Bench Memos

Law & the Courts

Census Pretext Redux

At a naturalization ceremony in Washington, D.C., in 2013. (Larry Downing/Reuters)

In an op-ed in the July 5 Wall Street Journal, David B. Rivkin, Jr. and Gilson B. Gray argue that the Trump administration should rely upon what they see as an overlooked mandate of the Constitution. Here is how Rivkin and Gray put it: “The Constitution itself requires the collection of citizenship information.” Where, you ask? They continue:

Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such . . . citizens shall bear to the whole number of . . . citizens . . . in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.

The ellipses employed by the authors are too convenient.  Here is the full text of Section 2 of the Fourteenth Amendment (with my emphasis):

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.

A little later, Rivkin and Gray characterize the amendment’s requirement this way: “The amendment forbids state interference with the rights of all eligible voters (then limited to males over 21).” While the concluding parenthetical concession is true, the foregoing sentence is false.

Section 2 requires that a state’s representation in the House—and thus also its votes in the electoral college—be reduced according to the proportion of its male citizens age 21 or higher, not disqualified from voting for rebellion or criminal history, who are prevented from voting. Let us suppose, for instance, that Louisiana, whose population today is about one-third African-American, simply denied all those citizens the right to vote.  If the black male citizens over 21 wrongly denied the suffrage amounted to one-third of all male citizens over 21 in Louisiana, the state would lose two of its six seats in the House of Representatives (and two of its eight electoral votes).

Note that the amendment does not actually protect anyone’s voting rights by any direct enforcement action of the federal government; it simply imposes a cost on states that deny the suffrage—and again, only if they deny it to male citizens 21 or more years of age. The population of voters today, of course, includes all adult citizens of both sexes who are at least 18. But it is the worst kind of “keeping the Constitution in tune with the times” nonsense to say that today “male citizens over 21” actually means “all eligible voters,” as Rivkin and Gray blithely claim.

In our hypothetical Louisiana example above, the state would lose two seats in the House if Section 2 were enforced. But it never has been, and one could hardly call the provision self-executing, in the way that provisions like due process and equal protection of the laws are self-executing—that is, at least in some respects by judicial enforcement of their terms against offending states. Under its powers granted by Section 5 of the amendment “to enforce, by appropriate legislation, the provisions” of the previous sections, Congress would have to legislate some scheme by which an assessment has been made of whether male citizens over 21 have been improperly prevented from voting, followed by a correctly proportioned reduction of an offending state’s representation in the House—with the concomitant redistricting that this in turn would require.

It’s really no wonder that Section 2 of the Fourteenth Amendment has never been enforced. It would be both complicated and unpleasant to attempt it. No doubt realizing that this roundabout mechanism for securing the suffrage of the former slaves of the South was ineffectual, Congress proposed and the states ratified the Fifteenth Amendment just two years later. As historian Paul Moreno notes, “The Fifteenth Amendment made Section 2 [of the Fourteenth] superfluous.” And although even this last Reconstruction amendment awaited real enforcement for 95 years before the Voting Rights Act was enacted, at least the Fifteenth had the textual advantage of making no reference to sex or age, simply forbidding denial of the suffrage on the basis of “race, color, or previous condition of servitude.” And so unlike Section 2 of the Fourteenth Amendment, the Fifteenth was not doomed to be an anachronism.

Can the president, as Rivkin and Gray suggest, simply issue an executive order adding a citizenship question to the census in order to “comply with the requirements of Section 2”? Not, I should think, if the Congress has not asked for the pertinent information on male citizens over 21 denied the vote, in order to set in motion a reduction of offending states’ congressional representation. And no enforcement legislation exists requiring any such information.

A little over a week ago, Chief Justice Roberts rejected the Trump administration’s stated reason for the citizenship question as pretextual. Whether that decision was right or wrong, the Rivkin-Gray gambit looks like a dubious new pretext for adding a citizenship question to the census.








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