A federal court challenge to President Trump’s order seeking to exclude undocumented individuals from the apportionment count of the whole number of persons in a state.

On Sept. 10, 2020, a three-judge federal trial court declared that federal statutes require the apportionment count to include all persons, and enjoined the Census Bureau from including any information other than the total population in the statement delivered to the President for apportionment purposes.

On Dec. 18, 2020, the Supreme Court vacated that decision, on standing and ripeness grounds.  The factual record was at the time too uncertain for judicial resolution: the apportionment data depend on an actual count rather than an estimate, but the Census Bureau did not yet know whether it would be able to provide sufficiently reliable data to potentially exclude any categories of individuals, or which, or how those numbers might impact the eventual apportionment — and it was not yet clear whether the President would seek to exclude all, some, or none of the individuals for whom data might be eventually presented.  (The record also revealed uncertainty about the timing of the Census Bureau’s final count, such that it was not even clear that President Trump would ultimately be making the determination.)

Though the case was dismissed, the Census Bureau agreed on Jan. 15, 2021, to refrain from finalizing or publicly releasing any information with respect to data on undocumented individuals in the apportionment count without at least 7 days’ notice, until at least Feb. 5, 2021.  Upon taking office, President Biden rescinded President Trump’s directive, and ordered the Census to report the total population for apportionment purposes.