AZ GOP wants Legislature map based on 'citizen-only' census. Democrats call it gerrymandering

Counting undocumented residents and noncitizens in Arizona in the U.S. Census helps set the boundaries of legislative districts, often concentrating Democratic power in areas with more immigrants.

But a proposed ballot measure by Republicans to have Arizona conduct its own census, tallying only citizens, could tip the balance of the Legislature toward the GOP.

A plan to base legislative districts on the population of voting-eligible citizens is needed more than ever with President Joe Biden allowing record numbers of migrants into the country, said the measure's sponsor, Mesa Republican Rep. Justin Heap.

"We are at a true crisis point," Heap told The Arizona Republic. It's going to dilute citizens' votes. And citizens will, in a sense, lose power in their votes. It will shift away."

His House Concurrent Resolution 2058 would establish a taxpayer-funded, Arizona-only census that would be used starting in 2030 for the once-a-decade state legislative redistricting process. Heap is a lawyer and first-term lawmaker running for Maricopa County recorder in the July 30 primary, challenging incumbent Republican Stephen Richer.

The resolution passed the House last month and a Senate committee this week on Republican party lines. It's now poised for a full vote in the Senate. If all 16 Republican senators vote for it, the proposal would bypass the office of Democratic Gov. Katie Hobbs and join a growing group of Legislature-referred measures on the November ballot.

Heap and supporters of the measure, including the conservative Free Enterprise Club, frame the argument as one of principle: Americans agree that only citizens should vote, so the state's legislative districts should be based only on the population of eligible voters.

The measure would only affect state legislative districts, not Congressional districts, which would still be based on U.S. Census data. The federal census would also still guide the distribution of federal funds to states. If Arizona can't get its census done in time, the proposed law says, the state would continue to use federal census data.

Besides needing voter approval, however, the idea faces several significant hurdles before it could be implemented, including the potential price tag and likely legal challenges. No state has conducted its own census since 1945, and Arizona hasn't done it since 1882, according to data from the U.S. Census Bureau.

An amendment to the resolution would gut funding for the Clean Elections Commission to pay for the state census, but its final cost can't yet be determined.

How counting noncitizens affects the state Legislature

Arizona's constitution mandates 30 legislative districts for the state, the shape and nature of each guided by a 2000 voter-approved law that created the Independent Redistricting Commission.

At the start of each decade, five commissioners — two Republicans, two Democrats, and an independent chair — draw the boundaries of each district based on factors including compliance with the federal Voting Rights Act, geography and "potential competitiveness." The 30 districts also need to be of "equal population to the extent practicable."

The U.S. Census determines the population by attempting to count all people in each state without regard to their citizenship or legal status. Arizona's legislative districts contain an average of about 240,000 people each. Apportioning each district a roughly equal number of people means some districts are geographically large and some small, depending on their population density.

The smaller districts are more numerous because there's only so much space within the state's borders. That's where the noncitizen factor comes into play.

Counting noncitizens produces a greater number of smaller districts than otherwise would exist, which magnifies the power of the voting citizens in those districts. Since many Latino and Asian undocumented immigrants live in Democrat-heavy areas, not counting them would result in fewer Democratic districts, diluting the political power of the voting citizens who lived in them.

Veteran political consultant Chuck Coughlin said the concept is "credible," even though he doesn't believe the Biden administration is allowing more immigrants simply to boost Democratic power.

"I see the sense of it," he said. "Those districts tend to have more people and less voters."

In Arizona, he said, the districts represented by Congressmen Ruben Gallego and Raúl Grijalva have the smallest turnout in the state since they have "fewer citizens, fewer voters."

It's "noncontroversial that some of our immigrant communities are more heavily based in Democratic districts," said Sen. Priya Sundareshan, a Tucson Democrat.

Heap's census, which would question residents about their citizenship, would result in the harassment and the targeting of these communities, she said. That would lead to an "overall undercount" of the population, she said, "resulting in gerrymandered maps heavily favoring Republican control of the Legislature."

Legal challenges and cost could impede an Arizona census

Even though Heap's planned census deals with legislative districts, Democrats could try to challenge it based on the U.S. Constitution's 14th Amendment, which says that Congressional districts would be apportioned by "counting the whole number of persons in each State."

The concept of counting everyone for drawing districts was bolstered in 2019 when the U.S. Supreme Court ruled against a plan by former President Donald Trump to have U.S. Census workers ask about citizenship. Republican strategists had argued that asking the citizenship questions could augment Republican power.

However, the U.S. Constitution doesn't provide direct guidance on data used in the state legislative redistricting process.

Other potential legal challenges could be raised, said Tom Collins, executive director of the Clean Elections Commission. The state constitution contains a provision mandating that ballot measures must "embrace but one subject."

"There’s no relationship between the Clean Elections fund and a state-level census," Collins said.

The Clean Elections Commission, which provides voter education, public campaign financing and other services, has no official position on Heap's proposal. But an amendment to the resolution would remove $5 million per year from the commission and put it into a census fund. The commission's revenue, which comes from a 10% surcharge on state civil penalties and criminal fines among other sources, is about $5 million a year. The commission also has about $34 million in the bank.

If voters passed the census measure, it would mean a slow death for the Clean Elections Commission unless the Legislature decided to give it more funds.

"It's not saying anything out of school to say the Legislature has been historically hostile to a lot of things that the Citizens Clean Election Commission does," Collins said.

At a March 26 Senate Appropriations Committee hearing, Sen. Juan Mendez, a Tempe Democrat, estimated the cost of the census could be as high as $300 million. Mendez came up with the estimate by dividing the cost of the 2020 U.S. Census, about $14 billion, by 50 states.

The U.S. Census Bureau told The Republic an estimated cost of the agency's work in Arizona wasn't publicly available, and estimates based on its expenses to conduct the entire 2020 census would not be reliable.

Heap told The Republic he believed the cost would be much lower than Mendez's estimate, saying Arizona could run a census far more efficiently than the federal government.

Still, U.S. Census documents found online show the federal agency hired thousands of temporary workers to serve a multi-state region that included Arizona.

"Look at it as a jobs program," Sen. John Kavanagh, the Senate Appropriations Committee Chair, told Mendez at the hearing.

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on X @raystern.

This article originally appeared on Arizona Republic: Arizona GOP wants Legislature's maps drawn off 'citizen-only' census