By Paul Schor / The Washington Post
On Tuesday, President Trump signed a memorandum — sure to be challenged in court as violating the Constitution — intended to bar undocumented immigrants from being counted for congressional apportionment next year.
This move is audacious, given its dubious constitutionality. But it is also unsurprising, given the Trump administration’s failed attempts to introduce a citizenship question to the U.S. census for the first time in decades and the inherently political nature of the census because of its role as the unique instrument of proportional representation of the states in the House of Representatives.
The question of who should count is paramount to the issue of how representative power should be distributed. The first census counted free people and enslaved people, albeit only as three-fifths of a person, but excluded untaxed Indians. The question of whether and how to count foreign citizens living in the United States dates back to the mid-19th century. Two questions underlie these debates: which areas of the country, urban or rural, Northern or Southern, would have political power; and what part of the population deserved to be represented, because race and space were inseparable. The Trump administration’s effort not to count undocumented immigrants is nothing less than an effort to redistribute political power, one that calls to mind a particularly fierce battle over the 1920 census that highlights the role of these broader fights.
Like in 2020, the 1920 census was, from the start, highly charged. In January 1920, which was then the census month, the Department of Justice’s decision to raid thousands of homes of presumed radicals in the days when the census takers were starting to canvass the population affected the accuracy of the count. The famous “Palmer Raids” not only resulted in thousands of arrests and hundreds of deportations. They also created fear and mistrust of government officials among immigrants that resulted in incomplete counts of immigrant populations across the country. A knock at the door could be harmless census takers or federal agents seeking to arrest and deport “radicals.”
Historians think that this led to an undercount of the nonnative-born population, slightly reducing the population of the states where they lived in the greatest clusters and more importantly identifying immigrants in general as a menace to the body politic. Yet despite these likely undercounts, the census accurately showed that for the first time in its history, the United States had a majority urban population. The rapid growth of the industrial states in the North due in large part to recent international migration — especially of the “new immigrants” from Southern and Eastern Europe — was poised to have political consequences. In redrawing district lines on the basis of the census count, the Northern industrial states were about to take congressional seats from the more rural Southern states.
In December 1920 and January 1921, after the results of that year’s census were in, therefore, a bitter dispute took place in the House of Representatives over apportionment and how the census could be used to deliver fair representation. Southern states and rural districts were not only threatened numerically by a census that showed an increasingly urbanized population. The census might also contain proof that black voters were being suppressed, something that could diminish congressional power of states engaging in voter suppression.
Leaders of the NAACP made the proposal that the representation of the Southern states that had disenfranchised their black citizens should be diminished accordingly. They supported enforcing a little-known clause of the 14th Amendment that created a mechanism to punish states that prevented some male citizens (i.e. African American men) from going to the polls. It provided that the census be used to compare the counted adult population and the effective voting population of a state to monitor voter suppression. If the number of adults in Southern states as counted by the 1920 census were compared against the number of voters, Congress would see that the votes of black citizens were being suppressed, the NAACP argued, and as a result, the South should lose congressional seats under this provision of the 14th Amendment.
Conservative Southern Democrats adamantly opposed any such move, of course. They fired back with their own argument about how the census should be used, by asking that non-naturalized immigrants be taken out of the population used to apportion representatives between the states, which would have hurt Northeastern and Midwestern states but not the South, where the foreign-born population was small.
Rep. William Larsen of Georgia, a Democrat, led the attack against Walter White, George Murray and William Pickens of the NAACP, repeatedly using racial slurs during their testimonies, dismissing their numerous documented examples of voter suppression and invoking past practices of voter fraud on the part of black voters to whom he gave invented names. Larsen argued that voting was a matter of state law and tried to block any attempt to investigate voter participation in the South, saying that voting laws had nothing to do with apportionment.
Yet the clear text of the 14th Amendment contradicted these claims.
The NAACP, armed with numerous charts and graphs prepared by W.E.B. Du Bois, supported an apportionment plan introduced by Rep. George Tinkham, R-Mass., who earned a reputation as a champion of African American voting rights. His plan, based on the low voter participation in the South, proposed to severely reduce the region’s representation in the House. Tinkham replied to Larsen that: “Then those 11 States have 60 Representatives more than their proportionate part, at least so far as votes cast is concerned, and that of course, as you know, and I know, is absolutely not only a fraud but one of the greatest injustices that can be committed in a Republic and in a democracy.”
The South escaped this prospect because no apportionment plan gained support from a majority. For the first time in census history, in fact, no apportionment law was passed after the census. The 1910 distribution of seats was extended, which rendered the matter moot.
The principle of proportional representation suffered greatly from this failure of the apportionment mechanism because demographic changes were not reflected in the House until after the 1930 census. Illustrating the stakes, when reapportionment finally took place, Georgia lost two seats, and Larsen chose not to stand for reelection after his district was eliminated. Racial justice also lost, but Southern conservatives were unable to exclude foreigners from the count, and apportionment continued to be based on the whole numbers of residents of the country, regardless of citizenship.
This fight revealed how, at its heart, the battle over whom to count and what questions to ask on the census is about political power. For most of its history, American political divisions have been regional, pitting urban against rural, North against South, industrial against agricultural, spatial oppositions that tended to intersect with race and ethnicity. The result is that each side looks for any advantage that might be based on tweaking the count.
The coming fight over counting undocumented residents will be about immigration on some level, and the specific language of the 14th Amendment, but at its heart, it is rooted in the same fight that took place in the House of Representatives in 1921, as the NAACP and Tinkham fought to enforce the 14th Amendment to punish the South for excluding African American voters: Who will wield power in the United States and on behalf of whom?
Paul Schor is the author of “Counting Americans: How the U.S. Census Classified the Nation” (Oxford University Press, 2017) and an associate professor at the Université de Paris. He focuses on modern American social history, especially issues related to immigration, discrimination, segregation and inequality.