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**  A second window aside called by the Studies page, entitled
“The Missing Historical Context: Anglo-American
Gun Laws & the Original Intent of the Second Amendment”

First Published:  5 July 2020
Revised (substantive):  13 June 2021

A     N O T E     O N

Anglo-America’s first representative institution, the Virginia House of Burgesses

The Principles of Universal Suffrage and of Full Representation in 1620s–1650s Virginia

The word “burgess” derives from “borough.” Boroughs were the original electoral districts in the early 1600s, before Virginia was divided into counties in 1634.

The first legislative assembly in Anglo-America sat at Jamestown, Virginia in 1619. The representatives of the people (burgesses) were first elected by townships, and then by plantations or settlements, with every plantation or settlement entitled to as many representatives as the inhabitants thought proper to elect. Thus, the General Assembly “holden the 16th day of October, 1629” included 47 Burgesses:

•  “ Imps. ffor the plantation at the colledge ”:
     “Leftn’t. Thomas Osborne, Mathew Edlowe.”

•  “ ffor the necke of land ”:
     “Serit. Sharpe.”

•  “ ffor Shirley Hundred Island ”:
     “Chene Boise, John Browne.”

•  “ for Shirley Hundred Maine ”:
     “Mr. Thomas Palmer, John Harris.”

•  “ ffor Mr. Henry Throgmorton’s plantation ”:
     “William Allen.”

•  “ ffor Jurden’s Journey ”:
     “William Popkton.”

•  “ ffor Chaplaines Choise ”:
     “Walter Price.”

•  “ ffor Westover ”:
     “Christopher Woodward.”

•  “ ffor Flowerdieu Hundred ”:
     “Anthony Pagett.”

•  “ ffor James Citty ”:
     “Mr. Menefie, Mr. Kingsmell.”

•  “ ffor Paces Paines’s ”:
     “L. Willam Perry, John Smyth.”

•  “ ffor the other side of the water ”:
     “Capt. John West, Capt. ffellgate.”

•  “ ffor Pasbehay ”:
     “Thomas Bagwell.”

•  “ ffor the necke of land ”:
     “Richard Brewster.”

•  “ ffor Archer’s Hope ”:
     “Theodore Moysee, Tho: Doe.”

•  “ The plantations between Archer’s Hope and
       Martin’s Hundred
     “Mr. John Utie, Richard Townsend.”

•  “ ffor Hogg Island ”:
     “John Chew, Richard Tree.”

•  “ ffor Martin’s Hundred ”:
     “Tho. Kinston, Tho. ffawcett.”

•  “ ffor Mulbury Iland ”:
     “Tho. Harwood, Phettiplace Clause.”

•  “ ffor Warwicke river ”:
     “Christ. Stokes, Tho. Ceely, Tho. fflint, Zachary Cripps.”

•  “ ffor Warosquoyacke ”:
     “Capt. Nath’l Basse, Richard Bennett, Robert Savin, Tho. Jurdain.”

•  “ ffor Nuttmegg Quarter ”:
     “William Cole, William Bentley.”

•  “ ffor Eliz: Citty ”:
     “Left. Thomson, Mr. English, Mr. Adam Thorowgood, Mr. Rowlston, John Browning, John Dowman.”

•  “ ffor the Easterne shoare ”:
     “noe burgesses did appear.”

The boroughs of Jamestown, Henrico, Bermuda Hundred, and others, sent their members to the assembly under a radical system of representation whereby “all persons inhabitting in this collonie that are freemen” were eligible — indeed, required (or face a fine) — to vote for burgesses. This unique practice of universal male suffrage for a while extended the vote to all freeman inhabitants of early colonial Virginia, regardless of landed wealth, social status (servants were considered freemen once their indenture concluded), or race (an unknown percentage of African-Americans residing in Virginia were freemen, and thus qualified for the franchise, as did free Native Americans, especially Christian Indians, residing within the Anglo-American settlements).

In its original sense, a freeman described a man who is personally free (scil. a man who is not a slave or serf). In later usage, the personal merged with the political, and a freeman came to mean a man who is politically free (scil. a man enjoying the rights and liberties of a free society, as opposed to a tyrannical regime or totalitarian rule).

The generality of free settlers in Virginia prior to the English Revolution (1640–1660) were people of

... modest means, who sold all they had in order to finance their removal to a colony. Other migrants who were unable to pay their passage signed indentures to serve for a set number of years (usually four to seven) in exchange for their transportation. These individuals were at best landless laborers who took ship across the Atlantic after migrating within England in search of work. Some servants did not freely sign indenture contracts but were sent to labor in the plantations because their homelessness or petty crimes had brought them to the attention of the authorities. So although the colonies did not boast the top tiers of the English social hierarchy, they did receive some persons from the bottom, the poorest of the poor. Bound servants migrated to all colonies, though the Chesapeake and the Caribbean islands received most of the very destitute, who worked in the fields. In most places, laborers who survived their indentures could expect to receive land.

(Carla Gardina Pestana, The English Atlantic in an Age of Revolution, 1640–1661, 20–21)

In Virginia, free settlers who owned land could enjoy a measure of personal autonomy reserved in England for a relatively small portion of the population. This led to the emergence of “a local landowning class that balked at the need for subservience to the powerful proprietors and companies” in the mother country, and aspired to control local government (C. G. Pestana, 23–24). Despite the relatively compressed social structure in the colonies of the English Atlantic in the first half of the 17th century (“the great men with interests in the plantations rarely visited, much less took up residence”), early opportunities for upward mobility among landless laborers in the Chesapeake region — becoming landholders, if they survived their indentures, and entering into local leadership — were closing off by 1640. And laws abridging the right of suffrage, or prescribing the qualifications of the members of Virginia’s House of Burgesses, were subsequently passed beginning in 1654–5.

During the English interregnum, the commonwealth of Virginia experimented with limiting the franchise by placing qualifications on voters (restricting the right of suffrage to “all house keepers whether ffreeholders, lease holders, or otherwise tenants,” and to one person in a family) and on their elected representatives (restricted to “persons of knowne integrity and of good conversation and of the age of one & twenty yeares”):

BE it enacted by this present Grand Assembly that all Burgesses shall be sumoned and elected in manner hereafter expressed, That is to say, that the severall and respective sherriffs shall within ten dayes after the receipt of such writts as they shall receive to that purpose cause the same to be published and by giving notice of the same from house to house by the sherriff or his deputy to all persons interested in elections, which he is to doe ex officio: And then and there also to publish and declare the certain day of the week and moneth for chooseing Burgesses to serve in the Assembly for all accustomed places in the severall countyes and parishes respectively.
     That at the day and place of elections the sherriffs shall take view of the said elections, and before the sitting of the Assembly make returne into the secretary’s office, att James Cittie, of the persons then and there elected, by subscription and of the major part of the hands of the electors; and that the sherriff who shall wittingly or willingly make any false return or neglect his duty shall incurr the pennalty of 10000 lb. of tob’o [tobacco].
     That the persons who shall be elected to serve in Assembly shall be such and no other then such as are persons of knowne integrity and of good conversation and of the age of one & twenty yeares — That all house keepers whether ffreeholders, lease holders, or otherwise tenants, shall onely be capeable to elect Burgesses, and none hereby made uncapable shall give his subscription to elect a Burgesse upon the pennalty of four hundred pounds of tobacco and cask to be disposed of by the court of each county where such contempt shall be used: Provided that this word house keepers repeated in this act extend no further then to one person in a ffamily.

(Act VII, as passed by the “Grand Assembly held att James Citty” on 31 March 1655)

A year later, at the next legislative session, this act was amended, lifting its qualifications on voters, and restoring the right of suffrage to all free men, in keeping with the republican principle, no taxation without representation:

WHEREAS we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in elections, Therefore it is enacted by this present Grand Assembly, That soe much of the act for chooseing Burgesses be repealed as excludes freemen from votes, Provided allwaies that they fairly give their votes by subscription and not in a tumultuous way, and it is further provided by this act that the rest of the act of March, 1654, concerning choosing Burgesses (this clause only excepted) be and remain in full force, any act provided to the contrary notwithstanding.

(Act XVI, as passed by the Grand Assembly on 27 March 1656)

The Virginia commonwealth’s voting Act VII of March 1655, as amended by Act XVI of March 1656 (restoring the ancient usage of all freemen voting), was then reenacted (Act XCIII) as part of the comprehensive revisal undertaken by the provisional government, in March 1658, of all previous “acts of Assembly of this country ... formerly in force” which, “through multiplicitie of alterations and repeales are become so difficult, that the course of justice is thereby obstructed and those that are by the lawes intrusted with power to execute them, may by such their uncertainety be drawne to comitt unwilled errors.” The following Act XCIII is thus especially noteworthy for its careful restatement, after “makeing a dilligent review of all the acts formerly in force,” that the right of suffrage was to be exercised by all free men residing in the colony (and its retention of the qualifications for persons to be elected).

The Election of Burgesses.

BEE it enacted, by this present Grand Assembly, That all Burgesses shall be summoned and elected in manner hereafter expressed, (that is to say,) That the severall and respective sherriffes shall within tenne daies after the receipte of such writtes as they shall receive to that purpose cause the same to be published & by giveing notice of the same from house to house by the sherriffe or his deputie to all persons interrested in elections, which hee is to do ex officio and then and there alsoe to publish and declare the certaine daie of the weeke and moneth for chooseing Burgesses to serve in the Assembly, for all accustomed places in the severall counties, and parishes respectively, That at the day and place of election the sherriffe shall take view of the said election, and before the sitting of the Assemblye to make returne to the secretaries office at James Cittie of the persons then and there elected by subscriptions of the major parte of the hands of the ellectors, And that the sherriff who shall wittinglie or willinglie make any false returne or neglect his duty shall incurr the pennaltie of ten thousand pounds of tobacco: That the persons who shall bee elected to serve in Assembly shall be such and no other then such as are persons of knowne integrity, of good conversation and of the age of one and twenty yeares, And all persons inhabitting in this collonie that are freemen to have their votes in the election of Burgesses, Provided they do not in tumultuous manner, but fairly give their votes by subscriptions as aforesaid.

(Act XCIII, as passed by the Grand Assembly “held at James Cittie” on 13 March 1658)

It was not until an act of 1670 (after the restoration of England’s Stuart monarchy, and the reinstatement of Virginia as a royal colony) that Virginia’s early commitment to a universal right of male suffrage was confined — this time with the usual property qualification, limiting the franchise to freehold inhabitants (those who possessed a freehold estate, and thus, it was assumed, would put the interests of property owners first & foremost).

WHEREAS the usuall way of chuseing burgesses by the votes of all persons who haveing served their tyme are ffreemen of this country who haveing little interest in the country doe oftner make tumults at the election to the disturbance of his majesties peace, then by their discretions in their votes provide for the conservasion thereof, by makeing choyce of persons fitly qualifyed for the discharge of soe greate a trust, And whereas the lawes of England grant a voyce in such election only to such as by their estates real or personall have interest enough to tye them to the endeavour of the publique good; It is hereby enacted, that none but ffreeholders and housekeepers who only are answerable to the publique for the levies shall hereafter have a voice in the election of any burgesses in this country; and that the election be at the courthouse.

(Act III, as passed in October 1670 by the “Grand Assemblie holden at James Cittie by prorogation from the twentieth of October 1669, to the third of October 1670, in the twentie-second yeare of the reigne of our soveraigne lord King Charles the Second,” with Sir William Berkeley as governor)

In 1676, Charles II further enforced this voter qualification with Article II of his instructions to the governor of Virginia, Sir William Berkeley, directing “You shall take care that the members of the assembly be elected, only by FREE HOLDERS, as being more agreeable to the custome of England, to which you are as nigh as conveniently you can to conform yourselfe.”

In other electoral innovations, absentee ballots were allowed at first, so that no man had “to go off the plantation where he lives to choose burgisses” (ACT XIX, as passed by Virginia’s Grand Assembly 6 January 1639). But by mid-17th-century, securing the vote in Virginia had become a problem. “Divers inconveniencies” had ensued from the “disorderly and illegal election of Burgesses, by subscribing of hands contrary to the warrant directed for the sayd election,” and the “Grand Assembly begunne at James Cittie the 5th day of October, 1646” passed Act XX, stipulating that no more “hand writing shall be admitted” (in lieu of a voice vote) and that any freeman who failed to attend, in person, at the time and place appointed for an election (“unles there be lawfull cause for the absenting himselfe”) would be fined 100 pounds of tobacco — about one-eighth the amount of tobacco one laborer could produce in a year. Subsequent acts guaranteeing the integrity of the electoral process imposed increasingly large fines on those who tampered with the vote (scil. illegal voting carried a “pennalty of four hundred pounds of tobacco and cask,” while fraudulent counting/reporting of the vote by the sherriff “shall incurr the pennalty of 10000 lb. of tob’o”).

Of note, it was not until 1723 that racial exclusions were applied to the universal franchise for freeman or freeholder:

... through the recommendation of the Board of Trade and the discovery of a planned black insurrection, a law was passed declaring that “no free negro, mullato, or indian whatsoever, shall hereafter have any vote at the election of burgesses, or any other election whatsoever.”

(W. S. Robinson, Jr., “The Legal Status of the Indian in Colonial Virginia,” 258)

This completed the exclusion of free men of color from the privileges and duties of holding public office and voting. Earlier in 1705,

... the restriction was passed that no Negroes, mulattoes, and Indians “bear any office, ecclesiasticall, civill or military, or be in any place of public trust or power” in Virginia. Violators of this restriction were liable to a fine of £500 current money and an additional £20 of the same currency for each month illegally in office.

(W. S. Robinson, Jr., “The Legal Status of the Indian in Colonial Virginia,” 257)

But the attacks on the political (and property) rights of free men of color dated back even further, to the Stuart Restoration, when “the fundamental liberties” of all inhabitants of Anglo-America were threatened by the encroachments of the Crown (with Stuart tyranny in the Americas reaching its apex during the period from 1677 to 1688, following the pluto-populist uprising of 1676 known as Bacon’s Rebellion). In 1670, as Virginia fully embraced slavery and slavery came to have a black face, white supremacy was written into law: free men of color in Virginia were prohibited from directly governing the white man with the statute mandating that “Free negroes & Indians not permitted to buy Christian servants, but may [buy] those of their own nation.”

Noe Negroes nor Indians to buy christian servants.

WHEREAS it hath beene questioned whither Indians or negroes manumited, or otherwise free, could be capable of purchasing christian servants, It is enacted that noe negroe or Indian though baptised and enjoyned their owne freedome shall be capable of any such purchase of christians, but yet not debarred from buying any of their owne nation.

(Act V, as passed in October 1670 by the “Grand Assemblie holden at James Cittie by prorogation from the twentieth of October 1669, to the third of October 1670, in the twentie-second yeare of the reigne of our soveraigne lord King Charles the Second,” with Sir William Berkeley as governor)

The once destabilizing force of religious conversion was no longer the great equalizer.

Related census, citizenship and immigration laws

As we have seen, Virginia’s earliest representative government was grounded on radical principles of universal suffrage and of full representation, extending the right of suffrage to all freemen, who were not at first compellable to go from their plantations to vote for burgesses, but were able to give their suffrages by subscribing a paper (the first absentee voting in this country).

Nonetheless, other settler freedoms — of movement, of employment, of trade, etc. — were more circumscribed. For example, according to statutory law enacted 3 August 1619, settlers who gave or sold hoes or dogs to the natives were fined 5 shillings; selling or giving firearms and ammunition to the aboriginal inhabitants carried the death penalty; and any settlers going twenty miles from home, or absenting themselves seven days, or consorting with the natives on tribal lands, without prior government authorization, were to be heavily fined (20 shillings and 40 shillings respectively):

That no man doe sell or give any of the greatter howes [hoes] to the Indians, or any English dog of quality, as a mastive, greyhound, bloodhounde, lande or water spaniel, or any other dog or bitche whatsoever, of the Englishe race, upon paine of forfaiting 5s sterling to the publique uses of the Incorporation where he dwelleth.
     That no man do sell or give any Indians any piece shott or poulder [powder], or any other armes, offensive or defensive upon paine of being held a Traytour to the Colony, and of being hanged as soon as the facte is proved, without all redemption.
     That no man may go above twenty miles from his dwelling-place, nor upon any voiage whatsoever shalbe absent from thence for the space of seven dayes together without first having made the Governor or comaunder of the same place acquainted therwith, upon paine of paying twenty shillings to the publique uses of the same Incorporation where the party delinquent dwelleth.
     That no man shall purposely goe to any Indian townes, habitations or places or resortes without leave from the Governor or comaunder of that place wher he liveth, upon paine of paying 40s to publique uses as aforesaid.

(Laws passed on 3 August 1619 by the General Assembly of Virginia — the first legislative assembly that ever convened on the American continent)

This same legislative Assembly in 1619 made provision for taking an accurate census of the inhabitants, with each government head count initially focused on gathering information about inhabitants’ socioeconomic status (i.e., recording whether each “head” who was resident in Virginia was a free and independent? or dependent? person):

That no man living in this Colony, but shall between this [3 August 1619] and the first of January nexte ensueing come or sende to the Secretary of Estate to enter his own and all his servants’ names, and for what terme or upon what conditions they are to serve, upon penalty of paying 40s to the said Secretary of Estate. Also, whatsoever Mrs [masters] or people doe come over to this plantation that within one month of their arrivall (notice being first given them of this very lawe) they shall likewise resorte to the Secretary of Estate and shall certifie him upon what termes or conditions they be come hither, to the ende that he may recorde their grauntes and comissions, and for how long time and upon what conditions their servants (in case they have any) are to serve them, and that upon paine of the penalty nexte above mentioned.
     All Ministers in the Colony shall once a year, namely, in the moneth of Marche, bring to the Secretary of Estate a true account of all Christenings, burials and marriages, upon paine, if they faill, to be censured for their negligence by the Governor and Counsell of Estate; likewise, where there be no ministers, that the comanders of the place doe supply the same duty.

(Laws passed on 3 August 1619 by the General Assembly of Virginia — the first legislative assembly that ever convened on the American continent)

The settler population was thus closely monitored from the beginning, with initial population counts evolving into Virginia’s large-scale annual census of all inhabitants, with their arms and other property, as mandated in 1631:

IT is ordered and appoynted, That the commanders of all the severall plantations, doe ... uppon the first day of December, take a muster of theire men, togeather with the women and children, and theire ages, countryes, and towns, where they were borne, with the shipps they came in, and the yeare of the Lord, as also of armes and munition, corne, cattle, hoggs, goates, barques, boates, gardens, and orchards, and yf they shall make default, to be censured by the Governor and Counsell.

(Act LVI, as passed by Virginia’s General Assembly, “holden at James Citty” “the 2d of March, 1631”; this legislation was reenacted, verbatim, as ACT LIII, by the Grand Assembly “holden at James Citty the 4th day of September, 1632”; both 1631–2 acts are transcribed from MSS. collected and owned by Thomas Jefferson)

This demographic information was needed primarily for taxation (itself linked to suffrage, on and off) and for effective public administration of the colony and its labor force. Undercounts of Virginia’s population soon became enough of a problem that laws had to be passed empowering residents to cross-check government numbers and ensure the accuracy of the count. For example, in October 1670, the legislature mandated that the government’s list of names and numbers of tithables (taxable persons) be published by the clerk of court “for the surer discovery” of concealed inhabitants:

WHEREAS many endeavours have been used for the prevention of ffraud in takeing the lyst of tythables, It is hereby enacted for the surer discovery thereof that at the next court after the tenth of June in every county the name and number of tythables in every list taken by the respective justices in the respective precincts lymetted them, be taken by the clerke of the county court, and by him written and sett up at the court doore all that day, to the end that if any concealment have been made, the persons liveing neare them may discover them to the court, and such penalties be inflicted on them as by the former law is enjoyned.

(Act IV, as passed by the “Grand Assemblie holden at James Cittie by prorogation from the twentieth of October 1669, to the third of October 1670, in the twentie-second yeare of the reigne of our soveraigne lord King Charles the Second,” with Sir William Berkeley as governor)

As early as 1611, the corporate governing body back home in England (the Virginia Company of London) was trying to control the flow of immigration to Virginia, hoping to stop the influx of “vagrant and unnecessarie persons” who were a drain on limited colonial resources, and encourage instead an influx of “honest and industrious men, as Carpenters, Smiths, Coopers, Fishermen, Tanners, Shoomakers, Shipwrights, Brickmen, Gardeners, Husbandmen, and labouring men of all sorts” who, it was hoped, would contribute to colonial productivity and return a profit for the investors.

facsimile of early-17th-century broadside

^  Broadsheet published in 1611 by the Council for Virginia.
     An early example of the sort of ads furthering England’s colonial enterprise that circulated at the Royal Exchange, the center of British commercial activity from 1569–1666.
     This particular advertisement, calling for artisans of all kinds to join the Virginia colony, spells out policy changes concerning emigration (who was wanted, and who was not) that Francis Bacon would reiterate a decade later in his essay “Of Plantations.”
     The 1611 ad reads in full: “By the Counsell of Virginea. / Seeing it hath pleased God, after such hard successe, and the manifold impediments knowne to the world, that now by the wisdome and industry of the Lord Governour settled in Virginea, the state and businesse of the English Plantation there succeedeth with hope of a most prosperous event, and that therefore it is resolved and almost in a readinesse, for the further benefit and better setling of the said Plantation, to make a new supply of men, and all necessarie provisions, in a Fleet of good Ships, under the conduct of Sir Thomas Gates and Sir Thomas Dale Knights, and for that it is not intended any more to burden the action with vagrant and unnecessarie persons: this is to give notice to so many honest and industrious men, as Carpenters, Smiths, Coopers, Fishermen, Tanners, Shoomakers, Shipwrights, Brickmen, Gardeners, Husbandmen, and labouring men of all sorts, that if they repaire to the house of Sir Thomas Smith in Philpot lane in London, before the end of this present moneth of Januarie, the number not full, they shall be entertained for the Voyage, upon such termes as their qualitie and fitnesse shall deserve. / Imprinted at London for William Welby, 1611.”
     The ad is handsomely printed, typeset in black letter and ornamented with She-philosopher​.com’s Head-piece No. 1 — a symbol of spiritual and physical wayfinding, commonly used in early English books of science and navigation.

Immigrants who did not add to the wealth of the province were not welcome, as in the case of the Frenchmen brought to Virginia in the 1620s to develop a wine industry and a diversified economy that was linked to free markets around the Atlantic rim. The first vines in Virginia were planted by French workers brought to the colony on 10 June 1610 by Lord De La Warr (1577–1618), the new governor and captain general of Virginia (a lifetime appointment given him by the council of the Virginia Company of London, of which he had been a member since 1609). Laws mandating that all settlers plant vines (considered a staple commodity) date to 1619:

Moreover be it enacted by this present Assembly, that every householder doe yearly plante and maintaine ten vines untill they have attained to the art and experience of dressing a Vineyard either by their owne industry or by the Instruction of some Vigneron. And that upon what penalty soever the Governor and Counsell of Estate shall thinke fitt to impose upon the neglecters of this acte.

(Law passed on 2 August 1619 by the General Assembly of Virginia — the first legislative assembly that ever convened on the American continent)

Once situated in Virginia, the French viticulturists reneged on their deal, neglecting to cultivate the vine in order to plant (the much more profitable) tobacco, thus adding to the strains of monocultural production by contributing to the oversupply of Virginia tobacco. This, in turn, threatened the export market for that commodity as well as the colony’s Anglo-American planters of tobacco, who were “dishartened” by the competition. The result: government protectionism by way of Anglo-America’s first Aliens Restriction Act (allowing the Virginia government to imprison and deport French inhabitants brought to the colony on the 17th-century equivalent of work visas):

UPPON a remonstrance preferr’d to the assembly, complayninge that the ffrenchmen who were, about ten yeares since, transported into this country for the plantinge and dressings of vynes, and to instruct others in the same, have willinglie concealed the skill, and not only neglected to plant any vynes themselves, but have also spoyled and ruinated that vyniard, which was, with great cost, planted by the charge of the late company [the Virginia Company of London, whose charter was revoked in 1624, thereby making Virginia a royal colony] and theire officers here; and yet notwithstanding have receaved all favour and encouragement thereunto, which hath dishartened the inhabitants here, It is therefore ordered that the sayd ffrenchmen, togeather with theire families, be restrayned and prohibited from plantinge tobacco, uppon penaltie to forfeit theire leases, and imprisonment untill they will depart out of this colony.

(Act XVI, passed by Virginia’s General Assembly, “holden at James Citty the 21st of ffebruary, 1631–2”)

In the 1650s, laws were passed allowing the government to control alien labor, which was lumped in with Irish labor (in the 17th century, the Irish were considered a different race, separate and distinct from the English race), and first regulated in 1655:

BE it enacted by this Grand Assembly, That all Irish servants that from the first of September, 1653, have bin brought into this collony without indenture (notwithstanding the act for servants without indentures it being only the benefitt of our own nation) shall serve as followeth, (vizt.) all above sixteen yeares old to serve six years, and all under to serve till they be twenty-four years old and in case of dispute in that behalfe the court shall be judge of their age.

(Act VI, passed “att a Grand Assembly, held att James Citty, March 31, 1655”)

then amended by the Virginia Assembly in March 1657–58 so as all aliens were compellable to serve as long as Irish servants — “... and all aliens to be included in this act” (Act LXXXV).

(The Act for Irish Servants would later be repealed, at a legislative session held 13 March 1659–60, because the length of indenture specified in Act 85 of March 1657–58 had “discouraged” aliens from coming to Virginia, which desperately needed their labor. The revised Act XIV of March 1659–60 mandated that “for the future no servant comeing into the country without indentures, of what christian nation soever, shall serve longer then those of our own country, of the like age.”)

Legal inhabitants of Virginia were formally known as denizens, and the first law pertaining to what we would now call the acquisition of citizenship (by “aliens and strangers” who had been resident in the colony for four or more years) was enacted in 1658:

BEE it alsoe [further] enacted and confirmed by the authoritie aforesaid, That all aliens and strangers who have inhabited the countrey the space of ffower yeeres, and have a firme resolution to make this countrey their place of residence shall be free denisons of this collony, Provided they and everie of them take the oath of ffidelitie to be true to the government of this countrey, And the said oath is to be administred by the severall courts respectively in the counties where anie such aliens do dwell: And it is also further enacted that their children also shall bee ffree denisons of this countrey they and everie of them, Also takeing the said oath of ffidellity when they shall attain to lawfull age, which said oath is to be administred by the severall countie courts where they shall happen to live as aforesaid.

(ACT CXVIII, as passed by “a Grand Assembly holden at James Cittie, March the 13th, 1657–8”)

The first rights of Virginia citizenship were conferred on John Johnson, a Dutchman and millwright (whose particular skillset was in great demand), two years later:

ORDERED, That John Johnson, millright, being a Dutchman be for the encouragment of other artificers of what nation soever admitted to be a denizen of Virginia, he haveing been resident here much longer then the act for denizens requires, And intending according to the tenor thereof to make this the place of his future residence, Therefore upon oath taken according to act, his letters of denization are ordered to issue forth.

(“Orders of a Grand Assemblie, held att James Cittie, March 13th, 1659–60”)


**  N O T E  **    On 7/21/2020, President Donald Trump signed a memorandum that seeks to bar persons residing in the U.S. illegally from being counted for congressional reapportionment, as reported in “Trump Signs Memorandum Excluding Those in U.S. Illegally from Reapportionment” by Jill Colvin and Kevin Freking of The Associated Press (posted to the PBS NewsHour website, 7/21/2020).
   This is yet another attempt at radically modernizing U.S. constitutional law, all the while pretending to be rooted in founding principles:

Since the first U.S. census in 1790, both U.S. citizens and noncitizens — regardless of immigration status — have been included in the country’s official population counts. [...].
   The state of Alabama, however, is arguing in an ongoing federal lawsuit that the framers of the Constitution did not intend for the term “persons” to include immigrants living in the country without authorization. Alabama says it’s trying to avoid losing a seat in Congress after the 2020 census by seeking to leave out unauthorized immigrants from the results of the national count that are used to reapportion the U.S. House.
   U.S. Rep. Mo Brooks, R-Ala., who joined the state’s lawsuit, and Alabama State Attorney General Steve Marshall both praised Trump’s memo in statements released Tuesday [7/21/2020].
   “Representation should be based on those people who reside in their states and this country lawfully,” Marshall said in a statement. “A contrary result would rob the State of Alabama and its legal residents of their rightful share of representation and undermine the rule of law.”

(Hansi Lo Wang, “With No Final Say, Trump Wants to Change Who Counts for Dividing Up Congress’ Seats,” n. pag.; reference courtesy “vnt” in a comment posted to the AP story, “Trump Will Face Court Challenge to Order Excluding Unauthorized Immigrants from U.S. Census” by Mike Schneider of The Associated Press)

   Historically, “aliens and strangers” and other persons residing in this country without the proper authorization (illegal immigrants) have always been counted in the census, and included in the apportionment base for representatives (as in the 1658 statute mandating that “all persons inhabitting in this collonie that are freemen [are] to have their votes in the election of Burgesses”). As I have documented briefly above, since the founding of this country in the early 17th century (with the first, lasting Anglo-American settlement at Jamestown, Virgina), the rationale for fairly apportioning legislative representatives has never been legal residence (“citizenship”), but taxpayer status, in keeping with the republican principle no taxation without representation (as in the 1656 statute opening with the principled declaration that “we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in elections”).
   Seventeenth-century statutes did not privilege “the citizen population,” as distinguished from “the overall population.” And the annual census — intended to provide a true accounting for policymakers of the provincial population, assets, and GDP — was concerned with getting an accurate count of all “inhabitants” (documented, and not). The term “persons” most definitely included “immigrants living in the country without authorization,” who were counted annually like everyone else, and promptly taxed (with a few early exceptions for newcomers, and for “all the old planters that were here before or came in at the last coming of sir Thomas Gates”). Eventually, all inhabitants of Anglo-American settlements were taxed, with householders paying a poll tax on dependents (women, children, servants, slaves) as well as themselves.
   The U.S. Constitution (1789) built on the existing body of Anglo-American law, especially as it had developed in Virginia. The founding principle of no taxation without representation carried over into the 18th century, as we see in the constitutional language of 1789 juxtaposing the two, with the broadest possible apportionment base for representatives, exempting only “Indians not taxed” from the count (in Virginia, tributary tribes who acknowledged themselves to be English subjects were by special provision excluded from the poll tax, as in the Assembly’s statutory list of tithables in 1723 and 1748):

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative; and until such enumeration shall be made, the state of New-Hampshire shall be entitled to choose three, Massachusetts eight, Rhode-Island and Providence-Plantations one, Connecticut five, New-York six, New-Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North-Carolina five, South-Carolina five, and Georgia three.

(Article I, Section II of the Constitution of the United States [1789], as printed in 1809; click/tap here for the text of the original first amendment, “Of Representation,” which would have added new constitutional milestones for representation affecting the early growth of congress)

This rationale was later retained in the 14th Amendment, which also mandates “counting the whole number of persons in each State, excluding Indians not taxed” as the basis for apportionment of representatives:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

(Section II of the Fourteenth Amendment to the Constitution of the United States; adopted in 1868)

Of note, the phrase “male inhabitants of such State, being twenty-one years of age, and citizens of the United States” here pertains not to the apportionment base for representatives, but to eligible voters, whose right to vote can not be denied or abridged without changing “the basis of representation” and reducing the apportionment of representatives proportionally.
   Given that the practice of “counting the whole number of persons in each State, excluding Indians not taxed” dates back to the 1630s in Anglo-America, it is historically inaccurate for President Trump to claim that

Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. 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.

(Donald J. Trump, Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, issued on 21 July 2020)

   Jill Colvin and Kevin Freking report that “The presidential memorandum is expected to draw legal challenges.”
   And so it should.
   UPDATE 1:   On 7/29/2020, U.S. Census Bureau director Steven Dillingham testified at an emergency congressional hearing regarding President Trump’s 7/21/2020 memorandum seeking to exclude people in the country illegally from being included during the process for redrawing congressional districts. Four former Census Bureau directors who served under Democratic and Republican presidents also testified, as did a Chapman University law professor, all of whom were asked whether President “Trump’s order violated the law, if every person should be counted and if apportionment needs to include every person, including undocumented workers.” For details, seeWATCH: Census Head Tells House Oversight Committee He Wasn’t Told about Trump District Drawing Order” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 7/29/2020).
   UPDATE 2:   President Trump’s latest artifice for suppressing the constitutionally-mandated count of the overall population (“the whole number of persons in each State, excluding Indians not taxed”) in the U.S.: “What Risks Does Ending the Census Count Early Pose?” (PBS NewsHour Weekend segment, first aired 8/9/2020).
   SUMMARY: “The Census Bureau will stop its 2020 census count including in-person, mail, by phone and online on September 30, a month sooner than scheduled despite the delays caused by COVID-19. Hansi Lo Wang, a national correspondent at NPR, joins Hari Sreenivasan to discuss how this change may leave out historically undercounted groups including communities of color and immigrants.”
   UPDATE 3:   And another parry in the culture war President Trump is waging against this country’s radical legacy of universal suffrage: “GOP Ramps Up Effort to Monitor Voting after Restrictions Eased” by Eric Tucker and Nicholas Riccardi of The Associated Press (posted to the PBS NewsHour website, 8/11/2020).
   At this country’s founding in the early decades of the 17th century, the republicans who transplanted to Anglo-America were so intent on getting out the popular (male) vote that they passed laws levying substantial fines on those inhabitants who didn’t fulfill their civic duty and participate fully in all scheduled elections.
   Now in 2020, the Republican powers-that-be are intent on suppressing the popular vote, manufacturing fraud where there is none, and abusing the power of the state and courts in order to disenfranchise voters. The Republican National Committee and the Trump campaign are suing to give new powers to “poll monitors,” allowing them to challenge the eligibility of voters who may not think or vote as they would wish: “The GOP is recruiting 50,000 monitors, typically party activists and specially appointed volunteers, across 15 battleground states. Meanwhile, the party has filed, or intervened in, lawsuits challenging election rules across the country, including cases in battleground states like Nevada, Wisconsin and Florida over laws related to absentee ballots and voting by mail.” (E. Tucker & N. Riccardi, n. pag.)
   As described above, tampering with the popular vote in such a “tumultuous manner” is absolutely antithetical to the vision of popular government that drove the original Anglo-American democratical experiment.
   UPDATE 4:   The PBS NewsHour has again interviewed Hansi Lo Wang concerning looming problems with the 2020 census: “How Pandemic, Politicization Could Jeopardize 2020 Census” (first aired 9/1/2020).
   Commenting on this interview, “Ron Dodson” points out that this will “be the first failed census since 1920 which, ironically was conducted during the final stages of a pandemic. Another historic footnote is the last time the Census Bureau was pressured into sharing citizenship data, thousands of Japanese-Americans ended up in internment camps.” (n. pag.)
   As with the Trump administration’s efforts to roll back universal suffrage, executive branch interference in the 2020 Census, with the goal of distorting the count in order to further a partisan political agenda, is unconstitutional. A failed census — be it due to Trump administration malice and/or incompetence — is in violation of the law.
   As described above, an accurate count of all the country’s inhabitants has been stipulated by law since the first American census, prescribed by the Virginia legislature in 1619.
   UPDATE 5:   The first of the several lawsuits “filed in tandem across the country, challenging Trump’s memorandum as unconstitutional” was argued before a three-judge panel in New York federal court on 9/3/2020: seeAttorneys Argue Trump’s Exclusion Order for Count Is Illegal” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 9/3/2020).
   According to Schneider, attorneys for the State of New York and civil rights groups contend “that the president doesn’t have the discretion to ‘manipulate’ the census data to his liking once the count is finished.” “‘We don’t think it’s a difficult constitutional question,’ said Judith Vale, an attorney with the New York Attorney General’s Office. ‘The defendants have no authority, no discretion to subtract millions of undocumented immigrants.’” (n. pag.)
   Conversely, the defense contends “that the president has almost unlimited discretion to exclude people in the country illegally from the apportionment count.” When questioned closely by one of the judges, a government attorney, Sopan Joshi, admitted “there was no historical precedent to exclude people in the country illegally from the apportionment process,” but argued that history doesn’t matter “since the president has broad leeway in making decisions on the census.” (n. pag.)
   UPDATE 6:   “The Trump administration has pushed the Census Bureau to speed up the timeline for the count, and the Republican-controlled Senate failed to pass an extension allowing it to continue into next year. That has exacerbated concerns by civil rights groups and others of hard-to-count communities getting missed, especially people of color like Native Americans.” (Matthew Brown, Lindsay Whitehurst, and Iris Samuels for The Associated Press, “Battered by the Virus, Tribes Race to Boost Census Count,” n. pag.; posted to the PBS NewsHour website, 9/8/2020).
   “Native Americans are far from the only U.S. community of color facing a potential undercount, and a group of cities, counties, civil rights groups and the Navajo Nation are suing to extend the deadline. A judge in California over the weekend issued a restraining order that stops the Census Bureau from winding down its operations until a federal court hearing next week.” (M. Brown, L. Whitehurst, and I. Samuels, n. pag.)
   UPDATE 7:   “Supreme Court Halts Census in Latest Twist of 2020 Count” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 10/13/2020). This decision of 13 October 2020 is disappointing, in that the courts have apparently ceded their foundational role in ensuring an accurate census to the executive branch which, as of 2020, seeks the power to manipulate census data for partisan political gain — all of which is at odds with magistracy’s constitutional duty to “promote the General Welfare” (preamble to the U.S. Constitution).
   In her dissent, Associate Justice Sonia Sotomayor articulated founding values when she prioritized accuracy (“prevention of ffraud”) over deadlines: “Moreover, meeting the deadline at the expense of the accuracy of the census is not a cost worth paying, especially when the Government has failed to show why it could not bear the lesser cost of expending more resources to meet the deadline or continuing its prior efforts to seek an extension from Congress” (qtd. in M. Schneider, n. pag.).
   UPDATE 8:   “Supreme Court Will Review Trump Plan to Exclude Undocumented Immigrants from Calculations for Congressional Seats” by Robert Barnes (posted to The Washington Post website, 10/16/2020). SCOTUS has fast-tracked the case (Trump v. State of New York), with the hearing scheduled for 30 November 2020.
   To summarize: a three-judge panel of federal judges in New York has ruled that President Trump’s July 21 memorandum “was ‘an unlawful exercise of the authority granted to’ him by Congress. It blocked the Commerce Department and the Census Bureau from including information about the number of undocumented immigrants — it is unclear how those numbers would be generated — in their reports to the president after this year’s census is completed.” The panel’s “lengthy but unsigned opinion” further states “that the question is ‘not particularly close or complicated’ based on federal law.  ¶  ‘In short,’ the judges wrote, ‘the secretary is required to report a single set of figures to the president — namely, the tabulation of total population by states under the decennial census — and the president is then required to use those same figures to determine apportionment using the method of equal proportions.’  ¶  They added: ‘Legislative history and settled practice confirm our conclusion that “persons in each state” turns solely on residency, without regard for legal status.’  ¶  The Supreme Court is required to weigh in on decisions involving reapportionment, and it must either affirm or reverse the panel’s action.” (R. Barnes, n. pag.)
   Contrary to the three-judge panel’s opinion, the Trump administration’s acting solicitor general, Jeffrey Wall, continues to argue that “there is ample historical and structural evidence supporting the president’s policy determination that the standard does not apply to all aliens living within a jurisdiction without the sovereign’s permission to settle there.” (qtd. in R. Barnes, n. pag.)
   It is difficult for me to see how the Supreme Court, with a 6-to-3 conservative majority favoring an “originalist” interpretation of constitutional law, could possibly side with the Trump administration on this matter, and reverse the three-judge panel’s action.
   But, “It is unclear whether the matter would divide the court along ideological lines” since “the issue is another mark of how the once-a-decade census has been transformed from a largely bureaucratic exercise into the centerpiece of a partisan battle.” (R. Barnes, n. pag.)
   UPDATE 9:   “3rd Court Blocks Trump’s Order on Congressional Seat Count” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 11/6/2020).
   As of 6 November 2020, federal courts in New York, California, and Maryland have all ruled against President Donald Trump’s effort to exclude people in the country illegally from the apportionment count.
   Of note, the latest Maryland decision on 11/6/2020 “was more like the New York ruling [which the Supreme Court will hear the end of November 2020; see above, Update 8] in that it merely found Trump’s order unlawful, rather than unconstitutional. The California court decided that Trump’s order violated the Constitution and federal law.” (M. Schneider, n. pag.)
   UPDATE 10:   From Anglo-America’s first census in 1619, lawmakers have been concerned with getting an accurate count of the country’s population.
   In the 1600s, “prevention of ffraud” was achieved mostly by the imposition of hefty fines on those who did not comply with the laws governing reporting every “head” (inhabitant) in the province.
   Come 2020, individual states long ago ceded their original census-taking roles to the federal government, which continues to have its own problems with “prevention of ffraud” — some even of its own making, as Mike Schneider reports in “Census Takers Say They Were Told to Enter False Information” (posted to the PBS NewsHour website, 11/7/2020).
   “Under federal law, Census Bureau employees who make false statements can be fined up to $2,000 and imprisoned for up to five years. But census workers are rarely prosecuted for falsification of census responses since the Census Bureau is more concerned with identifying fraud and correcting mistakes than pursuing legal penalties, said Terri Ann Lowenthal, a former congressional staffer who specializes in the census.  ¶   During the 2010 census, two managers in a Brooklyn census office were fired for instructing workers to falsify questionnaires, requiring around 4,220 households to be recounted.” (M. Schneider, n. pag.) Whether recounts will be ordered this year to ensure that we have trustworthy data going forward is anyone’s guess.
   In the Comments section for this AP story, “amyinnh” posted: “The Mr was contacted 4 times to verify his info, Are you really not in NYC? I’m surmising the census takers are getting a lot of heat over the loss of citizenry in the major metros. Pandemic exodus is going to have impact for 10 years on house of representatives allocation and on federal funding allocation.” (n. pag.)
   She surmises correctly! Cf.California’s Manhattan Effect: The Wealthy Are Skipping the Census” by Nigel Duara (posted to the CalMatters website, 9/3/2020). The skewed California data will have a huge impact on “poorer communities that rely on taxpayer-funded social safety nets.” “An undercount of Californians has real-world consequences because it could cost the state a seat in the U.S. House of Representatives and less federal funding for affordable housing and anti-poverty programs, not to mention money for roads and infrastructure to school lunches.” (N. Duara, n. pag.)
   UPDATE 11:   “Census Case that Led to Head Count Halt Heads Back to Court” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 11/13/2020).
   UPDATE 12:   PBS NewsHour segment, “Supreme Court Reviews Trump Effort to Change Census Data on Immigrants” (first aired 11/30/2020). SUMMARY: “President Trump’s immigration policies and the U.S. census were back at the Supreme Court on Monday [11/30/2020]. As John Yang reports, the issues at stake in the case have the potential of shaping congressional and presidential politics for years to come.”
   This piece includes an interesting debate of the issues by regular NewsHour viewers/discussants: click on speech bubble labeled “197 comments” (at head of lefthand sidebar) to access the Disqus discussion thread.
   Supplemented by: “LISTEN: Supreme Court Appears Skeptical of Trump’s Census Plan” (posted to the PBS NewsHour website, 11/30/2020).
   As pointed out here, “Justice Amy Coney Barrett was among several members of the court who said the [Trump] administration’s argument for broad discretion in deciding whom to exclude is troublesome because ‘a lot of the historical evidence and long-standing practice really cuts against your position.’” I share this originalist interpretation.
   Again, I recommend the ensuing debate of the issues among NewsHour regulars. See the speech bubble labeled “171 comments” (top left of article) to access the related Disqus discussion thread.
   UPDATE 13:   “High Court Rules Challenge to Trump Census Plan Is Premature” by Mark Sherman of The Associated Press (posted to the PBS NewsHour website, 12/18/2020). This SCOTUS decision, delivered 12/18/2020, was about the timing of the plaintiffs’ “challenge to President Donald Trump’s plan to exclude people living in the country illegally from the population count used to allot states seats in the House of Representatives,” and not about the legality of Trump’s plan: “‘Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time,’ the court said in an unsigned opinion.” (M. Sherman, n. pag.)
   As such, “It’s not clear that Friday’s [12/18/2020] decision will have much practical effect. Documents leaked to the House committee that oversees the Census Bureau suggest the apportionment numbers won’t be ready until after Jan. 20 [2021], when Trump leaves office and Joe Biden becomes president. The Census Bureau has acknowledged the discovery of data irregularities in recent weeks that put the Dec. 31 deadline in jeopardy.” (M. Sherman, n. pag.)
   As pointed out by Dan Walters in his commentary, “GOP Congressional Wins Set Stage for 2022” (posted to the CalMatters website, 12/2/2020), multiple factors are at play in determining how many congressional seats California will have in 2022: “Demographers believe it’s likely that California’s slow population growth could reduce its allotment, now 53 seats, by one or two. However, it could lose even more if the U.S. Supreme Court, in a case that was argued just this week, supports Trump’s position that undocumented immigrants should be excluded from congressional seat calculations.  ¶   California is home to as many as three million undocumented immigrants and traditionally the decennial census has included them, along with citizens and legal immigrants, in the complete count used to determine the number of each state’s congressional seats.  ¶   Were undocumented residents excluded, it would translate into roughly three fewer seats for California, on top of the one or two seats the state might lose due to its overall slow population growth.  ¶   That’s why California Attorney General Xavier Becerra has joined the Supreme Court battle over Trump’s directive.  ¶   ‘For hundreds of years, the U.S. Constitution has been clear: everyone counts,’ Becerra said in a statement. ‘Here in California, we know that fundamental value extends beyond the census. No matter the color of your skin or where you come from, you count.’  ¶   However many seats California winds up having, their districts will be redrawn by a 14-member independent commission with five Democrats, five Republicans and four independents, and its first foray into redistricting a decade ago proved that its actions are not predictable.” (D. Walters, n. pag.)
   UPDATE 14:   “Census Bureau to Miss Year-End Deadline” by The Associated Press (posted to the PBS NewsHour website, 12/31/2020).
   Of note, “The Census Bureau’s watchdog agency on Wednesday [12/30/2020] said it was concerned about lapses in quality control checks meant to detect falsifications by census takers. The Office of Inspector General said the Census Bureau failed to complete 355,000 re-interviews of households to verify their information was accurate. [...] Former Census Bureau director John Thompson said the quality of the data is ‘the overarching issue’ facing the Census Bureau.  ¶   ‘If these are not addressed, then it is very possible that stakeholders including the Congress may not accept the results for various purposes including apportionment,’ said Thompson, who oversaw 2020 census preparation as the agency’s leader during the Obama administration.  ¶   He said in an email that missing the Dec. 31 [2020] target date ‘means that the Census Bureau is choosing to remove known errors from the 2020 Census instead of meeting the legal deadline.’” (n. pag.)
   UPDATE 15:   “Trump’s Census Plan in Peril as Bureau Expects February Release of Count Results” by Hansi Lo Wang of NPR (posted to the KPBS website, 1/4/2021).
   UPDATE 16:   “Data Snags Cause Trump to Miss Giving Congress Census Data” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 1/11/2021).
   “The earliest date the apportionment numbers will be ready is Feb. 9 [2021], as the Census Bureau fixes anomalies discovered during data processing, according to Department of Justice, which is representing the Commerce Department and Census Bureau in a lawsuit filed by a coalition of municipalities and advocacy groups in federal court in San Jose, California.  ¶   If that date holds, the Census Bureau will not finish processing the numbers until several weeks after Trump leaves office Jan. 20 [2021], putting in jeopardy an unprecedented order by the president to exclude people in the country illegally from those figures. President-elect Joe Biden opposes the order, which was inspired by an influential GOP adviser who wrote that excluding them from the apportionment process would favor Republicans and non-Hispanic whites.” (M. Schneider, n. pag.)
   UPDATE 17:   “Census Halts Efforts to Comply with Trump Citizenship Order” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 1/13/2021).
   UPDATE 18:   “Census Bureau Says Trump’s Push to Exclude Undocumented Is Dead: The Census Bureau said in a statement on Saturday it has agreed not to release data used to apportion congressional seats until after ‘the change of [a]dministration’ on Jan. 20” by Zach Montellaro (posted to POLITICO’s website, 1/16/2021).
   UPDATE 19:   “Census Bureau Director to Resign amid Criticism over Citizenship Data” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 1/18/2021).
   Cf.Census Bureau Director Stepping Down after Outcry over Immigrant Count: Pressure mounted on Steven Dillingham after an inspector general memo alleged he pressured employees to rush a report on the number of unauthorized immigrants” by Zach Montellaro (posted to POLITICO’s website, 1/18/2021).
   UPDATE 20:   “Census Data for Congressional Seats Still Months Away” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 1/27/2021).
   UPDATE 21:   “Census Says No Redistricting Data until End of September” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 2/12/2021).
   According to Schneider, U.S. Census Bureau officials “say they need the extra time to fix not-unexpected irregularities found in the data,” attributing ongoing operational delays to the COVID-19 pandemic. A “bipartisan group of U.S. senators [Democratic U.S. Sen. Brian Schatz of Hawaii and Republican U.S. Sens. Lisa Murkowski and Dan Sullivan, both of Alaska] introduced legislation that would extend the deadline for turning in the redistricting data to Sept. 30” and would set “an April 30 deadline for turning in the apportionment figures used for divvying up congressional seats among the states.” (M. Schneider, n. pag.)
   The “delayed release creates a chain reaction in the political world.  ¶   Several states will not get the data until after their legal deadlines for drawing new districts, requiring them to either rewrite laws or ask courts to allow them a free pass due to the delay. Candidates may not know yet whether they will live in the district they want to run in by the filing deadline. In some cases, if fights over new maps drag into the New Year, primaries may have to be delayed.  ¶   In the end, though, experts said the elections will proceed as normal in November 2022. The biggest impact will be to compress the window during which lawyers can challenge bad maps in court.” (M. Schneider, n. pag.)
   Of note, “Eric Holder, a U.S. attorney general in the Obama administration, warned that the new deadline shouldn’t be ‘a pretext to hold 2022 elections on old maps’ in an effort at political gain, or to draw maps without significant public input, using the compressed timetable as an excuse.” (M. Schneider, n. pag.)
   UPDATE 22:   PBS NewsHour segment, “How the 2020 Census Affects Washington’s Balance of Power” (first aired, 4/26/2021). SUMMARY: “The first batch of results from the 2020 census count are in. The bureau released state population numbers today and revealed how the balance of power in the U.S. House of Representatives has been reset for the next decade, and could affect the electoral college. Congressional correspondent Lisa Desjardins and Cook Political Report’s Amy Walter break it down.”
   As reported by Lisa Desjardins, “The Bureau showed three states in the South have gained enough population to add seats in Congress, Texas gaining two seats and North Carolina and Florida one apiece.  ¶   The other three states adding one each are West, Colorado, Montana and Oregon. In turn, seven states will lose one seat each, California and then a cluster of Rust Belt states, West Virginia, Pennsylvania, Ohio, Michigan, Illinois, and New York.  ¶   For New York, some sting to the loss. Officials said the state needed to count just 89 more people to keep all of its congressional seats. [...] states that lost, like New York, are sure to be unhappy, along with some states that gained, like Florida, which expected two new seats, not just one. It’s too late to add more population, but states do have one option: to appeal these numbers in court.” (n. pag.)
   According to the U.S. Census Bureau, our national population topped 331 million in 2020.
   Amy Walter describes the impact the new census data will have on apportionment: “[...] the real nitty-gritty is going to come later this summer when the detailed data is released and they have to start drawing those lines.  ¶   That is when you are going to hear words like gerrymander. Even states that aren’t gaining or losing, unless you are a state that only has one congressional district, you have to redraw your lines. Population shifted around a lot. Think about a place like Georgia, where the Atlanta suburbs have been booming, not so much in the other parts in the state.  ¶   So, they’re going to have to readjust those congressional lines. You can gain or lose a seat as a party just because — even if you are not gaining or losing a congressional district, right?  ¶   The good news for Democrats, they have more control over the process than they did in 2010, the last time the lines were drawn. The bad news for Democrats, the good news for Republicans is that Republicans still control more than twice as many congressional district lines, in terms of, they have total control for drawing that many more lines.  ¶   That is likely to help, as I said, especially in places that are fast growing, Texas, North Carolina, but also in a place like Georgia, where Democrats have made really big gains in these last two years, but Republicans control the entire line-drawing process.  ¶   And so what you may see there is Democrats actually winning two Senate seats, but in the next upcoming election, they may lose a congressional district.” (n. pag.)
   Related stories are here: “Census: Texas Gains Congress Seats, California Loses for the First Time” by Mike Schneider and Nicholas Riccardi of The Associated Press (posted to the PBS NewsHour website, 4/26/2021).
   And here: “Census Surprise: Texas Gains Only 2 Seats as Shift to Sun Belt Slows: The gains and losses by states for the next decade were smaller than most observers expected” by Ally Mutnick (posted to POLITICO website, 4/26/2021).
   And here: “Census Data Leaves Latinos Wondering: Were We Counted? After warnings about a potential undercount of the Latino population, three key Sun Belt states made smaller than expected gains in House seats” by Zach Montellaro and Ally Mutnick (posted to POLITICO website, 4/27/2021).
   UPDATE 23:   “Loss of House Seat May Be Bad News for Funding, Access to Reps” by Charles T. Clark (San Diego Union-Tribune, 4/30/2021, pp. B1 and B3), retitled “CA Lost a House Seat Despite Massive Census Outreach; But There Are More Issues” for online posting.
   Clark notes that “California spent $187 million on census outreach, more than any other state in the nation.  ¶   Community groups across the state and in San Diego launched unprecedented outreach campaigns. Members of San Diego’s sprawling Count Me 2020 coalition volunteered more than 3,500 hours to bolster response rates.  ¶   They were largely successful, despite a pandemic knocking out face-to-face interactions and attempts by the Trump administration to suppress participation.  ¶   In San Diego County nearly 74 percent of households responded to census surveys — a more than 5 percent increase over the 2010 census — and California’s response rate, 70 percent, exceeded the national average.  ¶   Yet California will lose a congressional seat — even after our population increased by more than 2 million — because our 6 percent growth rate is below the nation’s 7.4 percent average.  ¶   The fallout goes beyond a lost House seat.  ¶   It will potentially impact community services by affecting federal funding. And it will likely reduce the ability of some community organizations to access elected officials. It also raises questions about the quality and fairness of our system of political representation.” (C. T. Clark, B1)
   UPDATE 24:   “Delayed Census Data Kicks Off Flood of Redistricting Lawsuits: Litigation Is Already Piling Up Before New Maps Are Even Drawn” by Zach Montellaro (posted to POLITICO website, 5/1/2021).
   “So far, California asked for and received a redistricting extension from state courts last year, while Michigan redistricting officials recently asked courts to extend their redistricting window. Other states have sued the Census Bureau to try to force an earlier release of redistricting data.  ¶   Ohio was the first state to file a case, which was dismissed by federal district court, a decision the state appealed. Alabama also filed a federal lawsuit challenging both the release schedule and the use of ‘differential privacy,’ a process that will blur demographic data on small geographic levels. The Census Bureau says it is necessary to protect any one individual from being identified, but mapmakers fear it makes the data functionally unusable.  ¶   Other states are considering using data other than the decennial count to draw their map lines — including data from the American Community Survey, another Census Bureau product that is independent of the decennial count and is based on a survey instead of a hard count, which would almost assuredly spawn legal challenges.  ¶   ‘It’s not that the ACS data is in itself wrong, but it is like grabbing a pair of sunglasses when you need to read the fine print,’ Feng said. ‘It is not going to give you the sharp focus you need.’  ¶   New York Gov. Andrew Cuomo also said he was ‘looking at legal options’ after his state lost out on an additional House seat on Monday by 89 people. But courts have not acted on similar cases in the past, redistricting attorneys say, while noting the pandemic has introduced a new dimension of uncertainty.” (Z. Montellaro, n. pag.)
   UPDATE 25:   Given the brewing legal battles over the Census Bureau’s implementation of “differential privacy” (scil., Alabama’s federal lawsuit, as reported on above [see Update No. 24]), I want here to recommend Zack Stanton’s fascinating interview with Tufts University mathematician, Moon Duchin: “Is Gerrymandering About to Become More Difficult?: A New Approach in the Way the Census Aggregates Its Data Could Make It More Difficult to Do Extreme Gerrymandering, Says Moon Duchin” (posted to POLITICO Magazine website, 5/27/2021).
   With the 2020–2021 census, “the Census Bureau has added random noise to its data that makes it slightly inaccurate at the smallest, most zoomed-in level, but accurate at an aggregate, wide-angle view. The approach, known as ‘differential privacy,’ aims to protect the anonymity of census respondents amid a glut of third-party online data that could otherwise make it possible to personally identify census respondents.” This, in itself, is a worthy goal, but there are other benefits, too: the new practice of “differential privacy” may actually prevent “extreme gerrymandering” and “complicate partisans’ designs for the 2022 congressional maps.” (Z. Stanton, n. pag.)
   Probing into the psychology of mapping, Duchin explains about the aesthetic pull of electoral maps and “the difference between neutrality and fairness in map designs.”
   “Is a ‘badly’ shaped district bad? [...] If we required ‘good’ shapes, would we successfully eliminate the things that bother us about gerrymandering? [...] Badly shaped districts play with our intuition. We see them and think they must be abusive; that something has to be wrong. But we now have lots of examples — just from the last cycle — that show us that while badly shaped districts are a fairly successful flag that somebody was trying to do something, they don’t really tell us what their agenda was, or whether it was nefarious or benign. [...] On the other side of the equation, though, is a lesson that we gerrymandering obsessives have learned in the last 10 years: A requirement for ‘good shape’ doesn’t get you very far. North Carolina and Pennsylvania, those are two states where we had really clear examples [of this in the past decade]. The initial congressional district plans in those two states were very noncompact, with these shapes that I like to call ‘tumors’ and ‘fractals’ — completely irregular, not plump or well-rounded or whatever other descriptors we like. They looked unreasonable, and actually were unreasonable. But in both cases, under pressure, when the legislatures had to redraw, they came up with maps that looked great, but locked in all the same partisan advantage.  ¶   That’s sort of the dual disappointment of district shape: Bad shapes are not necessarily bad, and good shapes are not necessarily good.” (M. Duchin, n. pag.) Indeed, “a district can be distorted-looking, yet drawn with totally good intentions, yet still cause democratic harm by giving the appearance of ill intent.” (Z. Stanton, n. pag.)
   Duchin also addresses complicated issues of proportional representation.
   “The two simplest flags of wrongdoing, in terms of public intuition and conventional wisdom, one is about shape and the other is about disproportions.... With disproportions, you heard this talked about a lot in the last [redistricting] cycle in the states that were sued: Maryland, Pennsylvania, North Carolina, Wisconsin and Texas. (There will always be lawsuits in Texas; I think that’s just a natural law.) Wisconsin’s voting patterns were roughly 50-50 [between Democrats and Republicans], but you had a more than 2-to-1 ratio of Republicans to Democrats in the state Legislature. Pennsylvania had roughly 50-50 voting patterns, but a 13-5 Republican-majority in its congressional delegation; in North Carolina, same thing, and its delegation was 10-3 [in favor of Republicans].  ¶   It appeals to that same hard-wired intuition as in the Massachusetts example, where you had 2-to-1 voting, but a complete sweep for Democrats: that, absent any gerrymandering, you should expect the share of votes [statewide] to be roughly reflected in the share of seats. It’s about proportionality. One problem with that is that sometimes just the actual geography of where people live and how they vote makes it hard or even impossible to get to equal proportions.  ¶   But there’s another problem, which conservatives on the court like to hold up: Nobody said proportionality was the goal. That might be your intuition, but if you want a proportional system, the conservative justices like to say, you should move to Europe. Most of the rest of the world has a different way of composing its legislature that is built to guarantee more proportionality with voters’ party preferences. We don’t do that in the U.S. So, we’re in a funny position, where the universal intuition of what ‘fairness’ would mean is nowhere in the rules.  ¶   OK, so what might you do about that? Well, one thing you can do is to make it a rule. Ohio was maybe the first state to do that, and it happened pretty recently. In 2018, Ohio voters passed a [state] constitutional amendment creating a commission — a not-very-independent commission, it turns out — and written into those rules was the goal that the [partisan] share of seats should reflect the share of [statewide] votes. And as far as I know, that’s the first spelled-out instance of setting up proportionality as a goal.  ¶   For a mathematician like me, that’s really sensible: State your goals, then we can try to achieve them. But when your goals remain really vague, it’s very difficult to talk about why one might be better or fairer than the other.” (M. Duchin, n. pag.)
   UPDATE 26:   PBS NewsHour segment, “What Texans Stand to Gain and Lose from the Redistricting Battle Now Underway” (first aired on 6/11/2021).
   SUMMARY: “State legislatures across the U.S. eagerly await new census data that would impact the redrawing of congressional district lines. One state that has a lot at stake is Texas, which is gaining two congressional seats due to population growth largely fueled by communities of color. But they may not be the ones benefiting from the redistricting fight. NewsHour’s Lisa Desjardins and Daniel Bush report.”
   The difficulty of accomplishing “extreme gerrymandering” when redrawing 2022 congressional maps now impacts even states like Texas, where Republicans control the state legislature and “are driving the bus.” As Daniel Bush reports: “And what you can see from speaking to Republicans is the sense that it is harder and harder, when they look at how to carve up these districts and find Republican votes, to find those votes, because, increasingly, these are Democratic areas. Joe Biden, President Biden, won Fort Bend County by 10 points last year. [...] Republicans only need to pick up five seats to win back control of Congress. So they look at Texas as a place where they can gain a couple of seats. It’s very important.  ¶   And then, of course, nationally, what the census showed us, Lisa, is that states in the Northeast are losing population. People are moving to the South, the Southwest. And those areas, which used to be Republican states, Republican strongholds, are becoming more and more competitive.  ¶   So the landscape is shifting.” (n. pag.)