[JURIST] The state of Louisiana on Monday filed suit [text, PDF] directly with the US Supreme Court [official website] arguing that undocumented immigrants should not be counted in the US census for the purpose of determining seats in the US House of Representatives [official website]. The state alleges that it was put at a disadvantage when population totals were determined and that it lost a seat in the House because undocumented immigrants were improperly counted in census totals. The suit also alleges that “[b]ecause the population of non-immigrant foreign nationals is not distributed uniformly among the States, the inclusion of these individuals in apportionment figures alters the apportionment of seats in the House of Representatives among the States” resulting in states with larger immigrant populations attaining greater electoral power, including greater strength in the Electoral College. Art. I, Sec. 2, Cl. 3 [text] of the US Constitution [text] states that seats in the House “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State” and it provides that a census shall be taken every 10 years. Louisiana argues that under the Constitution, undocumented foreign nationals should not be counted in census figures. Rather, the state argues, only individuals with a permanent legal residence in a state should be counted for purposes of House seat apportionment. The Supreme Court must now decide whether to allow the suit to go forward.

Immigration has been a hot-button issue across the US recently. A controversial Arizona immigration law [SB 1070 materials; JURIST news archive] has spurred numerous legal challenges as well as influencing similar legislation in states such as Alabama, Georgia, Indiana, Oklahoma, South Carolina, Utah and Virginia [JURIST reports]. Last year, the US Department of Justice [official website] filed suit [JURIST report] against Arizona Governor Jan Brewer (R) [official website] seeking to permanently enjoin that state’s immigration law. The complaint states that the law is preempted by federal law and therefore violates the Supremacy Clause [text] of the US Constitution. That case has been appealed [JURIST report] to the Supreme Court. In October, a federal judge dismissed a counterclaim [JURIST report] filed by Brewer and state Attorney General Tom Horne [official profile] against the US government in the lawsuit challenging the Arizona immigration law. While the court ruled that Arizona had standing to bring the counterclaim, the court barred several counts in the claim because they had already been litigated before the court in a 1995 case.