By Michael L. Rosin
In a recent Wall Street Journal op-ed, David B. Rivkin, Jr. and Gilson B. Gray suggest the Trump administration ground its rationale for asking a citizenship question of everyone in the Penalty Clause of Section 2 of the Fourteenth Amendment. In a National Review bench memo, Matthew Franck chides them for their convenient clipping of the text. A careful reading of that text reveals that asking everyone about his or her citizenship status is more than the Penalty Clause requires for its enforcement, and also a whole lot less.
First, a brief word about how we got here. On June 27, the Supreme Court determined that the Trump Administration’s stated reason for proposing to ask about citizenship status on the census — to enforce the Voting Rights Act — was “contrived.” The Trump Administration had repeatedly told courts that forms had to be printed by July 1, and, several days later, DOJ lawyers confirmed to federal courts that they would not printing forms with a question about citizenship. But then the President, in a tweet, decided that he still wanted to find a way to ask the question, which is likely to help Republicans electorally, and that set off a mad scramble for a valid legal reason to add this question.
Rivkin and Gray’s citation of Section 2 of the Fourteenth Amendment suggests that is one possibility the Administration could be looking at. But the argument does not hold water.
Here is the full text of section 2, with certain emphases added:
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.
This text requires three numbers to determine a state’s apportionment basis. (1) The state’s total population (excluding Indians not taxed); (2) The number of male citizens 21 or older whose voting rights have been denied or abridged, except if any abridgment is based on a citizen’s participation in rebellion or commission of a crime; and (3) The total number of male citizens 21 or older.
Rivkin and Gray implicitly acknowledge that, thanks to the Nineteenth Amendment extending the right to vote to women and the Twenty-Sixth Amendment extending the right to vote to 18 year olds, the reduction in voting power should be based on the percent of all citizens 18 or older whose voting rights have been abridged, not male citizens over 21. But the argument goes downhill from there.
For one thing, the protections of the Twenty-Sixth Amendment do not extend below the age of eighteen. So asking about the citizenship of anyone below the age of eighteen serves no purpose related to the enforcement of the Penalty Clause. So any proposal to ask everyone about their citizenship status regardless of age does more than the Penalty Clause requires.
But the proposal to ask about citizenship status also does much, much less than the Amendment requires. The missing element is the number of adult citizens whose voting rights have been denied or abridged. We have heard nothing from the administration about their plans to gather this data, but without this data the Penalty Clause provides no grounds for collecting citizenship data from anyone. Without this denial/abridgement data, the Penalty Clause cannot possibly be enforced.
Interestingly, the reverse is not necessarily true. That is, in some cases the Penalty Clause can be enforced without knowing the number of adult citizens in a state.
Consider the following example from the recent Texas case about Voter ID. In that case, Texas, acknowledged that 608,470 adults citizens were without satisfactory voter ID to vote under their restrictive law. Veasey v. Abbott, 796 F.3d 487, 509 n.25 (2015). Let’s suppose that this constitutes an abridgement of their right to vote.
The 2010 census counted a total of 25,268,418 persons in Texas. Based on data from the 2010 American Community Survey, there were 15,851,167 adult citizens in Texas. That is 62.73% of the total. Thus, the number of persons by which Texas’s apportionment bases would be reduced is scaled up to 969,965, which is 608,470 / 0.6273. This leaves Texas with a revised apportionment basis of 24,298,453.
In other words, by abridging the right to vote of that many people, Texas is “penalized” about 1,000,000 people in terms of their representation relative to other states — hence the nickname of the “Penalty Clause.” So how meaningful is that penalty?
It turns out Texas should lose three House seats and electoral votes. The apportionment based on the 2010 census resulted in an average House district size of 710,767. With its apportionment basis reduced by 969,965, it might appear that Texas would have been in jeopardy of losing only one House seat. But averages are averages and the devil is always in the details. Texas’s 36th and final actual seat was the 433rd seat awarded out of 435. Thus, it should not be surprising that Texas would have lost more than one seat with a 969,965 reduction and in fact it would have lost a total of three.*
Of course, the Trump Administration has shown no interest in docking Texas or any other state a House seat or three for any abridgements of the right to vote. To be fair, neither did the Obama Administration. But the Obama Administration, unlike Mssrs. Rivkin and Gray, did not propose to undergird the entire Census on this constitutional provision that has never been enforced. But their claim that “the Constitution itself requires the collection of citizenship information” is empty if it is not accompanied by a plan for counting the number of adult citizens whose voting rights have been “denied … or in any way abridged.” Perhaps Messrs. Rivkin and Gray will propose such a plan in their next op-ed.
Michael L. Rosin is a guest contributor and a constitutional historian. He is the author of amicus briefs in Equal Citizens’ Equal Electors litigation in Colorado and Washington. He can be reached at firstname.lastname@example.org.
*This calculation supposes that we have sufficiently accurate enough citizenship data. Without that, Texas could lose only two seats. Anyone wishing to learn the details of the interstate apportionment of the House should consult the relevant Census Bureau page or the Wikipedia page describing the method used.