Tuesday, October 20, 2020

The Census, Reapportionment, and Section Two of the Fourteenth Amendment

Gerard N. Magliocca

On Friday, the Supreme Court granted certiorari to review the Administration's effort to exclude from the population tally for the upcoming reapportionment people who are in the United States illegally. There is little chance that the Administration will win this case. I do hope, though, that at least one of the Justices will flag the serious constitutional flaw in the reapportionment statutes that I analyzed in this article two years ago. Time is running out for Congress to address the conflict between current reapportionment law and Section Two of the Fourteenth Amendment. If no action is taken, then there is a real risk that the next reapportionment could be delayed beyond 2022.

Section Two of the Fourteenth Amendment is at the heart of Trump v. New York. First, Section Two sets forth only one exception to counting everyone for representation--"Indians not taxed."  Second, Section Two contemplates separating the total population only from the population of presumptive voters whose right to vote is being "denied" or "in any way abridged." People who are in the United States illegally are neither "Indians not taxed" nor presumptive voters (as Section Two limits that class to citizens). Thus, the President's instruction to the Commerce Secretary that certain non-citizens be excluded or separated from the population count is unconstitutional.

Since Section Two must be addressed in any sensible assessment of the Administration's policy on the merits, the broader issue of how the reapportionment statutes violate Section Two is on the table. The Court need not address that point now, but a separate opinion making the point might spur congressional action next year.



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