not. Mr. Madison may have said 
something in ``The Federalist Papers,'' but it wasn't put in 
the Constitution.
    Finally, we must remember that the decision to add a 
citizenship question to the census did not happen in a vacuum. 
Rather, it is part of a disturbing pattern of demonization and 
dehumanization of immigrants and other people of color in this 
    Throughout his Presidential campaign and after he assumed 
office, President Trump has repeatedly used hostile rhetoric 
toward nonwhite immigrant communities and imposed cruel, 
heartless, and unjustified policies like separating children 
from families at the border--which he claims is a Democrat bill 
that he is following, which is a lie, the big ``L'' word that 
comes from the President--and banning people from certain 
Muslim-majority countries. And if it wasn't a lie, he could 
just put in the bill, suggest the bill, and I'm sure his 
acolytes would pass it.
    And in so doing, he has engaged in a nauseating flirtation 
with white nationalists and their belief that America is a 
country for whites only. Such bigotry should have no place in 
American life. Yet here we see only the latest example of this 
President's continuing dog whistle towards the darkest forces 
in our society.
    We saw it in Charlottesville, and it sickened me--it 
sickened me--to say that there were fine people on both sides. 
There were not fine people on the sides of the Ku Klux Klan or 
the neo-Nazis. There never were, there never will be, and 
they're a threat to America as we know it and we believe it 
should be.
    Adding an unvetted citizenship question to the census will 
not only undermine the Constitution's mandate of an actual 
enumeration of the whole number of persons but will only 
further exacerbate the already substantial mistrust between 
immigrant and minority communities and the government and only 
further serve to alienate and exclude already marginalized and 
abused communities. This is exactly the wrong thing to do and 
the wrong direction for America to go.
    I yield back the balance of my time.
    Mr. King. The gentleman returns his time.
    The chair will now recognize the chairman of the full 
committee, Mr. Goodlatte of Virginia.
    Chairman Goodlatte. Thank you, Mr. Chairman.
    I'm pleased the subcommittee is examining today the role 
the U.S. Census can play in giving us a better picture of our 
Nation's composition.
    In particular, getting better information regarding the 
citizen and noncitizen population of our country has 
significant implications for the fair and accurate enforcement 
of the Voting Rights Act, the distribution of Members of the 
House of Representatives in the apportionment process, and in 
providing for equal voting power among qualified voters.
    I welcome the attorney general of Alabama here today and 
all of our other witnesses and look forward to their testimony.
    Mr. King. The chairman returns his time.
    And the chair would now recognize the ranking member of the 
full committee, Mr. Nadler of New York, for his opening 
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chairman, for the first time since 1950, the census 
questionnaire in 2020, at the request of the Justice 
Department, will ask respondents whether or not they are U.S. 
citizens. As one of our witnesses, Dr. Steve Murdock, will 
explain, without thorough testing and analysis, the effects of 
adding a citizenship question are unknown and open to an array 
of dangerous consequences.
    We know, for example, that this new policy is, in essence, 
as the ACLU warns, quote, ``a door-to-door government inquiry 
as to the citizenship status of every member of every household 
in the United States,'' close quote. This, it argues, will 
dramatically reduce participation by immigrant communities, 
stunting their political influence and depriving them of 
economic benefits.
    I share these concerns, as do several leading organizations 
committed to upholding civil rights and protecting the 
interests of immigrants, as well as various State and local 
government entities.
    To date, at least six lawsuits have been filed against the 
Trump administration challenging the legality of adding this 
query to the 2020 census questionnaire, including one filed by 
my own State of New York, along with several other States and 
    In addition, more than 100 of our colleagues in Congress 
have signed on to letters expressing their concern that an 
untested citizenship question may compromise preparations for 
the 2020 census and could jeopardize the accuracy of the count 
in all communities.
    Further, six former Census Directors from both Democratic 
and Republican administrations oppose this change, including 
Dr. Murdock.
    Yet, in service of a narrow political agenda, the Trump 
administration believes it knows better. Or perhaps it doesn't 
believe it knows better, but it wants to do it anyway. From its 
earliest days to the present, the administration has 
relentlessly pushed an anti-immigrant agenda. It has blatantly 
disregarded civil rights protections, as evidenced by its 
continuous efforts to roll back civil rights enforcement.
    And any statements that this is intended to aid civil 
rights enforcement from an administration that has done 
everything possible to sabotage civil rights enforcement is the 
most obvious hypocrisy. Yet the Justice Department now seeks to 
use its supposed interest in protecting civil rights to justify 
this change to the census questionnaire.
    I find the Department's purported justification for 
resisting this change--namely, that it is critical to its 
enforcement of section 2 of the Voting Rights Act and its 
important protections against racial discrimination in voting--
to be not only disingenuous and hypocritical but offensive. 
Such justification appears to be no more than a thinly veiled 
smokescreen for the political motivations behind this costly 
and terrible decision.
    The Constitution, as amended by the 14th Amendment, 
provides that ``Representatives shall be apportioned among the 
several States which may be included within this Union, 
according to their respective numbers, counting the whole 
number of persons in each State,'' unquote.
    And, contrary to the chairman, I don't think the change by 
the committee on style from ``inhabitants''' to ``persons''' 
changes anything at all. ``Inhabitant'' means everybody who 
inhabits, who lives there.
    Clearly, this mandate is intended to ensure that all 
individuals are counted regardless of their citizenship status. 
Thus, changes to our Nation's census process that may have the 
effect, either intentionally or unintentionally, of diminishing 
the number of people counted, particularly when it targets one 
category of people, must not be taken lightly.
    Allowing political considerations to taint census-related 
decisions that should be driven strictly by scientific 
considerations and quality standards does a disservice to an 
agency with a proud tradition of scientific excellence and 
    Hopefully we can learn a lesson from history. At the time 
of the first census in 1790, some of our most influential 
constitutional Framers were directly involved in overseeing the 
effort, with Representative James Madison of Virginia 
reportedly recommending at least five of the initial six 
questions and Secretary of State Thomas Jefferson supervising 
the overall effort.
    Subsequently, there was controversy about the results, with 
both George Washington and Thomas Jefferson expressing 
skepticism over the final count because they expected a number 
exceeding the 3.9 million inhabitants found in the enumeration.
    Like our Founders, I believe our primary constitutional 
duty is to ensure that no one is left out of the census. An 
accurate count is one of the most important civil rights issues 
to come before this subcommittee. Not only is it central to 
apportioning political power at every level of our 
representative form of government, but the data collected also 
influences the allocation of more than $800 billion in Federal 
funds every year, along with countless policy and investment 
decisions by government agencies and private entities.
    Mr. Chairman, the conduct of the decennial census was never 
supposed to be a political function. The Constitution mandates 
the count of every person in the United States in order to 
apportion seats in the House of Representatives among the 
States. Since 1790, every census has included citizens and 
noncitizens alike. Though the census has political 
consequences, the conduct of the census must be strictly 
nonpartisan and nonpolitical.
    I do agree that robust oversight is necessary to protect 
the integrity of the census process and accuracy of the 
results. Accordingly, I thank the chairman for holding this 
hearing, and I look forward to hearing our witnesses today.
    That concludes my prepared statement, but let me just add a 
couple of remarks.
    I believe that this change in the census, the inclusion of 
this, is done in bad faith. It is not done with the real 
purpose of helping civil rights or anything else. Its intent is 
to frighten people in immigrant communities from participating 
in the census. Its intent is to prevent not only undocumented 
people but perfectly documented immigrants, families of 
immigrants, citizens, from participating. They want to short-
count immigrant communities.
    At least the chairman of the committee is truthful and 
forthright about his intent, but the administration is 
hypocritical about its intent. It is attempting to deliberately 
sabotage the census for raw, partisan, political purposes. It 
is attempting to discriminate against immigrant communities, 
citizens and noncitizens alike. Its conduct is disgusting, 
immoral, and hypocritical. And it must be overturned, even if 
that means that they do a bad census and we have to do another 
one 2 or 3 years later.
    I yield back.
    Mr. King. The gentleman's time has expired.
    And I thank the gentleman.
    Without objection, other members' opening statements will 
be made part of the record.
    And our first witness is Steve Marshall, the attorney 
general of Alabama. And the second witness is J. Christian 
Adams, the president and general counsel of the Public Interest 
Legal Foundation. Our third witness is Dr. Steve Murdock, a 
former Census Bureau Director and currently professor of 
sociology at Rice University. And our fourth and final witness 
is Dr. Steve Camarota, the director of research for the Center 
for Immigration Studies.
    The light will switch from green to yellow, indicating that 
you have 1 minute to conclude your testimony. When the light 
turns red, it indicates the witness's 5 minutes have expired, 
and we hope you can summarize your testimony some time near 
that point.
    Before I recognize the witnesses, it's a tradition of this 
subcommittee that they be sworn in. So please stand.
    Do you swear that the testimony you are about to give 
before this committee is the truth, the whole truth, and 
nothing but the truth, so help you God?
    Thank you. You may be seated.
    Let the record reflect that all the witnesses responded in 
the affirmative.
    And I now recognize General Marshall for your testimony.
    Mr. General Marshall.



    Mr. Marshall. Chairman King, thank you. Ranking Member 
Cohen and distinguished members of this body, I'm honored to 
appear before you today and appreciate your invitation to 
discuss specifically the implementation of the proposed 
residence rule of the 2020 census.
    Last month, the State of Alabama filed a lawsuit in Federal 
court challenging our expected loss of representation in 
Congress and in the Electoral College as a result of the Census 
Bureau's counting of illegal aliens for purposes of 
    As stated in our complaint and as joined by Congressman Mo 
Brooks, who is here with us today, Alabama is set to lose one 
of its seven congressional seats and one of its nine electoral 
votes--a seat and a vote it would not lose if illegal aliens 
were excluded from the apportionment base.
    Not only would this skewed result rob the State of Alabama 
and its legal residents of the rightful share of 
representation, but it plainly undermines the rule of law. If 
an individual's presence in our country is in violation of 
Federal law, the question is, why should the States in which 
they reside benefit from their illegal status?
    On February 8, 2018, the U.S. Census Bureau promulgated the 
residence rule governing the implementation of the 2020 census. 
To be counted in the census, a person must meet the Census 
Bureau's ``usual residence'' definition--that is, anyone who 
has a U.S. residence where they live and sleep most of the 
    The rule explicitly requires that citizens of foreign 
countries be counted toward the population of their resident 
State, a population total used to calculate the number of 
Representatives and electoral votes each State receives, 
regardless of whether they are here legally.
    If the rule is implemented, States with illegal alien 
populations risk losing representation in the U.S. House of 
Representatives and votes in the Electoral College to States 
with higher illegal alien populations.
    According to an expert hired by our office, much like 
Alabama, Ohio is likely to lose a congressional seat and an 
electoral vote. Montana will not gain a congressional seat and 
electoral vote it would have otherwise gained. To the contrary, 
both Arizona and Texas will likely gain one congressional seat 
and one electoral vote. California is expected to keep one 
congressional seat and electoral vote that it would not have 
otherwise if illegal aliens had not been counted for the 
purposes of apportionment.
    I should note that the 2020 would not be the first time 
that illegally present foreign nationals were counted in the 
decennial census. In previous censuses, the Census Bureau has 
failed to exclude illegal aliens from the population counts of 
each State. Thus, it is critical for action to be taken to 
resolve this issue.
    In 2010, for example, Louisiana, Missouri, and Ohio each 
lost one seat in the House and one vote in the Electoral 
College. Montana failed to gain a seat and electoral vote it 
would have gained had illegal aliens been excluded from the 
apportionment base. By contrast, California gained two seats 
and an electoral vote that it would not have acquired if 
illegal aliens had been excluded from the apportionment base.
    The reapportionment of House seats and electoral votes is a 
zero-sum proposition. One State's gain is another State's loss. 
Illegal immigration impacts the distribution of seats in the 
House of Representatives and the Electoral College because the 
United States illegal population is both large and highly 
concentrated. Thus, the practice of including illegal aliens in 
the census has repeatedly resulted in the unlawful distribution 
of additional House seats and electoral votes to States with 
high numbers of illegal aliens from States with low numbers of 
illegal aliens, robbing those States and their citizens of 
their rightful share of representation and political power.
    Further, this creates a potential disincentive for States 
with large illegal alien populations to cooperate with Federal 
immigration authorities seeking to enforce the laws that 
Congress has enacted.
    The irony, of course, is that illegal aliens cannot vote; 
therefore, they are not the ones who gain from being included 
in the apportionment base. In a State in which a large share of 
the population cannot vote, those who do vote count more than 
those who live in States where a larger share of the population 
is made up of U.S. citizens. In these States, Representatives 
and electors will represent a smaller number of constituents 
than their counterparts in States with lower numbers of illegal 
    Large illegal alien populations indisputably redistribute 
power from Americans living in States comprised mostly of U.S. 
citizens and permanent legal residents and give it to others 
who live in States with larger illegal alien populations 
compromising the right of equal representation.
    We are not without recourse, and we have chosen to be 
proactive on this issue. The State of Alabama's lawsuit asked 
the court to declare the residence rule unlawful. We assert 
that apportionment of the House of Representatives and the 
Electoral College based on census data that counts illegal 
aliens in the population figures is unconstitutional because it 
violates the principle of equal representation.
    I see that my time is about to expire. I will yield for 
questions at a later time.
    Thank you, Mr. Chairman.
    Mr. King. This chair thanks General Marshall for his 
testimony and now recognizes Mr. Christian Adams for his 


    Mr. Adams. Thank you, Chairman King, Ranking Member Cohen, 
and members of the subcommittee.
    My name is Christian Adams. I am president and general 
counsel of the Public Interest Legal Foundation and also served 
as an attorney in the Voting Section of the Department of 
Justice. I brought multiple enforcement actions under the 
Voting Rights Act and have since brought dozens of cases 
relying on census population data.
    The Trump administration's decision to include a 
citizenship question in the 2020 census is the right decision. 
Justice Department officials charged with enforcing the Voting 
Rights Act will enjoy more precise citizen population data and, 
thus, enhance the enforcement of civil rights laws. A census 
that collects robust citizenship data will also give 
policymakers the chance to curb the real everyday foreign 
influences in our election.
    Having access to robust citizenship data will be extremely 
useful at the Justice Department. Without robust citizenship 
data, ambiguities and conjecture can impair enforcement of the 
Voting Rights Act. It should not be acceptable to overlook 
small jurisdictions for Voting Rights Act enforcement, but that 
is precisely what has happened over the years without robust 
and precise citizenship data.
    Consider the case of Lake Park, Florida, a small town in 
Palm Beach County. The record will establish that I was one of 
the lawyers who signed the Voting Rights Act complaint in the 
case of United States v. Town of Lake Park.
    In the 2000 census, 48 percent of Lake Park residents were 
African American, but in 2009 not a single black candidate for 
town council had ever won a seat. A large noncitizen Haitian 
population, however, made it less clear what the precise 
African-American citizenship population was in Lake Park.
    Remember, the Department may not bring a section 2 case 
unless a district may be drawn where minority citizens comprise 
a compact majority. Yet one could not turn to the census in 
2009 for precise citizenship data because precise citizenship 
data were not collected in the 2000 census.
    Voting Rights Act enforcers without robust citizenship data 
will necessarily operate in a degree of statistical fog.
    While it is true that the United States alleged that Lake 
Park contained a sufficiently large black citizenship 
population to justify the case, the extraordinarily large black 
population, more than 40 percent, made that an easier assertion 
to make. Nonetheless, it was impossible to know the precise 
level of citizenship in Lake Park.
    Now, some have attacked President Trump's decision to 
collect precise, robust citizenship data and question the 
justifications for that improvement made by Acting Assistant 
Attorney General John Gore. As I have shown in the Lake Park 
case, those critics are flat-wrong. Collecting robust 
citizenship data will aid enforcement of the Voting Rights Act.
    If you simply look at the Voting Rights Act complaints 
filed in section 2 cases, which I detail in great length in my 
written testimony, you will see over and over again the 
Department relies on citizenship data. If you look at United 
States v. Euclid School Board, the complaint relies on 
citizenship estimates.
    A particularly revealing case is United States v. The 
School Board of Osceola County, a case in Florida from about 14 
years ago. In that case, the Department made an allegation in 
the complaint that a majority of citizen voting-age population 
in one illustrative district could be drawn for minorities. 
They made the specific allegation of citizen voting-age 
population. But the truth is that the Department did not enjoy 
access to that data because it did not exist. They had to use 
estimates as opposed to precise data.
    I talk about a South Carolina case that I worked on, United 
States v. Georgetown County School Board, and other cases. You 
can read the complaints yourself--United States v. City of 
Boston, United States v. Osceola County, and on and on and on.
    It is simply wrong to claim that enhanced robust 
citizenship data would not aid enforcement of the Voting Rights 
Act. Correctly ascertaining the citizenship populations, 
particularly in areas where the racial minority has sizable 
numbers of noncitizens distributed throughout the geographic 
area, would greatly aid Justice Department staff in correctly 
and precisely enforcing the Voting Rights Act.
    Thank you, Mr. Chairman.
    Mr. King. Thank you, Mr. Adams.
    The chair now recognizes Dr. Murdock for 5 minutes.
    Dr. Murdock.


    Mr. Murdock. Thank you for the opportunity to be here. I 
appreciate having been----
    Mr. King. Could you pull that microphone a little closer?
    Mr. Murdock. Sorry. I appreciate having the opportunity to 
speak to you today.
    Let me tell you a little bit about my background. I 
previously served as Director of the U.S. Census Bureau under 
George W. Bush and as State demographer of Texas, having been 
appointed to that position by Governor Rick Perry. I have, 
therefore, worked for both Republicans and Democrats, in terms 
of doing demographic analysis.
    I have also served as a faculty member at Rice University 
and several other universities. And for more than 35 years, I 
have performed substantive analyses of how demographic and 
socioeconomic change impact the forms and types of development 
in rural and urban communities.
    I understand that the proposals you are discussing today 
are the subject both of litigation and legislation, so let me 
state the obvious: I am neither a lawyer nor a legal scholar. 
Therefore, I cannot offer an informed opinion on the intent of 
the Founding Fathers or subsequent legislators with respect to 
the meaning of the U.S. Constitution's original census clause.
    I can assure you, based on my and many other demographers' 
experience, the Census Bureau follows the guidance of the U.S. 
Department of Justice, as well as its own counsel, with respect 
to whom it should include in the Nation's constitutionally 
required decennial enumeration of the population. In other 
words, the Census Bureau follows the requirements set out by 
law, in terms of performing its duties.
    The Justice Department reaffirmed the position of the 
Census Bureau in 1989 and was part of the oversight--and was 
dealt with by the oversight subcommittee during the 
administration of President George H.W. Bush.
    I and many other scholars and officials using census data 
have concerns related to the implementation of the census and 
the factors you may want to weigh as you consider proposals 
that directly or indirectly require the Census Bureau to 
include questions on citizenship and immigration status on the 
decennial form.
    The inclusion of such questions may adversely affect the 
accuracy of census data and, thus, their utility for 
apportioning seats in the U.S. House of Representatives among 
the 50 States and for developing the boundaries of House 
districts within States. Such questions should not be included 
in the census until they have been thoroughly tested, including 
field testing.
    Beyond the fundamental uses for redistricting, as all of 
you know, census data help guide the prudent distribution of 
many billions of dollars in Federal and State assistance to 
local communities, guiding their expenditures for healthcare, 
education, rural hospitals, infrastructure, et cetera.
    Civic and business leaders rely on accurate data from the 
census and other data sets for which the census provides 
baseline data to attract and retain vital businesses and the 
investments that they involve. In addition, businesses use 
census information to guide such decisions as where to locate 
plants and stores, et cetera.
    In fact, when I served as State demographer, I received 
many requests for data that could be readily obtained, directly 
or indirectly, from the census to inform the work of State 
agencies as well as private-sector entities.
    I recognize the delicate balance that must be achieved to 
ensure that all those residing in the United States are 
included in determining the demographic base for the proportion 
of House seats. Thus, despite the fact that data apparently 
have been successfully collected on citizen status for some 
purposes, I am concerned about how the inclusion of questions 
that directly solicit information on citizenship and 
immigration and legal status from every person residing in the 
Nation will affect the completeness of the census count for the 
primary constitutional purpose of the census: the distribution 
of House seats among the States. At the same time, State and 
local agencies and planners, et cetera, are using such data 
    Preparations for the census are complex. We know that 
they're involved in a number of dress rehearsals at the present 
time. But I think most people--and I was among those six Census 
Directors that signed the letter referred to earlier--believe 
that adding untested questions on citizenship and immigration 
status at this point in the decennial planning process would 
put the accuracy of the enumeration and success of the census 
in all communities at risk.
    While the ongoing American Community Survey and earlier 
surveys have included a question on citizenship, data 
collection for all census areas have not included such a 
question since 1950, a very different time in terms of our 
Nation's history.
    Mr. King. Thank you, Dr. Murdock.
    And now the chair would welcome back to the committee and 
recognize Dr. Camarota for his 5 minutes of testimony.


    Mr. Camarota. As the chairman said, my name is Steven 
Camarota. I am director of research at the Center for 
Immigration Studies. And I would like to thank the committee 
for allowing me to testify today.
    Now, in my oral testimony, I would like to emphasize just 
three points: First, it has been the norm to ask a citizenship 
or related question in prior decennial censuses; second, there 
is value in doing so; and, third, at present, there is no 
evidence that reinstating this question on the census would 
reduce response rates.
    Let me begin with just a little bit of history. From 1820 
to 1950, except for 1840, the decennial census included at 
least one question on citizenship or place of birth. 
Immigrants, of course, can be identified, then, from the 
country of birth they report. From 1960 to 2000, a question on 
citizenship or place of birth was asked to a subset of the 
population, roughly 10 million to 17 million households, taking 
part in the census.
    Other than 1840, the 2010 census was the first time since 
1820 that neither data on citizenship nor country of birth was 
collected in the decennial census for at least some share of 
respondents. In short, there is nothing unusual about asking 
about citizenship or related questions in the census.
    Second, there is value in doing this. The Census Bureau, in 
its memorandum outlining its reasons, pointed out that it would 
be very helpful in enforcing the Voting Rights Act. Now, I 
would like to add that, from the perspective of a researcher, 
it would be very helpful to have this information.
    Some may think that because we already ask citizenship in 
other surveys administered by the Bureau that we don't need to 
do it in the census. But in my many years working as a 
contractor for the Census Bureau evaluating the citizenship 
data in the American Community Survey, it was always 
challenging to find ways to measure the actual accuracy of that 
question. Then, as now, there is no definitive government data 
on the number of citizens residing in the United States that we 
could ever compare the survey results to. A citizenship 
question on the census would certainly provide much useful 
information in that regard.
    Now, my third point is that, while some may have expressed 
concern that adding the question back into the census may 
reduce response rate, at present there is no evidence that this 
would happen. There's just a concern. The argument is that, 
while citizenship was asked in many past censuses and is asked 
in many ongoing Census Bureau surveys, the candidacy and 
election of Donald Trump may have changed things. In 
particular, the idea is that stepped-up enforcement has created 
what might be called a Trump effect. That's my word.
    It is true that the Center for Survey Measurement, part of 
the Census Bureau, did conduct some interviews and focus groups 
with field representatives and respondents on this potential 
problem and found that there was heightened concern that the 
enforcement of immigration laws may be affecting people's 
willingness to take part in government surveys. However, the 
Census Bureau, when it put that data out, it said that the 
survey was very small and it was unrepresentative--their words. 
So it's hard to know what, exactly, to make of it.
    But we can, actually, get some idea of whether collecting 
citizenship data has become uniquely problematic, particularly 
in the Trump era. I discuss this more in my written testimony, 
but we can look at this question by first looking at the 
refusal rates right now on the Census Bureau's American 
Community Survey. It asks about citizenship. And it is true 
that there has been an increase in the share of people refusing 
to take part in that survey since 2005. But that increase began 
well before President Trump threw his hat into the ring. 
Moreover, the rates have not gone up faster in high-immigration 
States. So if refusal had something to do with immigration 
status, we would expect that to be the case, but it isn't.
    We can also look at the Census Bureau's Current Population 
Survey, which also asks about citizenship and is collected each 
month. There has been no noticeable shift in the number of 
people who identify as immigrants from June 2015, when Trump 
threw his hat into the ring, to January of this year.
    We can even dive a little deeper into that survey and look 
at those joining the survey each month for the first time, this 
so-called incoming rotation group. There has been no noticeable 
increase in what is called allocation rates on the citizenship 
question through January of this year. In other words, people 
coming into the survey have not been refusing to say whether 
they're citizens or not at any higher rates. And we have data 
through the first part of this year.
    In sum, neither the CPS or ACS indicate that collecting 
citizenship data has become more difficult in the era of Donald 
    In sum, asking a question on citizenship or place of birth 
has been the norm; doing so, second, has value; and, third, at 
present, there is no evidence that reinstating the question 
would actually impact response rates.
    Thank you.
    Mr. King. That concludes the witnesses' testimony. And now 
the chair will recognize himself for his 5 minutes of 
    And I thank you all for your testimony here.
    Dr. Camarota, I was just thinking about some of the 
testimony maybe 10 years ago or so on this same topic that you 
delivered. It seems to me that in that testimony--and I didn't 
check this for 10 years, so--but it seems me that your 
testimony was that if we counted citizens rather than persons 
the reapportionment would result in between 9 and 11 
congressional seats shifting from States like Florida, Texas, 
California to States like Utah and Indiana at that time.
    Do you recall that testimony, and does that fit your 
perspective today?
    Mr. Camarota. Yes. Remember, there are about 20 million 
noncitizens living in the United States. In the census, we 
would expect about 10 million illegal immigrants to show up and 
about 10 million persons here legally in various statuses, 
mostly green cards. So that 20 million looks like it would 
still redistribute somewhere between 9 and 11 million seats in 
the House of Representatives.
    Mr. King. Nine to 11 seats.
    Mr. Camarota. Seats, right, that would change hands.
    Mr. King. Okay. Thank you. I appreciate that, Dr. Camarota.
    I would like to turn to Attorney General Steve Marshall. 
And what I didn't hear in this testimony from anybody on this 
panel is, what should it look like if this country were 
functioning properly and appropriately? What would be the 
configuration of our electoral laws in the country?
    And if we're going to try to get to the ideal--I would 
always like to see what's the pattern that we'd like to reach 
here and get our country fixed so it's functioning correctly. 
What would that America look like within the context of this 
electoral law that we have?
    Mr. Marshall. Mr. Chairman, I can say from my perspective--
and this is somebody that's a prosecutor. You know, I'm not a 
policymaker. But I believe in the rule of law. And that means 
that we enforce our laws equally across the spectrum of 
immigration so that we don't create in this situation an 
incentive for sanctuary cities or for certain localities to not 
enforce our immigration laws and that we adhere to the 
Constitution and that we allow for that Constitution to be 
implemented and interpreted as our Framers intended.
    And so the nature of our lawsuit, a little bit different 
than some of the testimony you've heard here, is specifically 
about those who will be counted for purpose of congressional 
apportionment. And the reason why we are advocating against the 
residency rule that exists right now is that, currently, that 
information that we need to believe that the residency rule 
should be done and adopted as intended, that information is not 
being collected. And although there were comments provided to 
the Census Bureau when the residence rule was adopted, those 
comments were never addressed specifically relating to what we 
have alleged here.
    And so our opportunity, specifically, is to put in front of 
a Federal judge this claim to seek relief and then allow for 
that judge to be able to fashion a remedy that's consistent 
with the law as stated.
    Mr. King. You had stated that you're not a policy person, 
but I would still ask you a policy question, which is: If you 
were going to design a census series of questions--I mean, I 
understand you'd would want to, ask are you a citizen? Would 
you also advocate for asking for, if you're a legal immigrant, 
under what status is that legal position--say, a green card or 
a visa or whatever the case may be? And then, from beyond that, 
the omissions on that status if you're not legal would be, 
then, an illegal.
    Would you advocate for collecting all that data so we know 
who is here and why?
    Mr. Marshall. The simple answer is yes. You know, for us in 
the claim that we have here and from a policy perspective, not 
only would we want to know your citizenship but also whether or 
not, if you're here illegally, have you overstayed your 
welcome, in essence, the status you were granted, or have you 
ever even been granted status in the first place. And by having 
that information, it would allow us to do an appropriate 
apportionment of those congressional Representatives and the 
Electoral College.
    Mr. King. And what I'm hearing in some of the statements 
made up here on this panel, discussion about semantics rather 
than policy. And I would advocate what you've described is the 
policy we need to get to, regardless of how the semantics are 
argued out here.
    And I would point out a statement made by Ninth Circuit 
Judge John Noonan in 1985 when he said this: ``If there were an 
invading army on American soil, one does not suppose the Bureau 
of Census would count the enemy troops,'' close quote.
    Any comments on that, General?
    Mr. Marshall. No, again, other than, as somebody who has 
spent a career enforcing the law, I believe that we have that 
responsibility across our country.
    Mr. King. And I'd turn to Dr. Camarota for his comment 
because I saw his facial expression.
    Mr. Camarota. Yes, that would seem to not--you know, I'm 
not a constitutional lawyer, but it does seem to violate the 
spirit of, sort of, the Constitution to count an invading Army. 
That's for sure. But, under the current rules, if they were 
residing and that was their usual place of residence, of 
occupation, I guess they would have to attempt to be counted.
    Mr. King. We would have to draw a distinction between an 
invading army and an unarmed invading group of illegal aliens.
    My time has expired, but I want to give deference to Dr. 
Murdock, who waved his hand. I don't expect the ranking member 
will object.
    Mr. Murdock. Okay. Yes, I think the thing here that's 
important to understand from the standpoint of the Census 
Bureau is the Census Bureau does very careful work. It tests 
things to ensure that they, in fact, are responded to in ways 
that are logical and which reflect their status--that means 
citizen status--in a variety of ways.
    I think what upset many of us that signed that letter that 
you saw, the six of us, was that we really haven't had the time 
or haven't taken the time--I won't fight over that--to evaluate 
these questions the way we evaluate every question, not just 
these questions but other questions on other elements that are 
    And so what the Census has been asking for or suggesting is 
that, if we want the same accuracy with those kind of questions 
that we have with others, we need to allow the testing and 
other procedures to be performed with the Census.
    Mr. King. Thank you, Dr. Murdock.
    Mr. Murdock. These have come late in the process.
    Mr. King. Thank you.
    The chair would now recognize the ranking member, Mr. Cohen 
of Tennessee.
    Mr. Cohen. Thank you, sir.
    Dr. Murdock, do you know what findings were made to support 
the conclusion that adding the citizenship status question 
would help enforce section 2 of the Voting Rights Act or other 
laws that protect the voting rights of racial minorities? Do 
you know whether research was conducted and whether the 
research and findings were released publicly?
    Mr. Murdock. Well, the Census is looking into some of these 
issues right now. The issue, as people have indicated, has been 
there for some time, but the problem is not so much the item 
but introducing it into the process where we are.
    Understand that we are, in census terms, very close to the 
next census, and we will therefore have a census form, some 
questions of which have been used and tested, et cetera, and, 
on the other hand, items that most of us who are former Census 
Directors would argue require additional research and analysis 
before they're implemented.
    Mr. Cohen. Do you believe the fact that citizenship has 
been asked on the ACS suffices to test the question for 
inclusion on the decennial form?
    Mr. Murdock. You know, the ACS is a very valuable data 
collection source for lots of reasons. It does not replace, you 
know, what you want to obtain in terms of information for 
issues, other kinds of issues.
    This requires--and I think most of us as Census Bureau 
Directors would say this--this requires an assessment and a 
testing process. This should be treated like other elements on 
the census form. And as Census Directors, what we are arguing 
is that, if you do not do that, things will occur that will be 
difficult for you to ameliorate.
    Mr. Cohen. Many in the civil rights and voting rights 
communities have been concerned since the Shelby v. Holder 
decision that section 2 of the Voting Rights Act needs to be 
restored, that the Voting Rights Act has lost much of its 
    Can any of you tell me which organizations--and they would 
be the organizations, naturally, to speak up, civil rights or 
voting rights advocates--have requested pushing for citizenship 
status as a way to help enforce section 2 of the Voting Rights 
Act? Which groups have done that? Can anybody help me with 
    Mr. Adams. Mine has. My group has done that.
    Mr. Cohen. And have you participated in bringing actions 
under the Civil Rights Act?
    Mr. Adams. Yes.
    Mr. Cohen. Which actions have you brought?
    Mr. Adams. A number of them. Davis v. Guam. We've brought 
more than two dozen cases relying on census citizenship data. 
My testimony got into great detail on that point.
    Mr. Cohen. Thank you.
    General Marshall, has Alabama been a party to any section 2 
cases where they have been the initiating party?
    Mr. Marshall. Mr. Cohen, I'm not aware of that 
specifically, but I'll be glad to be able to provide a written 
reply if we determine that----
    Mr. Cohen. Would having citizenship information on 100 
percent of the population improve the enforcement of section 2 
in Alabama?
    Mr. Marshall. Again, I can't comment on that, but I'll be 
glad to provide written testimony.
    Mr. Cohen. Thank you, sir.
    Is Roger Bedford alive and well?
    Mr. Marshall. He is alive and well, yes, sir. I will be 
glad to send him your regards.
    Mr. Cohen. Please. We've known each other a long time. 
Thank you.
    Dr. Murdock, are there any other things you'd like to 
comment on?
    Mr. Murdock. Excuse me?
    Mr. Cohen. Would you like to comment on any other----
    Mr. Murdock. Only as a former Census Director, when you 
look at the processes that the Census has implemented, for this 
issue or many others, these are tried and true processes for 
the evaluation of information or questions that you want to use 
in the census and similar kinds of procedures.
    So I think for most of us, all of us, in fact, signing that 
letter as Directors, our concern was not to change the pattern 
and suddenly start putting in issues that might be politically 
popular or unpopular but which have not been tested in the very 
strict, empirical kind of way that census data questions and 
issues are normally tested.
    Mr. Cohen. Thank you.
    And I yield back.
    Mr. King. The gentleman returns his time.
    The chair would now recognize the chairman of the full 
committee, Mr. Goodlatte from Virginia, for his questions.
    Chairman Goodlatte. Thank you, Mr. Chairman.
    Attorney General Marshall, what do you believe is Congress' 
role in rectifying the concern that you raise in the State's 
    Mr. Marshall. Mr. Chairman, I think you have a couple of 
    Number one, you obviously exercise congressional oversight 
of the Census Bureau, and so you have the ability to inquire 
and engage in the discussion that we hear about today. 
Specifically for us in Alabama is this issue of the inclusion 
of information for purposes of congressional apportionment.
    You obviously are that body that makes law. You have the 
ability to be directly involved in being able to change our 
statutes to make sure that we can rectify what we believe is an 
unconstitutional act by the Census Bureau in the adoption of 
this rule itself.
    And then, beyond that, I think, to be very much engaged in 
the litigation that we're involved with, to be able to see that 
Congressman Brooks has taken a bold statement to be able to 
make sure that we're going to stand for the rule of law. And 
you have the ability to stand with that as well.
    Chairman Goodlatte. Your complaint alleges a number of 
legal theories as to why illegal aliens should not be counted 
for purposes of apportionment. Which do you believe a court 
will find most compelling?
    Mr. Marshall. Mr. Chairman, I'm a litigator, so I'm not 
going to concede anything. Having said that, I do think that 
the APA violations specifically are the most straightforward 
allegations, specifically that when the rule was proposed that 
there were comments made specifically relating to the 
allegations that we make in the complaint, and there was no 
response to those comments at all.
    Chairman Goodlatte. Would you give us a little more detail 
on the Administrative Procedures Act?
    Mr. Marshall. Specifically two allegations, one of which is 
the adoption of the rule itself was arbitrary and capricious, 
and that relates to the failure to be able to comment on that 
rule itself, but we also believe the Census Bureau exceeded 
their statutory authority when they adopted the rule to begin 
    Chairman Goodlatte. And how do you distinguish your suit 
from the case that the U.S. Supreme Court considered in Evenwel 
v. Abbott?
    Mr. Marshall. Two very specific grounds. Number one is that 
that case involved an intrastate question. It was not 
challenging it in a broad basis but actually within the State 
itself. And what we have seen is the Supreme Court has given 
great deference to intrastate issues in this area, as opposed 
to those that affect a national basis like we have here. And we 
believe, for those two very specific reasons, that case is 
distinguishable from the action that we filed.
    Chairman Goodlatte. Thank you.
    Mr. Adams, the attorney general's Alabama lawsuit against 
the Census Bureau argues that, by including illegal immigrants 
in its count of the population, the Census Bureau is depriving 
that State, along with other States with relatively low numbers 
of illegal immigrants, of representation in the U.S. House of 
Representatives and also votes in the Electoral College that 
determine who is elected President.
    Can you elaborate more on the unfairness of that current 
situation with regard to these States?
    Mr. Adams. Thank you, Chairman Goodlatte.
    Americans should be electing American leadership. And it is 
undeniable that that situation that you described is occurring. 
I think both sides of the aisle would agree that some States 
are getting more electoral votes because aliens are being 
counted for apportionment.
    Now, is that something that most Americans are happy with? 
I would venture to say that's something that they would 
disagree with strongly.
    Chairman Goodlatte. Mr. Camarota, how does the current 
system disincentivize States with large illegal alien 
populations from cooperating with Federal immigration 
    Alabama's lawsuit argues that including illegal immigrants 
in the census will likely cause it to unfairly lose part of its 
share of the almost $700 billion distributed each year by the 
Federal Government in grants and other funds.
    Can you describe why it is unfair to financially penalize 
States that have fewer illegal aliens?
    Mr. Camarota. Right. So the bottom line is that political 
influence, as well as funds, is distributed based on the 
results of a census. So if you have people who are not supposed 
to be in the country but are residing in a State, the State has 
every incentive for them to be counted. So it means more money 
for the State. It means more political influence in Congress. 
It means more political influence over who elects the 
    So the incentives are certainly all on one side for the 
State with the large illegal population; that's for sure.
    Chairman Goodlatte. Thank you, Mr. Chairman. I yield back.
    Mr. King. The chairman returns his time.
    The chair would now recognize the gentleman from Maryland, 
Mr. Raskin, for 5 minutes.
    Mr. Raskin. Mr. Chairman, thank you very much.
    Let's see. I thought I would start with you, Attorney 
General Marshall. Welcome, and thank you for your testimony.
    As I understand it, your argument is that the Constitution 
forecloses the ability to ask about the presence of noncitizens 
in the country. Is that right?
    Mr. Marshall. No. What our litigation specifically is about 
is the use of illegal aliens in the count for purposes of 
congressional apportionment.
    What we believe is that those who are in this country 
either exceeding their lawful authority or who do not come into 
this country legally in the first place should not be counted 
specifically for purposes of congressional apportionment as it 
relates to not only the Members of this body but also for the 
Electoral College.
    Mr. Raskin. Okay. And so I guess I come back to a question 
the chairman asked. It seems like the Supreme Court ruled on 
this in Evenwel v. Abbott, where it said that the plaintiffs 
had no basis to challenge the decision to apportion 
Representatives based on total population rather than citizen 
voting age population.
    And I don't quite know how the interstate/intrastate 
argument affects the fact that the Supreme Court has precluded 
your argument, but maybe--can you illuminate that?
    Mr. Marshall. Again, I mean, we could be here for a while, 
probably, to be able to distinguish that. And I'll be glad to 
provide additional written testimony that shows specifically 
why we believe that that case is distinguishable where we are.
    But I do think that the intrastate and interstate 
distinction is critical based on prior precedent in how the 
court has carefully scrutinized those issues.
    Mr. Raskin. Okay. Let me ask you this: Do you consider 
yourself an originalist in terms of constitutional 
    Mr. Marshall. Yes.
    Mr. Raskin. Okay. Do you know that the original censuses, 
which were created basically by the same people who wrote the 
Constitution--Madison, Jefferson--did not include any question 
on aliens or citizenship?
    Mr. Marshall. I think also--and, again, this is one where 
we can provide additional written testimony--that we're 
prepared to present as part of our litigation significant 
history of that particular clause of the Constitution as well 
as how it was interpreted going forward----
    Mr. Raskin. Okay.
    Mr. Marshall [continuing]. And we believe that it only 
included those who were in this country lawfully.
    Mr. Raskin. Okay.
    The 1790--I just got the information from the Library of 
Congress. The 1790 census had no question on citizenship, 
immigration, or birthplace. The 1800 census had no question on 
citizenship, immigration, or birthplace. And the 1810 census 
had no question on citizenship, immigration, or birthplace.
    So forget the last 60 years of practice, which is 
consistent, that the original interpretation by the Founders of 
the country and the Framers of the Constitution was not to 
require that question. So that's just something you might think 
about in terms of fleshing out the argument.
    But let me pose a different kind of question, which is, are 
you aware that for most of American history noncitizens could 
vote in most of the States?
    Mr. Marshall. Most of the States, but also there's a 
distinction between Federal elections as well.
    Mr. Raskin. Yeah. But in Federal and State and local 
elections. In fact, the Republican Party was the great champion 
of noncitizen voting. In the run-up to the Civil War, the 
Republican Party took the position very strongly that 
noncitizens had the right to vote. The Supreme Court repeatedly 
authorized that, including in Minor v. Happersett.
    And the Southern States, of course, opposed it; they were 
opposed to noncitizen voting. And the very first article of the 
Confederate constitution stated that you had to be a citizen in 
the Confederacy in order to vote there, but that view lost 
during the Civil War. And then after the Civil War, noncitizen 
voting spread across the country.
    The practice was called declarant alien suffrage, that if 
you declared that you were planning to become a citizen, they 
would give you the right to vote in most places.
    But, generally, the view was, from the beginning of the 
country, if you were white, you were male, you owned property, 
your citizenship was completely irrelevant to whether or not 
you had a right to vote.
    So it just seems to me that you're trying to put a gloss on 
the Constitution that was never there. Now, that might be good, 
it might be bad. You know, we could rewrite it. But don't you 
think the proper road to go for those who want to put a 
citizenship question and want to impose the citizenship 
requirement for voting, which has never been there, is to amend 
the Constitution? Don't you think we need to do that?
    Mr. Marshall. No. I think that--and our litigation will 
establish clearly that that was the intent. And we believe that 
the Federal judge will rule in our favor to be able to include 
that information.
    Mr. Raskin. Thank you.
    Mr. Murdock, let me ask you, what's the usual process for 
adding new questions to the census? Because a lot of us aren't 
familiar with that. How does it work?
    Mr. Murdock. Well, generally, what happens is there is a 
need that is recognized by governmental and other entities to 
provide information on a particular item. The census gets a 
very large number of suggestions of things that they should 
analyze, and----
    Mr. Raskin. Is there an administrative process with notice 
and comment----
    Mr. Murdock. Yes.
    Mr. Raskin [continuing]. And hearings and so on?
    Mr. Murdock. Yes. They have a committee that--well, in 
terms of the census, they have committees that they create----
    Mr. Raskin. Okay. Has that taken place here or has that 
process been short-circuited, with respect to this citizenship 
    Mr. Murdock. I'm not sure about that particular question 
right now, but it has historically been one that has been 
examined very thoroughly.
    Mr. Raskin. Well, what's different about this process is I 
guess what I'm asking. Because you were saying that there's a 
major process problem.
    Mr. Murdock. Well, I don't believe there's a process 
problem. There may be a timing problem, in terms of how long 
we've been with a great emphasis on one particular view here. 
Census tries not to be someone who is Democratic or Republican. 
It sees itself as being an objective purveyor of information 
and obtainer of information.
    That requires that, when you have an issue that someone 
brings up--and there are thousands of issues that people would 
like put on census forms--the Census has committees then that 
analyze this, reduce it to a small number of items that they 
think fit within their mandate of what they're supposed to do. 
And then they determine whether or not they want to, and in 
many cases do, do their own tests of whether they can 
accurately and adequately obtain information on that particular 
    So the Census is very careful about adding items. They 
don't just, you know, decide, well, wouldn't it be fun to know 
X, Y, or Z. They have a very careful process. And it is a 
neutral process----
    Mr. Raskin. Thank you.
    Mr. Murdock [continuing]. In terms of----
    Mr. Raskin. Thank you for your indulgence, Mr. Chairman.
    Mr. King. The gentleman returns his time.
    And the chair would now recognize the gentlelady from 
Georgia, Mrs. Handel.
    Mrs. Handel. Thank you, Mr. Chairman.
    And thank you to our distinguished panel today.
    One comment, just to clarify things for anybody who might 
be interested in reading the testimony from today and the 
comments: Irrespective of what was taking place in terms of 
voter eligibility in the 1700s and the 1800s, let's be 
perfectly clear that, today, under current law, it is patently 
illegal for a noncitizen to vote in a Federal election, period, 
full stop.
    To Dr. Camarota, when was the first time that the 
citizenship question was asked in a census?
    Mr. Camarota. 1820.
    Mrs. Handel. Thank you. When was the last time it was asked 
in a census?
    Mr. Camarota. About 17 million people received it in 2000.
    Mrs. Handel. All right.
    Mr. Camarota. 17 million households. More people, but 17 
million households.
    Mrs. Handel. Would it be fair to say that asking about 
citizenship or place of birth, including country of birth, has 
been a fairly common practice in previous censuses?
    Mr. Camarota. Either on the regular census or a very large 
subset of the population. It's been the norm, yes.
    Mrs. Handel. Okay. Great. Thank you so much.
    And, Attorney General Marshall, thank you so much for being 
here. Are noncitizens eligible to vote in Federal elections?
    Mr. Marshall. No.
    Mrs. Handel. So it's illegal for a noncitizen to vote.
    Mr. Marshall. That's my understanding.
    Mrs. Handel. All right. So, if noncitizens are ineligible 
to vote in a Federal election, why would a noncitizen be 
included in the formula for congressional apportionment?
    Mr. Marshall. That's my question to you. And that's 
specifically the question that we'll present to the Federal 
judge, is not only does it dilute the authority of certain 
States and their voters to be able to have an influence, it 
obviously overstates the authority of other States that allow 
people to be in this country and ignore the immigration laws.
    Mrs. Handel. So would it be your opinion that if 
noncitizens are ineligible by law to vote in a Federal election 
and then are included in the reapportionment formula, that that 
would indeed dilute not only the voting power of minorities 
but, indeed, the voting power of all eligible voters?
    Mr. Marshall. Yes. And, in fact, that will be a part of our 
    Mrs. Handel. Super. Thank you so much.
    And, with that, I'd like to yield my time to my 
distinguished colleague, Representative Brooks, if the chair is 
okay with that.
    Mr. King. The chair would note that we haven't allowed that 
policy in the past, our tradition on this committee, but I 
understand your--I'd love to have Mr. Brooks speak, but we 
would be breaking a long-established policy.
    Mrs. Handel. All right. Thank you.
    Mr. Brooks. Bummer.
    Mrs. Handel. Then, with that, I will yield back.
    Mr. King. The record will show the quote from Mr. Brooks 
regardless: ``Bummer.''
    So this concludes today's hearing.
    And I want to thank the witnesses for your testimony, your 
responses to the questions, and the written testimony that you 
    I want to thank the members of this committee for engaging 
in this. And I want to thank the people who came in and 
listened to this hearing today.
    And, hopefully, this moves us forward in a more 
constitutional direction than we have in the past and----
    Mr. Raskin. Mr. Chair.
    Mr. King. The chair would yield.
    Mr. Raskin. Can I just submit something for the record, a 
Law Review article?
    Mr. King. Hearing no objection--could you speak to what 
that is, though?
    Mr. Raskin. Yes. It is a Law Review article, written in 
1993 in the University of Pennsylvania Law Review, called 
``Legal Aliens, Local Citizens: The Historical, Constitutional, 
and Theoretical Meanings of Alien Suffrage.'' And I wrote it.
    Mr. King. Well, this would be an interesting thing for me 
to read.
    There's no objection heard by this chair. If so ordered, it 
shall be entered into the record.
    Mr. Raskin. Thank you very much.
    [The information follows:]
    This material is available at the Committee and can be 
accessed on the committee repository at: https://
20180608-SD002.pdf; https://docs.house.gov/meetings/JU/JU10/
    Mr. King. Without objection, all members have 5 legislative 
days to submit additional written questions for the witnesses 
or additional materials for the record.
    This hearing is now adjourned. Thank you.
    [Whereupon, at 10:16 a.m., the subcommittee was adjourned.]