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Rep. Mo Brooks deposed in Census lawsuit

Congressman Mo Brooks

Congressman Mo Brooks, R-Alabama, was deposed Thursday in a federal lawsuit over the Census. The deposition in the suit — State of Alabama & Mo Brooks v. U.S. Census Bureau & U.S. Department of Commerce — was taken virtually in Brooks’s district office.

“I was deposed yesterday in my ongoing legal battle against illegal alien counts determining how many Congressmen and presidential electoral college votes each state has,” Brooks said. “The attorneys who deposed me represented various illegal alien sanctuary parts of the country that hope to gain political power at the expense of Alabama and other law-abiding states. I steadfastly defended the Constitutional rights of Alabamians in the face of those who seek to undermine the rights of American citizens in favor of illegal aliens. The conclusion of this deposition makes us one step closer to a final judgement in this important case.”

In May 2018, Brooks and Alabama Attorney General Steve Marshall, on the state of Alabama’s behalf, sued in an attempt to force the U.S. Census Bureau and federal government to not include illegal immigrants in the apportionment of Congressional seats and Electoral College votes.

Brooks and Marshall contend that the 14th Amendment’s equal protection clause and the “one man-one vote” principle are being violated when non-citizens are used to determine apportionment and representation in the Congress.

President Donald Trump has publicly agreed with Marshall and Brooks. In July, he highlighted the importance of the case when he signed an executive order that excludes illegal immigrants from the part of the 2020 Census count that determines America’s representation in Congress.

The president’s executive order states: “The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census. Instead, the term ‘persons in each State’ has been interpreted to mean that only the ‘inhabitants’ of each State should be included.”

“Determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment,” the order continues. “For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are ‘persons’ who have been excluded from the apportionment base in past censuses. Conversely, the Constitution also has never been understood to exclude every person who is not physically ‘in’ a State at the time of the census. For example, overseas Federal personnel have, at various times, been included in and excluded from the populations of the States in which they maintained their homes of record. The discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.”

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“For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” Trump’s executive order continued. “Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.”

While Alabama has experienced some population growth in the last decade, it has not attracted nearly as many immigrants, both documented and undocumented, as states like Florida, California and Texas, thus not the same rate of population growth.

If the estimated 20 million people living in the U.S. illegally are counted in apportionment just like American citizens, Alabama is likely to lose representation in the U.S. House of Representatives.

It’s also likely that Alabama could lose a seat regardless. Alabamians have done a lackluster job of filling out the 2020 census. As a result, it now appears highly likely, particularly if Brooks and the state of Alabama lose this lawsuit, that Alabama will lose one, and possibly two, of its seven Congressional seats beginning in the 2022 election.

Brooks represents the 5th Congressional District.

Brandon Moseley is a former reporter at the Alabama Political Reporter.

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