Aliens Must Be Counted in Redrawing Election Districts

The central question in the U.S. Justice Department’s lawsuit challenging the 1984 Los Angeles City Council redistricting plan is rather simple: Have Latinos, who make up approximately 30% of the city’s population, been denied equal access to the local political process, and, if so, how should that be remedied?

Now the presiding judge in the case, James Ideman, has asked to be briefed on how the presence of “aliens” affects Latino voting power--that is, do they inflate the size of the Latino population and therefore increase the number of Latino districts that might result from redistricting?

This question not only distracts attention from the original claim but also resurrects an issue missing from the national political agenda since the Civil War.

Before that conflict, black slaves in the South had been denied the vote but were counted as three-fifths of a person for purposes of determining the size of Southern congressional delegations. With the South’s defeat and the abolishment of slavery, blacks attained full demographic status. Since then, the constitutional requirement for determining a state’s congressional delegation has been by a U.S. Census Bureau count of all individuals.

Thus, every census taken since our nation began to try to control immigration in the mid-19th Century has included large numbers of aliens.

The individual states are not required by law to use Census Bureau totals when they design their internal electoral systems. Yet if they base their systems on other totals, there is a well-developed body of law that indicates that whatever figures are used must reflect reliable, accurate data that do not discriminate against any segment of the population.

Since no state has the capability to independently generate population counts that meet these requirements, all but one--Hawaii--rely on census data and define “population” the same way for state and local elections as “population” is defined for congressional elections. (Hawaii uses Census Bureau totals minus individuals who are on military assignment and are non-permanent residents.)

Indeed, in a 1985 case in Chicago that is quite similar to the Los Angeles suit, a redistricting plan was agreed to with the full and explicit knowledge that the population used to design the new districts included substantial numbers of aliens.

Given the clearly established policies that govern how populations are defined for representational purposes, it is difficult to understand why the presence of aliens has been raised as a potential issue in the Los Angeles case.

The issue here is representation, not whether non-citizens are being counted to determine that representation. Surely the fact that Los Angeles now has only one Latino councilman, and indeed has had only two in this century, makes the Justice Department’s case compelling.

The consequence of raising the alien question is to link this case to the current national debate on immigration reform. The Federation for American Immigration Reform (FAIR), a conservative organization aggressively lobbying for tighter immigration control, filed suit in 1980 charging that the inclusion of illegal aliens in the census was unconstitutional. That suit was blocked by a special three-judge panel, and the U.S. Supreme Court refused to hear an appeal. FAIR is now considering filing a similar suit in 1990 challenging delegations in states such as California because they are inflated by population totals including undocumented immigrants.

By raising the immigration issue, Ideman has in effect set the stage for questioning the foundation of our entire electoral system. A ruling based on such considerations will send shock waves throughout the nation, surely leading to countless challenges involving all levels of political jurisdictions. Having laid the groundwork to broaden the scope of this case, the court has the prerogative to refocus its attention on the specific issues that were brought before it. Many jurists would argue that it is obligated to do so.

Latinos did not make the rules that govern our electoral processes, and they do not question their legitimacy. Instead, for more than a century they have struggled to have those rules applied to non-discriminatory ways. Time and again, however, as Latinos begin making inroads into the political arena, rules are either changed or manipulated to impede further gains. In the Los Angeles redistricting case they are once again asking only that their claims be evaluated by the standard that has always governed elections in California and that governs congressional elections. If the court rules on any other grounds, it will be hard to resist the conclusion that our political processes continue to be governed by two sets of rules--one for those in power, and one for those who would share in that power.