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Tom Kertscher
By Tom Kertscher August 6, 2020

Fact-checking a claim about immigrants and California’s 'extra' House seats

If Your Time is short

  • Experts estimate that California has two to four more seats in the U.S. House than it would if immigrants who are in the country illegally were excluded from census counts that are used to apportion seats.

  • The Constitution mandates that all residents of the United States be counted in the census.

 

All U.S. residents, including immigrants here legally or illegally, are eligible to be counted in the national census mandated by the Constitution that’s done every 10 years.

Those counts determine how many U.S. House seats each state gets and, in turn, the number of electoral votes it gets in presidential elections.

We found no evidence to back a claim that California has six more House seats than it would have if people in the country illegally were excluded from the apportionment.

The claim "is off base," said demographer Dudley Poston Jr., an emeritus professor of sociology at Texas A&M University.

He and other experts say California likely has two to four more seats than it would without counting people in the country illegally.

But according to the U.S. Constitution, all residents are to be counted in the census and for the purpose of apportionment, regardless of immigration or citizenship status.  

The claim

On July 23 on Facebook, conservative podcast host Dan Bongino shared an article from his Bongino.com that carried this headline:

"Report: California Has Six Extra Representatives Because Illegals Are Counted in Census."

The report that article cited is actually a Facebook post published the previous day from a Facebook user called Unbiased America. It refers to the 2010 census in making the California claim.

Bongino’s Facebook post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)

It comes as President Donald Trump seeks to exclude the count of immigrants in the country illegally in determining how the House’s 435 seats are divided up after the 2020 census.

We asked Bongino via Facebook Messenger if he had any additional information we should consider in doing this fact-check. He referred us to the author of the Bongino.com article, who did not provide us any additional information.

(As we prepared to publish this fact-check on Aug. 6, Bongino’s Facebook post was no longer available. A message on Facebook said: "This Content Isn't Available Right Now. When this happens, it's usually because the owner only shared it with a small group of people, changed who can see it or it's been deleted." We archived Bongino’s original post.)

Constitution doesn’t cite legal status in counting

Regarding apportionment, the 14th Amendment to the U.S. Constitution does not refer to citizenship or residency status with regard to counting residents. It declares: 

"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."

The "Indians not taxed" clause was made obsolete by laws that granted Native Americans U.S. citizenship. Courts have held that all people be counted. 

Citizenship question on census forms

As we’ve reported, the last time all households were asked about U.S. citizenship was in the 1950 census

From 1970 to 2000, the Census Bureau used two questionnaires: a long form and short form. About 1 in 6 households received the long-form questionnaire, which included a question on citizenship. 

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The 2010 census used only a short-form questionnaire with 10 questions. It did not ask about citizenship. 

"It is impossible to know how many undocumented immigrants might have been included in the 2010 census count," John Weeks, director of the International Population Center at San Diego State University, told PolitiFact.

The Supreme Court last year blocked an effort by the Trump administration to add a citizenship question to the 2020 census, questioning its rationale. 

"Extra" seats: 2 to 4, not 6

As a result of the 2010 census, California has 53 U.S. House seats, the most of any state. Its delegation includes the House leaders of both parties: Speaker Nancy Pelosi, a Democrat, and Minority Leader Kevin McCarthy, a Republican.

We did not find evidence to back a claim of six "extra seats." The Census Bureau did not provide information to PolitiFact on whether the claim is accurate. 

According to estimates by the Pew Research Center, the Public Policy Institute of California and others, California has more than 2 million immigrants who are in the country illegally.

Poston, who has done analyses regarding the 2000 and 2020 censuses, estimated that the counting of these immigrants in the 2010 census accounts for two or three of California’s House seats. 

Ira Mehlman, a spokesman for the Federation for American Immigration Reform, which works to reduce legal and illegal immigration, estimated three or four. Steven Camarota, director of research for the Center for Immigration Studies, which uses data to argue for low levels of immigration, estimated two.

Another demography expert, University of Houston sociology professor Amanda Baumle, said the claim of six appears to be based on analyses of apportionment based on only U.S. citizens being counted, and not lawful permanent residents or other noncitizens with legal status. Immigrants without legal status, she estimates, account for three California seats.

One of the articles cited by Unbiased America, a 2007 post by Mehlman's group, says the difference would be six if only U.S. citizens were counted.

The 2020 census

Immigration status may come into play with the outcome of the 2020 census.

In July, Trump issued a memorandum directing that immigrants in the country illegally be excluded from the apportionment base following the 2020 census — that is, they would not be counted in determining how many House representatives each state gets. 

"Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of government," the memo says. 

Census and legal experts say such an action would be illegal and unconstitutional, and several lawsuits have been filed challenging the order. The suit filed by California and several other plaintiffs notes that all immigrants have been included since the first national census in 1790, and that the U.S. Constitution mandates that all persons be counted for apportionment.

In a 2012 paper, the nonpartisan Congressional Research Service said "it appears a constitutional amendment would be necessary to exclude any individuals from the census count for the purpose of apportioning House seats."

If Trump’s order withstands challenges, California, Florida and Texas would each end up with one fewer congressional seat than they would have been awarded based on population change alone; and Alabama, Minnesota and Ohio would each hold on to a seat that they would have otherwise lost, the Pew Research Center reported.

Our ruling

A Facebook post says California has six "extra" U.S. House representatives because immigrants in the country illegally are counted in the census.

Under the 14th Amendment to the U.S. Constitution, all residents are to be counted in the census for purposes of apportionment. The amendment does not refer to legal residency status.

Census and demographic experts say California would have two to four fewer seats if immigrants who are here illegally were excluded from the count used to determine apportionment of House seats. 

We rate the post Mostly False.

Our Sources

Facebook, post (archived here), July 23, 2020

Bongino.com, "Report: California Has Six Extra Representatives Because Illegals Are Counted in Census," July 23, 2020

Facebook, Unbiased America post (archived here), July 22, 2020

Email, Bongino Report content manager Matt Palumbo, Aug. 3, 2020

PolitiFact, "NY AG emphasizes key fact in citizenship question case," April 30, 2019

Pew Research Center, "How removing unauthorized immigrants from census statistics could affect House reapportionment," July 24, 2020

The White House, "Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census," July 21, 2020

National Constitution Center, 14th Amendment, accessed Aug. 5, 2020

Email, Ira Mehlman, media director, Federation for American Immigration Reform, July 31, 2020

California Attorney General, lawsuit, July 28, 2020

Washington Post, "The census citizenship question failed. But Alabama is seeking to exclude undocumented immigrants in apportioning congressional seats," Aug. 15, 2019

Email, Amanda Baumle, chair and professor, Department of Sociology, University of Houston, July 31, 2020

Congressional Research Service, "Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes," April 13, 2012

PolitiFact, "What you need to know about the Census’ citizenship question," March 28, 2018

Email, Steven Camarota, director of research for the Center for Immigration Studies, July 31, 2020

Email, John Weeks, distinguished professor emeritus of geography and director of the International Population Center at San Diego State University, Aug. 5, 2020

Center for Immigration Studies, "Shifting the Balance: How the Gang of Eight bill and immigration generally shift seats in the House of Representatives," Nov. 20, 2013

Federation for American Immigration Reform, "Illegal Immigrants Distort Congressional Representation and Federal Programs," March 2007

 

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