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Elon Musk Overstates Partisan Impact of Illegal Immigration on House Apportionment

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In claiming that illegal immigration benefits Democrats, entrepreneur Elon Musk vastly overstated its impact on the apportionment of House seats and Electoral College votes.

“The math, as I understand it, you can research this obviously very easily on the internet, it’s pretty straightforward to research this, but my understanding is that the Democrats would lose approximately 20 seats in the House if illegals were not counted in the census and that’s also 20 less electoral votes for president,” Musk said in an interview with journalist Don Lemon on March 19. “So illegals absolutely do affect who controls the House and who controls the presidency. It does not affect the Senate.”

That’s inaccurate.

In December 2019, the Center for Immigration Studies, a think tank that advocates lower immigration, released an analysis of the impact of legal and illegal immigration on the apportionment of seats in the U.S. House in 2020.

Looking only at immigrants in the country illegally — the yardstick Musk employed — CIS estimated they were responsible for the redistribution of three seats in 2020. Looking at it in partisan terms, two states with a Republican-controlled legislature and a Republican governor (Alabama and Ohio) and one state with a divided legislature and a Democratic governor (Minnesota) each had one fewer House seat in 2020 due to the inclusion of immigrants living in the country illegally in population counts. Gaining one extra seat were two blue states (New York and California) and one red state (Texas). In other words, the estimated net impact was that one Democratic state picked up a seat from a Republican state.

And, since electoral votes are apportioned based on the number of House and Senate members from each state, in that scenario, one Republican electoral vote was swung to a Democratic vote.

CIS also analyzed the impact of all immigration, both legal and illegal, and concluded it was responsible for a shift of 26 House seats. But that includes immigrants who became U.S. citizens, the U.S.-born children of immigrants living in the U.S. legally or illegally, as well as other immigrants living legally in the country.

A July 2020 analysis by the nonpartisan Pew Research Center, based on government data, similarly found: “If unauthorized immigrants in the U.S. were removed from the 2020 census apportionment count … three states could each lose a seat they otherwise would have had and three others each could gain one.” Its analysis concurred with CIS on five of the six states affected, but instead of New York gaining a seat because of the impact of illegal immigration, Pew found that Florida gained a seat.

In other words, in 2020, if immigrants lacking permanent legal status hadn’t been included in population counts, two red states and one blue state would have gained a seat, and two red states and one blue state would have lost a seat. A wash, politically speaking, when it comes to balance in the House or electoral votes.

To add some perspective, over the last 10 elections, presidents have won by an average of about 176 electoral votes over the runner-up — though in 2000, Republican George W. Bush beat Democrat Al Gore by just five Electoral College votes. In the 2020 election, Joe Biden beat Donald Trump by 74 electoral votes. In other words, there is no evidence that the inclusion of immigrants living in the country illegally in census counts and apportionment calculations has swung a presidential election to one party or another. And in 2020, it did not affect the partisan majority in the House.

How Seats Are Apportioned

Reapportionment for the House of Representatives is done every 10 years based on the decennial census. A state’s electoral votes are determined by the number of senators and representatives it has. So if a state gains or loses a House seat, it also gains or loses an electoral vote.

As required by the 14th Amendment, the apportionment of seats in Congress for each state is calculated “according to their respective numbers, counting the whole number of persons in each State.” There is no indication in the Constitution that immigrants without permanent legal status should not be included in reapportionment.

Numerous efforts have been made over the years to challenge the legality of including those immigrants in the apportionment process, but none has been successful. In March 2018, the Commerce Department under President Donald Trump attempted to add a citizenship question to the 2020 census. (The mandatory decennial census doesn’t ask whether someone is a citizen.)

But Trump’s efforts were quickly challenged in the courts, and in July 2019, Trump abandoned his effort to include the question, though he tried to use other government sources to obtain a count of immigrants living in the country illegally.

Trump later attempted via a memorandum in July 2020 to “exclude from the apportionment base aliens who are not in a lawful immigration status.”

“Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government,” the memo said. “Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.”

Allowing immigrants in the country to be included in the counts used for apportionment “would also create perverse incentives encouraging violations of Federal law,” the memo stated. “States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.”

Late in 2020, the Supreme Court delayed a ruling on a court challenge to Trump’s memo, and on his first day in office, President Joe Biden issued an executive order revoking Trump’s memo and stating that census counts in each state are done “without regard to whether its residents are in lawful immigration status.”

“While it is true that Census includes this population and that they are counted in Congressional districts, it is important to note that this population is routinely undercounted … for multiple reasons and therefore the effect is likely minimal on district appropriations,” Ariel Ruiz Soto, a senior policy analyst at the Migration Policy Institute, told us via email. “But also, many of these immigrants are part of mixed-status households that include many US citizens who have critical needs and must be counted to receive funding and services (for example, in schools). And yes … many ‘red’ states also have notable unauthorized immigrant populations.”

The U.S. Census is used in many federal funding formulas. In fiscal year 2021, it informed the distribution of more than $2.8 trillion in federal funding.

Recent Legislative Efforts

Although the next reapportionment won’t happen until 2030, a surge in illegal immigration during the Biden presidency has brought the issue back to the legislative forefront.

On Jan. 25, 21 senators introduced the Equal Representation Act, which seeks to require a citizenship question on the decennial census, and prohibit the inclusion of noncitizens in counts used for apportionment of representatives. Four days later, a companion bill was introduced in the House. To date, the bill has 89 Republican co-sponsors.

A press release from Sen. Katie Britt of Alabama said, “The current census method of counting illegal aliens for purposes of representation incentivizes open borders by boosting the relative political power of the respective states and voters that court mass illegal migration. For example, at least two million illegal aliens reside in California, currently resulting in this sanctuary state being apportioned several more congressional seats and Electoral College votes than the states’ population of citizens would justify.”

As we noted earlier, CIS and Pew Research Center both concluded that California would have had one less representative, and one less electoral vote, if immigrants living in the country illegally were excluded from the census apportionment count.

In press releases, other Republicans also portrayed illegal immigration as a boost only to Democratic states, though that is not the case.

“What we’re seeing is the Democrats abusing the system by creating sanctuary cities in blue states that are literally losing citizens every day to states like mine,” Sen. Bill Hagerty of Tennessee said in a press conference at the Capitol on Jan. 25. “What’s happening is cities like San Francisco, Los Angeles, Chicago, New York, are acting as magnets to attract illegal immigrants. Those immigrants are then being counted in the populations of California, Illinois, New York, and other cities for the purposes of allocating congressional districts and electoral votes.”

“Blue states may be losing citizens over their liberal policies, but they’re making up for it by welcoming illegal immigrants,” Sen. Marsha Blackburn of Tennessee said in a press release.

But immigrants don’t just settle in blue states, and there is some evidence that immigrants without permanent legal status have been settling more often in red states in recent years. While California (2.2 million) had more immigrants living in the U.S. illegally than any other state in 2022, the No. 2 and 3 states were the red states of Texas (1.85 million) and Florida (935,000), the Center for Migration Studies estimates.

When it comes to apportionment power, however, “it’s not whether they have any unauthorized immigrants in their state, it’s whether they have a higher than average share,” Jeffrey Passel, senior demographer for the Pew Research Center, explained in a phone interview.

“It’s not simply Democratic states,” Passel said. “There’s a mix of states with higher than average shares.”

The apportionment formula allocates sequentially, so it also matters how close a state is to the population threshold needed to get another representative, Passel said. The average number of people per congressional district is 761,169, although some states such as Delaware (990,837) and Idaho (920,689) have far more than the average, while others have far less, including Montana (542,704) and Rhode Island (549,082).

Republicans also claimed that a surge in illegal immigration since Biden took office will cause an increase in partisan disparity in apportionment.

Surge in Illegal Immigration under Biden

Hagerty misleadingly talked about the “8 to 10 million people that have entered America just since Joe Biden took office.” As we’ve written, government statistics show that in the initial processing of millions of encounters at the southern border during the Biden administration, 2.5 million people have been released into the U.S. with notices to appear in immigration court or other classifications, as of October. There also could have been about 1.6 million “gotaways,” or people crossing the border illegally who evaded apprehension. 

Ruiz Soto, of the Migration Policy Institute, noted that most of the immigrants released into the country are still being processed at immigration courts, and many of them may ultimately be issued removal orders if courts determine they do not to qualify for asylum protection.

According to the U.S. Census Bureau, each House member represents an average of 761,169 people, based on the 2020 census. But immigrants disperse around the country, and while some states wind up with a disproportionate share, that’s true of red and blue states.

In fact, there is reason to believe Republican states may be benefiting more from illegal immigration than Democratic ones in recent years, according to an analysis released in January by David J. Bier of the libertarian Cato Institute.

According to Bier, “recent immigration trends are benefiting Republicans in states where they control the legislature and manage redistricting. About 62 percent of the three‐​million increase in the total immigrant population from March 2019 to March 2023 has occurred in GOP states, according to the Current Population Survey Annual Social and Economic Supplement.”

That includes all immigrants. Looking only at noncitizens, Bier wrote, “an overwhelming 95 percent of the increase in the noncitizen population has been in GOP states from March 2019 to March 2023.”

The noncitizen population includes noncitizens in the country both illegally and legally, though Bier told us, “I don’t believe that there would be a substantial difference in locational choice” between the two groups.

“The claim is that Democrats are right now letting more noncitizens come because these new entrants will increase their congressional representation,” Bier told us via email. “But while [that] may have been true for immigrants who entered decades ago, it hasn’t been true for recent arrivals.”

According to Bier’s analysis, seven of the top 10 states where noncitizens settled between 2019 and 2023 are states with Republican legislatures, with Texas topping the list.

“It is certainly likely that these states are attracting immigrants because of their strong job growth,” Bier wrote.

From 2021 to 2023, during the Biden administration, five of the top 10 states in which noncitizens settled were Republican-controlled, four were Democratic-controlled, and one has a divided legislature. However, California — a blue state — gained the most noncitizen arrivals, according to CPS Annual Social and Economic Supplements. The 2.7 million noncitizens estimated to have settled in the U.S. in that time period by the Census Bureau included those living in the U.S. legally and illegally.

Steven A. Camarota, director of research at the Center for Immigration Studies, looked at the monthly Current Population Survey — a smaller survey but with up-to-date data — over the three years of the Biden presidency, from January 2021 to February 2024, and concluded that there were slightly more blue states than red where the immigrant population grew the most, suggesting that “when the next Census happens that the recent surge will benefit Democratic states more than the Republican states somewhat.”

All of these current analyses may ultimately be irrelevant. What really matters is where the noncitizens, specifically those in the country illegally, disproportionately reside at the time of the decennial census and which party controls those states’ legislatures (and can influence redistricting maps) at that time.

But overall, while illegal immigration affects apportionment at the margins, Passel said, immigrants in the country illegally disperse to many states and make up a fairly small percentage of people in the U.S. overall. “The inclusion of unauthorized immigrants in apportionment counts is not a major factor in determining who controls the House of Representatives,” he said.

“If you’re one of the states that loses a seat, it makes a big difference,” Passel allowed.

That “immigration redistributes house seats is not in dispute,” Camarota told us via email. “In a country of 330 million people however, it is generally hard to move seats around because each seat now has about 760,000 people, though if a state is on the margin of getting or losing a seat, then it can lose or gain relatively easily.”

However, Camarota said he has analyzed population surveys during the Trump presidency and found certain House districts, with a high density of noncitizens, are more likely to elect Democrats. 

“The key group that wins politically from the growth in illegal immigrants and non-citizens in general are those that live around them,” Camarota said, pointing to a CIS report that looked at districts with relatively few voters because many of the people in the district are noncitizens who can’t vote.

“It takes so many fewer votes to win an election in a district with a lot of non-citizens,” Camarota said. “This means that voters in such places have significantly more political power. That is, their votes count much more. In general the low citizen districts are almost all represented by Democrats.”

Camarota argues there are other long-term advantages to immigration — both legal and illegal — for Democrats.

“There is good evidence immigrants and their children [who ultimately become citizens] may vote Democratic 2 to 1 on average,” Camarota said. “So in the long run immigration has partisan implications, which I think is part of the complaint.”

Whether that’s true, or remains true in 2030, is a matter for speculation, but regardless, that’s not what Musk was arguing. He said there’s currently an advantage to Democrats of 20 House seats and an equal number of electoral votes due to immigrants in the country illegally being included in apportionment calculations — and that’s not accurate.

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