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During his ABC town hall, Joe Biden was asked to clarify his stance on adding more seats to the Supreme Court.

USA TODAY

WASHINGTON – The Supreme Court agreed Friday to decide if the Trump administration can exclude undocumented immigrants from census calculations used to apportion seats in the House of Representatives for the next decade.

The action follows President Donald Trump’s issuance of a memorandum in July advising that millions of undocumented immigrants should not be counted when it comes to deciding each state’s share of the 435 seats in the House of Representatives.

Excluding undocumented immigrants likely would reduce the number of House seats in states such as California, Texas, Florida and New York, benefiting states with few immigrant communities.

The justices will hear the case on Nov. 30.

Led by New York, a coalition of 22 states and 15 cities filed suit against Trump’s policy, and a federal district court ruled in September that it was unlawful. The three-judge panel said it served to deter immigrant households from responding to the census count.

The Justice Department asked the Supreme Court to reverse that decision, and challengers countered that it should be affirmed or the justices should hear the case.

“Since the Founding, the population base used to apportion seats in the House of Representatives has never excluded any resident based on immigration status,” they argued. “This unbroken practice is not only tradition; it is compelled by both statutory and constitutional mandates to count every person living in a state in both the decennial census and the corresponding apportionment base.”

This April 5, 2020, file photo shows an envelope containing a 2020 census letter mailed to a resident in Detroit. (Photo: Paul Sancya, AP)

Trump’s order did not affect the counting of undocumented immigrants in the census. But it directed the Commerce Department to provide him with a second count for apportionment purposes, excluding “aliens who are not in a lawful immigration status.” 

The Supreme Court last year blocked the administration’s plan to add a question on citizenship to the census. Chief Justice John Roberts wrote that the rationale “seems to have been contrived.”

But this month, the court temporarily allowed the administration to end its 2020 census count earlier than planned, a move that could result in undercounting racial and ethnic minorities and others in hard-to-reach communities. The administration sought the earlier deadline in order to determine by Dec. 31 the number of House seats and electoral votes each state gets for the coming decade.

More: Supreme Court temporarily allows Trump administration to end census head count

While the decision was unsigned, Associate Justice Sonia Sotomayor registered her dissent. She said “meeting the deadline at the expense of the accuracy of the census is not a cost worth paying.”

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