Is the Government Required to Count the Number of Citizens in Each State?

Prof. Josh Blackman (South Texas) asks this very interesting question.

|The Volokh Conspiracy |

I don't myself have any expertise on the Census citizenship question case (which has mostly been litigated as an administrative law case), but I thought Prof. Blackman's query was intriguing, and wanted to post it:

The Fifteenth Amendment, ratified in 1870, provided that the "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." The Fourteenth Amendment, ratified two years earlier in 1868, provided another mechanism to prevent states from disenfranchising the freedmen: states that abridged the right to vote would lose representation in Congress.

Section 2 has three relevant clauses (emphasis added):

  1. "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.
  2. "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,
  3. "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."

First, representation is allocated based on the "whole number of persons." This provision expressly repudiated the three-fifths clause, which allocated representation based on "three fifths of all other Persons," that is, slaves. Indeed, the census is now responsible for counting the "whole number of persons," that is the "actual enumeration."

Second, the Fourteenth Amendment asks if male citizens over the age of twenty-one are denied the right to vote in state or federal positions. If so, there is a penalty.

Third, the Fourteenth Amendment mandates that offending states will lose representation in Congress in "proportion" to "the whole number of male citizens twenty-one years of age in such State."

While the census counts the "whole number of persons" to establish the "actual enumeration," Section 2 of the Fourteenth Amendment requires an additional piece of information: "the whole number of male citizens twenty-one years of age in such State." (I will table for now whether subsequent amendments—the Nineteenth Amendment and Twenty-Sixth—impliedly modified that clause to also require a count of the number of female citizens over the age of eighteen.)

If this argument is correct, then the government would not only be justified in counting the number of citizens in a given state; Section 2 would require the government to have this information available, in the event that a state deprived males (and females) of the right to vote. This is an obligation: the representation "shall be reduced." And Congress would not be able to enforce Section 2 without an additional enumeration based on citizenship. An estimate would not suffice.

Moreover, the number of citizens must be counted in advance. It would subvert the operation of Section 2 to wait until the next decennial census to count citizens. The waiting period could be as long as ten years. This information need not be collected in conjunction with the census. But it would be reasonable for the government to utilize the census process to collect this additional information. And once the government knows the total number of citizens, it can then discount minor citizens.

Professor Kurt Lash, who compiled an exhaustive two-volume set about the Reconstruction Amendments, tells me that certain documents in the historical record seem to anticipate using the census to enforce section 2. See The Reconstruction Amendments: Essential Documents" (2 vols) (Kurt T. Lash, ed.) (forthcoming U. Chicago Press). For example, in December 1865, Rep. Thaddeus Stevens discussed proposed text of what would become Section 2. He said, "A true census of the legal voters shall be taken at the same time with the regular census." In May 1866, Senator Jacob Howard gave a famous speech introducing the Fourteenth Amendment. He stated that "where a State excludes any part of its male citizens from the elective franchise, it shall lose Representatives in proportion to the number so excluded." Howard's speech makes several references to the role that the census plays in enforcing this requirement.

This research is quite cursory. I did not see this issue briefed anywhere in the census litigation. I raise the question here, and welcome any feedback.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

179 responses to “Is the Government Required to Count the Number of Citizens in Each State?

  1. It seems that it should matter that clause 3 has never been invoked, while it is clear that the citizenship question will – not “might” – affect the accuracy of the count of the “whole number of persons.”

    1. So your response to the fact that clause 3 has never been invoked (though it really ought to be pointed out that that is not for the lack of violations of the 15th Amendment, or the Voting Rights Act, and specifically the States specified as requiring preclearance in Section 5 of the VRA, never would have been necessary) is to basically make clause 3 unenforceable by denying the Federal Government the required information – the whole number of white male citizens over the age of 21 (or whatever expanded subset of citizens may be required after the 19th and 26th Amendments) – necessary for enforcement?

    2. 1. Why should it matter that clause 3 has never been invoked ?

      2. I believe Gorsuch was doubting that it was “clear” that the citizenship question “will” affect the accuracy of the count, and he’s a lot cleverer than you. (And me.)

      But of much more interest to me is how clause 3 would actually work if it were to be invoked. We discover after the election that say Tennessee has been up to no good and has disenfranchised some folk.

      Presumably then we do a recalculation of Tennessee’s notional population making the requisite adjustment, and after redoing all the numbers we calculate that Tennessee ought to have one fewer Representative and, say, Georgia ought to have one more. But how does that work ? If we’ve had the election, which Tennessee congressman has to step down ? And then all the voters in his district have been disenfranchised so they’ve all got equal protection claims. So Tennessee will need to have a do over. After redistricting to one fewer district. And likewise for Georgia and its extra one.

      I can’t see the whole thing taking less than the whole congressional cycle to get sorted out.

      1. Lee,

        I believe Gorsuch was doubting that it was “clear” that the citizenship question “will” affect the accuracy of the count, and he’s a lot cleverer than you. (And me.)

        But is he cleverer, more knowledgeable about these issues, than the Census Bureau’s own statisticians? No, he’s not. Not by a long shot. What he’s doing is grasping at a straw, making things up, to justify his position.

        1. Every question beyond, “How many people reside here?” has the potential to affect the accuracy of the count. You want to argue that’s the only question that should be asked, that can be a consistent stance.

          “I only want questions asked that I’m not avoiding having the answer to.” is not such a respectable stance, though.

          The question was unambiguously asked for most of the censuses, relegating it to the long form is a relatively recent development.

          1. Yes, Brett. But the question is whether it has a significant effect. Size matters, as does, by the way, geographic distribution.

            It’s one thing to have small, randomly distributed errors. It’s something else to have larger errors concentrated in certain known areas.

            Stop the BS that you know is BS.

            1. Pot->Kettle

              1. Sorry, Matthew, I disagree.

                1. Calling it an error is pure question begging.

                  1. Not when you have that as the official opinion of the people at the census in charge of coming up with that analysis.

                    Deciding not to listen to them, and then also not to do even a modicum of work to explain your own reasoning (the voting rights excuse came later, and is also transparently pretext), and then lying about the procedural posture, that’s begining as capricious a set of facts as you can get.

                    1. “the official opinion of the people at the census in charge of coming up with that analysis.”

                      Ipse dixit. The people assigned to come up with something came up with something. Wow, that’s a winning rebuttal.

                      How’s this: The person Constitutionally authorized to say so said otherwise.

                      Top that.

                    2. How about,

                      “The opinion, based on actual past data and surveys, of people who actually know something – a lot – about the matter say so.”

                      That’s an excellent rebuttal for anyone not making tendentious legalistic arguments, especially since there are statutes that pretty much require the idiot in charge to take those opinions seriously, and not just make shit up.

            2. Yes, the question is whether or not it has significant impact.

              So, please give us a link to the solid study that covered all the bases, and shows that:

              1: Asking the question leads to significant undercounting
              2: Normal Census followup doesn’t take care of the problem.

                1. Did you actually read the report that you linked?

                  While that report does discuss the item-response rates for answers to questions about citizenship and does note that many people decline to answer that question (and that others answer untruthfully) and mentions in passing that in purely voluntary internet-based surveys, some fraction abandon the survey at that point, that paper does not reliably reach the conclusion that adding a citizenship question to the official and compulsory census will cause a significant undercounting. The most that their methodology reaches is a conclusion that there might need to be more of the “normal” census followup than usual.

                  And I should note in passing that the methodology used in that paper has been criticized on several grounds. Most notably, their reliance on computer models which could be said to have assumed their conclusion.

                  1. “…that paper does not reliably reach the conclusion that adding a citizenship question to the official and compulsory census will cause a significant undercounting.”

                    Yes it does, pages 37-41.

                    “And I should note in passing that the methodology used in that paper has been criticized on several grounds.”

                    I’m happy to look at those criticisms if you’ll provide a link.

                  2. Rossami,

                    Where are the knowledgeable statistical experts who, besides maybe questioning methodology, have produced solid analyses saying the Census staff is wrong?

                    I haven’t seen that. Until I do all the hyperventilating about how experts are sometimes wrong, and the amateurish quibbles of some of the Justices, are not worth much to me.

          2. Every question beyond, “How many people reside here?” has the potential to affect the accuracy of the count.

            There’s no claim in this case about abstract “potential” to affect the count’s accuracy. The claim is that there’s specific evidence in the record that it will affect the count’s accuracy.

            1. I refuse to answer questions about my race on the census. I will not return a census card that inquires as to my race.

              Any questions concerning race on the census will affect the count’s accuracy. Therefore, any questions concerning race are unconstitutional.

              1. Statistically, your decision to not return your census will not affect the count’s accuracy. Only if a large number of people–say 6.5 million–elect not to return the cards, would it affect the count’s accuracy.

                1. Actually, only if many people in specific areas don’t return the card will it affect the accuracy for practical purposes.

                  If the non-returned cards are widely distributed they won’t affect apportionment.

                2. Yes, my decision not to return the card would affect the count’s accuracy. It might not be statistically significant for an individual to fail to return a card, but it does absolutely does affect the accuracy.

                  The Census bureau knows a portion of respondents will not return the card, so they include an estimate of that number in the census report. There are lots of reasons for an error rate. To pretend that the Census doesn’t know about under-reporting and account for it is absurd.

                  1. “To pretend that the Census doesn’t know about under-reporting and account for it is absurd.”

                    I agree that this person you’ve imagined is being absurd.

        2. the Census Bureau’s own statisticians

          Accepting, by way of stipulation, that they are all unspeakably honest, and unlike the rest of the federal bureaucracy, lacking a bent over backwards partisan lean to the Dems….

          …we have seen many examples over the years of government experts getting thing totally wrong. We were told for example that voter ID laws would crush turnout. That turns out not to be the case. The CBO’s efforts on estimating the budgetary effects of (a) Obamacare and (b) the abolition of the mandate penalty have been embarrasingly wrong, to put it as kindly as I can.

          Which is not to say that I regard honest experts as valueless , far from it, merely that they – or at least some of those who puff them – can sometimes tend to overconfidence. Consequently sticking with “may” seems wiser than leaping to “will.”

          1. Accepting, by way of stipulation, that they are all unspeakably honest, and unlike the rest of the federal bureaucracy, lacking a bent over backwards partisan lean to the Dems….

            Unlike you – most people don’t let their political beliefs colour their work.

            we have seen many examples over the years of government experts getting thing totally wrong. We were told for example that voter ID laws would crush turnout.

            No one said voter ID laws would “crush” turnout. What was said that there was evidence that it would prevent many Americans from voting. Which it has. For absolutely no gain. And many Republicans are on record as stating they are passing these laws to do just that. Voter ID laws do not prevent vote fraud.

            Which is not to say that I regard honest experts as valueless , far from it, merely that they – or at least some of those who puff them – can sometimes tend to overconfidence. Consequently sticking with “may” seems wiser than leaping to “will.”

            Experts rely on data and present conclusions based on that data. You rely on your feelz and present conclusions based on your feelz. Experts are more reliable than your feelz any day of the week.

            1. No one said voter ID laws would “crush” turnout. What was said that there was evidence that it would prevent many Americans from voting. Which it has.

              Incorrect.

            2. “No one said voter ID laws would “crush” turnout. What was said that there was evidence that it would prevent many Americans from voting. Which it has.”

              The exact same claim was made in the District Court when the Texas voter ID law was under attack. Yet the challengers of that law were unable to identify ANYONE, not one single voter, who would be prevented from voting by a voter ID requirement. So, regexp, I assume that you can provide concrete examples, the names and locations of specific potential legitimate voters (deceased voters who have voted by proxy through Democratic precinct workers in Chicago don’t count) who would be prevented from voting by Voter ID laws. We’re all waiting.

            3. Even if it doesn’t prevent a single instance of fraud, making it slightly harder for Democrat Party groups to vote is a good thing in and of itself.

              1. Sorry you hate being in a republic.

                You say you’re a lawyer? You don’t seem very into rule of law…

                1. In a true republic, non-producers would not be allowed to participate. There’s no reason Shaniqua should be allowed to vote herself an Obamaphone.

                  1. a) False.
                    b) Racist and false
                    c) Anti-republicanism & anti-democracy
                    d) You’re an idiot

          2. So you are claiming that Gorsuch, whose opinions you were supporting, is not partisan(!!!) and therefore is more likely to be correct, despite having probably minimal, at best, understanding of the issues, than the professionals at the Census Bureau whom you implicitly accuse, baselessly, of dishonesty.

            1. Surely you are not suggesting that there are Obama judges and Trump judges 🙂

              But seriously, neither Judges nor Executive branch officers (nor for that matter business executives) are supposed to take the advice of experts as gospel. They weigh up expert advice, and where available, the advice of naysayers, their own long experience of the fallibilty of experts and predictions of the future, and make their own judgement.

              1. “…are supposed to take the advice of experts as gospel.”

                It’s not advice, it’s just data.

                1. Nope. Predictions are soothsaying. Soothsaying is not data.

                  When you’ve got some actual data, you can then try to compare it with the soothsaying. Then you may be in a position to pronouce the soothsaying good soothsaying or bad soothsaying.

                  Which is one reason why it’s not really very,er, “problematic”, to risk the census being mildly inaccurate this time round. For the error, if one actually arises, can be corrected next time, with the benefit of real data rather than just prognostications. All the more reason to leave the problem for the folk who are charged with its resolution – Congress – and for the courts to butt out.

                  I accept that 2030 is way too far in the future for people obsessed with the current political horse race to care about, and, fwiw, I am entirely convinced that Democrats and liberals sincerely believe that asking about citizenship carries a high risk of affecting the Enumeration to the disadvantage of the Ds. Or else they wouldn’t be making such a fuss.

                  1. “All the more reason to leave the problem for the folk who are charged with its resolution – Congress – and for the courts to butt out.”

                    The very thing at issue is that Congress did decide, and did delegate some authority to the Executive Branch to handle the census, but that the Executive Branch is not obeying Congress’s orders. I happen to agree as a general proposition that Congress should have direct confrontations with the President, rather than asking the Court to intervene, but in this case it specifically enacted a resolution scheme that included going to the courts. That seems indirect and lazy to me, but Congress is entitled to be indirect and lazy.

                    1. Perfectly reasonable point. If the courts decide it properly on normal statutory grounds that’s fine by me. And frankly if the government has messed up the procedure set out by Congress, I’m confident that at least Thomas and Gorsuch will be happy to say so

                    2. And frankly if the government has messed up the procedure set out by Congress, I’m confident that at least Thomas and Gorsuch will be happy to say so

                      I’ll take that bet, especially since they plainly did mess up the procedure.

                    3. I can’t say I’ve spent very long in the weeds on this one, but I did note that the government’s brief argues that the APA doesn’t apply at all, and that the Census Act’s requirements for reports to Congress are non justiciable. Hence there seems to be some argument about whether there are in fact any procedures to mess up – before you even get to whether the procedures alleged by the plaintiffs to exist have in fact been messed up.

                      No doubt we’ll all we able to read the judgement and find out.

                    4. Lee,

                      “Hence there seems to be some argument about whether there are in fact any procedures to mess up…”

                      That’s true if the government prevails on its APA argument, but not true on the Census Act argument. The government isn’t saying that they followed the Census Act (they can’t). They’re just saying they aren’t required to follow those procedures, even if they were set forth by the Legislature.

                    5. NTOJ : The government isn’t saying that they followed the Census Act (they can’t)

                      Actually it is saying precisely that – see pages 47-48 of the government’s brief for their argument that even if it were justiciable, they complied with section 6(c) , and pages 52-53 re section 141(f).

                    6. Lee,

                      I stand corrected. I don’t find paragraph b. at p. 52 to be particularly persuasive, but acknowledge that they are in fact arguing compliance.

                    7. I’m inclined to agree with you that page 52’s arguments are not absolutely the most compelling stuff I’ve ever read.

                      One thing does slightly puzzle me, and that is that :

                      1. since the government is entitled to send in a 141(f)(3) report at any time before the census date, and
                      2. since its argument that [its s141(f)(2) question report serves as a perfectly good s141(f)(3) report updating the s141(f)(1) report] did not find favor with the district court

                      why hasn’t it sent in a separate, for the avoidance of doubt, s141(f)(3) report after reading the district court ruling ? Wouldn’t that moot the issue, if that is the point on which the case is eventually found to hang ?

                  2. I am entirely convinced that Democrats and liberals sincerely believe that asking about citizenship carries a high risk of affecting the Enumeration to the disadvantage of the Ds. Or else they wouldn’t be making such a fuss.

                    Thanks. I definitely do believe that, and I definitely believe that Ross believes that, and wants to add the question for that purpose. The reason I believe it, though, is that that’s what knowledgeable people, with the chops to understand it, say, repeatedly.

                    Now, I can accept the idea that you are dubious, because experts get things wrong sometimes, etc. That’s no sin. But there are two responses to that.

                    One is that if they are wrong they might be wrong in the opposite direction. Maybe they are underestimating the effect rather than overstating it.

                    Second, why take a chance? The data they want is available from other sources, so why risk polluting the enumeration? And if you want the question on the census you have the same ten years you mention to go through the proper procedures, including testing to see how the response rate is affected.

                    Don’t you want the House to be accurately apportioned? If so, don’t make a change that will interfere with that. Who makes major changes to an important system without some testing?

                    Of course this assumes that the Commerce Department wants accuracy. They don’t, and that is supported by the record. Experts may be wrong sometimes, but they are more likely to be right than Wilbur Ross is.

                    By the way, to raise another issue, how do you feel about the SG of the US, Francisco, pushing, in front of SCOTUS, the blatant and well-documented lie that DOJ wants this to help enforce the Voting Rights Act? Does that trouble you at all?

                  3. Lee,

                    There is substantial data fro other surveys to back up the predictions.

              2. If they have long experience in an area that’s one thing.

                But those who say, well the experts are always wrong and I have great instincts are most often badly mistaken.

                To form a reasoned opinion is one thing. To just claim you are right in the teeth of the evidence is foolish.

                “The race is not always to the swift, nor the battle to the strong, but that’s the way to bet.”

                1. “The race is not always to the swift, nor the battle to the strong, but that’s the way to bet.”

                  If we’re betting, we’re still in “may”-land not ‘will”-land.

                  And while we’re on the subject, no, the way to bet is to follow expected pay-off, not the highest probability of making a winning bet. Sometimes David beats Goliath, so watch the odds.

                  1. You are right about the probability issue, of course, but I think the advice was intended to apply more broadly, to areas not readily quantifiable.

                    It’s a probable twelve to seven that Damon Runyon understood odds pretty well.

          3. The citizenship question was asked in 1950, was there a large measure of noncompliance then, and a sudden boom in answering after it was dropped? Let’s get at least somewhat empirical here.

            1. I don’t know, but I think that would be more relevant if the demographics of the country were the same in 1950 as today, but they aren’t.

              1. So, you’re admitting that the issue of people maybe not answering due to the citizenship question, leading to an undercount, is conjecture?

        3. “Census Bureau’s own statisticians?”

          The Executive Power is not vested in Census Bureau statisticians.

          The President (acting thru his close associate and delegate, a principal officer Secretary of Commerce) is free to disregard the opinions of mere employees.

          1. The Executive Power is not vested in Census Bureau statisticians.

            The President (acting thru his close associate and delegate, a principal officer Secretary of Commerce) is free to disregard the opinions of mere employees.

            This case isn’t a constitutional one; it’s an ad law one. The APA does not permit government agencies to act arbitrarily and capriciously, which disregarding expert views on a whim would constitute.

            1. Its both.

              SCOTUSblog:

              Posted Fri, March 15th, 2019 5:34 pm
              “Justices add constitutional question to citizenship case
              On April 23, the Supreme Court will hear oral argument in the challenge to the decision to reinstate a question about citizenship on the 2020 census. The justices had originally granted review to decide whether that decision violated federal laws governing administrative agencies, but today the justices announced that they will also consider whether the decision violates the Constitution.”

            2. The APA does not permit government agencies to act arbitrarily and capriciously, which disregarding expert views on a whim would constitute.

              However, before going on to argue that Ross’s actions were not arbitrary or capricious, the government’s brief argues that the APA doesn’t apply to this matter at all, on the basis that it is one “committed to agency discretion by law.”

          2. Bob,

            I urge you to read the brief of the American Statistical Association on this case. It will help you understand just how ridiculous adding this in this manner is.

            You are defending an utterly dishonest by an utterly dishonest man.

            1. The Constitution does not incorporate the beliefs of the American Statistical Association.

              You just want some extra Dem congress people from California in any event. So you can get off your high horse.

                1. Yes, it might negatively affect my side too.

            2. You mean the brief from the American Statistical Association that included no actual statistics at all?

              Okay, briefs are usually written by lawyers for lawyers (or for judges who almost all used to be lawyers). But still. As someone who actually knows how to read a statistical analysis, that ain’t it. They raise some good legal points but their alleged approach to statistics is almost all appeals to authority and/or appeals to emotion with essentially no discussions of measured data and statistical significance.

              Regardless of your opinion in this debate, that’s not a brief that deserves very much weight.

              1. Rossami,

                I don’t understand your jab about “no statistics.” they were not trying to present data, but, among other things, an explanation of techniques needed to assure the accuracy of a survey.

                What the brief included was a description of the correct way to add an item. That includes pretesting to see how the item affects response rates and so on. That part was a technical explanation of the right way to do things.

                The Census Bureau didn’t do any of that, despite the advice of the staff. They just want to add the question.

                Do Republicans just hate expertise?

                1. What that brief described in highly qualitative terms was a way to add an item. By no means is their protocol the only way allowed. And more to the point, one would think that a protocol proposed by the American Statistical Association would actually make some reference to valid statistical techniques. Maybe even do some testing to show that the technique actually used was statistically unsound. They did none of those. They waffled with another legal brief instead of playing to their strengths.

                  I don’t know about Republicans but I most certainly do not hate expertise – I value it highly. I just didn’t see any of it in that particular document.

                  1. OK, Rossami.

                    There are other valid ways to add an item.

                    Tell me, is just throwing it on the form with no testing, no analysis, nothing, a valid way to do it, especially when there is strong reason to believe it will have an effect on response rate?

                    If you value expertise, how can you defend what Ross wants to do?

                    1. Why do you keep assuming that I’m defending what Ross wants to do? I have expressed no opinion on that matter.

                      What I said and all that I’ve said is that the brief by the ASA was a poor brief. By implication, I’ve also said that the brief does not support the claim you originally made. That doesn’t mean you can’t support it through some other source(s) but the ASA brief doesn’t help you.

            3. Gee, that’s a dumb comment. Are you afraid you might learn something if you read it? A typical Republican anti-science stand.

              The difference between us, Bob, is that I don’t want “extra” representatives, I want the right number. It’s Ross, and apparently you as well, who want to tilt things.

              1. “A typical Republican anti-science stand. ”

                Jesus Christ. As if Dems aren’t anti-science when being anti-science benefits them. The friggin’ Green New Deal defies science, but that’s a discussion for a different forum.

                A question – how would you suggest that the government be prepared to enforce Clause 3 described above if they don’t have the information required by Clause 2 above?

                1. An answer:

                  The data is available from other sources, such as the ACS or various administrative sources. That data will be at least as accurate as the census on the issue, and getting it won’t distort the census.

                  1. The government’s brief disagrees – see pages 31 to 34.

                    1. Given Ross’ behavior in this matter, I don’t think the government’s brief is worth a plugged nickel.

                      IOW, there has been a very high level of dishonesty from the government on this issue – it’s a matter of record – so the government can put its brief where the sun don’t shine.

        4. “But is he cleverer, more knowledgeable about these issues, than the Census Bureau’s own statisticians?”

          Well, they’re the people who said “no, we don’t have a model, but, trust us, we’ll build one that will do an even better job than counting people, to answer any question you want answers!”

          So they’re a bunch of unprofessional idiots. No reason to believe they’re even remotely smarter than Gorsuch.

  2. Somewhat OT. I’ve never liked the census. I throw their forms away.

    You could eliminate the original justification for the census by having each legislator proxy all the votes in their last election instead of assigning each a single vote as if they represented equal numbers.

    You could make legislatures much more interesting by taking the top three election winners and have each proxy just their own votes. For the remainder, add a “volunteer” ballot and pick one at random to proxy either all remaining votes or all volunteers.

    You could also let anyone who owns a parcel on a district boundary switch to a neighboring district which had fewer votes last election, if you really wanted to equalize population.

    1. You could do all those things, and many more, under a different Constitution.

      But there’s something said for requiring the government to obey the Constitution we already have, until it’s amended or replaced.

      1. No shit, SherlockOliver.

  3. A quibble: You say, “Indeed, the census is now responsible for counting the “whole number of persons,” that is the “actual enumeration.””

    But the truth is, the census is responsible for counting the “whole number of persons, excluding Indians not taxed.

    Don’t read that phrase out of the amendment, it’s critical: The count was NOT, per the 14th amendment, to include everybody who happened to be present in the US when the census occurred. There was, clearly, a category of people to be excluded.

    Just as in examining the constitutionality of having an air force, you have to consider exactly what the Constitution meant by armies and navies, (To figure out which it is!) you can’t seriously interpret the 14th amendment without giving serious consideration to who the modern “indians not taxed” might be.

    Maybe, just maybe, they’re illegal aliens?

    1. Since they are neither Indians nor untaxed that makes about as much sense as calling asylum seekers “invaders.”

      Besides, the concerns about the citizenship question extend to aliens legally present.

      1. “Besides, the concerns about the citizenship question extend to aliens legally present.”

        BS. Legal resident aliens have absolutely no reason to fear answering such a question. It has no negative consequences for them, and Green card holders are legally obligated to keep the government apprised of where they reside anyway.

        No, this is entirely about illegal aliens, and it’s unworthy of you to pretend otherwise.

        1. Unworthy of me?

          In the present climate I think legally resident Hispanic aliens have some reason to fear the citizenship question. But even if you are right, and they don’t, some will.

          And even if none do, so what? That doesn’t make illegal aliens “Indians not taxed.” That one goes in the Bellmore Hall of Fame.

    2. I don’t think so.

      I think the object of the exercise is to count citizens, and Indians not taxed are the obvious and permanent lump of people who are living in the State but are not citizens. Other transient non citizens are, at the time of the adoption of the Constitution, and the 14th Amendment, are too few to bother with. So making a count of persons is fine – goog enough for government work – so long as you leave out the non citizen Indians.

      If you were a progressive jurist you could say that the intent is to count citizens, things have moved on, persons is no longer a good enough approximation to citizens, we should read person as citizen.

      But it isn’t written that way. It says person and the way it’s worded shows that Indians not taxed (non citizens) are understood to be within the meaning of person – hence the need to explicitly exclude them.

      You’re real argument is with Wong Kim Ark

      1. Then why doesn’t it say “citizens?” Since Congress is given authority to set rules for naturalization the founders clearly anticipated that there would be non-citizens living in the country.

        Reading the business about Indians as meaning non-citizens, or illegal aliens, is a bizarre stretch, and that’s being generous.

        1. Then why doesn’t it say “citizens?” Since Congress is given authority to set rules for naturalization the founders clearly anticipated that there would be non-citizens living in the country.

          I’m sorry if i was unclear. Because it’s easier to count “persons” and if you don’t think there’s going to be a lot of non citizen persons, go for the most practical option. Just for the avoidance of doubt I’m not saying a la freestyle constructionist that intent trumps text ans so we should read person as citizen. I’m saying the instruction was to count persons because that was expected to give a good enough count of citizens. And that’s precisely why Indians not taxed are specifically mentioned, as they’re a numerous class of non citizen person who are readily identifiable.

          See https://www.legalgenealogist.com/2015/03/13/9643/
          for a discussion of the non citizenship of Indians not taxed.

      2. Other transient non citizens are, at the time of the adoption of the Constitution, and the 14th Amendment, are too few to bother with.

        Wait a minute, The 14th Amendment, in 1869? What were the know-nothings going on about in the 1850s? What about the Irish influx from the mid-1840s onward?

        1. The Irish were not transient non citizens. They became permanent naturalised citizens. Prior to the Civil War, citizenship was, as I understand it, a State matter, so the analysing the details of each State’s citizenship laws would be a considerable task.

          But since Massachussets apparently restricted the vote for naturalised citizens until they had been citizens for 21 years* it looks like the anti-Irish folk were not doing their thing by restricting naturalisation, but by deferring voting rights. But feel free to correct me.

          * which, btw, seems to me to a perfectly reasonable general solution to the immigration wars, and perfectly fair to boot. If the Ds were not desperate to acquire more voters for their coaliton, and the Rs were not desperate-ish to prevent this, immigration policy debates could be conducted on a rational basis with a view to enhancing the general welfare. Delaying the vote for naturalised citizens would dilute the importance of the votes question to almost nothing. But obviously it’s not going to happen.

    3. It is my understanding that at the current time, the category of “Indians not taxed” is an empty set.

      1. Indeed. If the link I added above is correct, it has been an empty set since 1924.

        1. Just as the printing press, defined in early 1800’s terms, is basically an empty set today.

          It is not unreasonable to update “indians not taxed” to the modern counterpart.

          Certainly, it’s LESS unreasonable than much that gets done in the way of constitutional interpretation.

          In any event, it does establish that the intent was not to count ALL persons, it never was.

          1. It is not unreasonable to update “indians not taxed” to the modern counterpart.

            Actually, it’s idiotic.

            1. I agree. It is straight out of Living Constitutionalism Central Casting.
              Just because it might be convenient, or more in keeping with the intent of those who wrote “person” to read person as citizen, that’s no reason to construe person as meaning citizen. It doesn’t, and it never did.

              1. It’s straight out of living constitutionalism strawman central casting.

                I know you lot think non-originalists are all outcome oriented tools. But that doesn’t make it any less hilarious when you try.

    4. What’s the originalist argument that illegal immigrants were considered “Indians not taxed”?

      1. Its thin, but plausible to include a significant portion (but not all) of illegal immigrants in the set.

        Indian refers to people descended from those who occupied the Americas in the pre-Columbian era. Many illegal immigrants descend from that set.

        “Not taxed”, like “subject to the jurisdiction thereof” in the 14th amendment doesn’t mean “pays no taxes ever” (just like subject to the jurisdiction doesn’t mean we didn’t used to arrest Indians if they committed murder) it specifically meant that they were not subject to the capitation/apportionment tax referred to in Article I, Section 9. In view of the 16th Amendment this should be inferred to also incorporate income tax.

        Combining this you could consider illegal immigrants descended from North/South American natives whom do not pay income tax to be intended to be excluded from counting.

        1. Take your meds.

        2. I wouldn’t even call this thin. My understanding is that Indian referred to a specific set of Indians, namely tribal peoples, and excluded (even at the time of ratification) naturalized Indians, or those Indians who had abandoned reservations. But even if your argument carried water, it would still only apply, at most, to illegal immigrants who were not living under tribal law, which is virtually all of them.

          I mean, what’s the originalist argument that “Indians not taxed” was limited to capitation taxes? Did Indians pay tariffs? (Sincere question.) Did they pay Art. I Sec. 9 slavery taxes? Why are you limiting “Indians not taxed” to Art. I Sec. 9 capitation/direct taxes?

  4. Here we go again, dreaming up fantastical arguments to support illegal, unconstitutional things Trump wants to do.

    If the Supreme Court buys the Administration’s arguments in this case it will forfeit whatever legitimacy it has, and establish that, for the conservative majority it really is just a vehicle for their preferred policies, and for entrenching Republicans through seriously anti-democratic means.

    Roberts can talk all he wants about how there are no “Obama judges,” etc. but any Justice who backs this question will have himself a Trump Justice.

    1. If the cost of the Supreme court being seen as legitimate by the left is always ruling in their favor, (And, regrettably, it is.) then it’s not a price worth paying.

      1. Not always, Brett. But when it’s clearcut, it is.

        I’ve disagreed with some previous decisions without questioning the legitimacy, but this would be a bridge too far. Ross’ lies and pretexts for this are ridiculous. Normal procedures weren’t followed. It will, plainly, make the census less accurate.

        The conservatives on the court have consistently called for less deference to agencies. Yet here they are. If it entrenches Republicans it’s fine with them.

        1. In your opinion.

          There is no factual basis to ground that question.

          1. I’m not sure what you are referring to, but if it’s the legitimacy matter then, yes, it’s my opinion.

            Are there facts that suggest the court likes to help Republican candidates? I’d say so.

        2. “Normal procedures weren’t followed”

          Not sure where that was in the Constitution or Census act, especially defining what “normal procedures” are.

          But it not following “normal procedures” is disqualifying, Michael Flynn should be a free man.

          1. Look up the Census Act and the APA.

            Among other things, the Census Act prohibits the Census from asking any question where the data sought is readily obtainable by other means, which it is in this case.

            The APA requires notification to Congress of new questions, and a generally reasonable approach to adding them, not an arbitrary or capricious decision, or an “abuse of discretion.”

            Look at the history of this and you will see that it is the very definition of arbitrary and capricious.

    2. Exactly where in the Constitution does it prohibit the census from asking about citizenship? And why was that invisible constitutional provision ignored from 1880 to 1950 when the census asked about citizenship? And please, while you are at it, explain exactly why this is an “illegal, unconstitutional thing” that Trump wants to do when Congress has explicitly delegated to the Executive Branch, of which Trump is still the head (even though you don’t like it), the broad discretion to run the census?

      As to your (moronic) claim about the Supreme Court forfeiting any legitimacy, exactly the same argument could be made about the decisions in Roe v. Wade, Wickard v. Filburn, Korematsu v. United States, Griswold v. Connecticut, and Obergefell, to name just a few. Or does the Supreme Court only forfeit its legitimacy when it issues an opinion that YOU don’t like?

      1. “Wickard v. Filburn…”

        Pretty safe to say that the Supreme Court’s legitimacy is not in much question where unanimous decisions are concerned. Doesn’t make the decision right, but this was an odd example to include re: legitimacy.

      2. It doesn’t prohibit it. What it does do is call for an enumeration of all persons. All (except those Indians Brett is trying to redefine).

        Taking steps to deliberately undermine the count which, face facts, is exactly the intention here, seems to me to violate the Constitutional directive. It certainly violates Ross’ oath.

        As to your (moronic) claim about the Supreme Court forfeiting any legitimacy, exactly the same argument could be made about the decisions in Roe v. Wade, Wickard v. Filburn, Korematsu v. United States, Griswold v. Connecticut, and Obergefell, to name just a few. Or does the Supreme Court only forfeit its legitimacy when it issues an opinion that YOU don’t like?

        Claim whatever you like about any case, you arrogant asshole. I think the legitimacy question comes into play because this decision would ignore the law for the result of entrenching the conservatives’ preferred party. That’s different, ISTM, than reaching decisions on policy matters. Feel free to differ.

        1. Yeah, I’M the arrogant asshole here! Oh, God, bernard, you are doing your very best to replace the Rev. Kirkland as the resident comic relief!

          1. Dan,

            You call everyone who disagrees with you a moron or worse, while loudly proclaiming your own genius and brilliance in all fields of inquiry.

            I’d say “arrogant asshole” is pretty accurate for someone who does that.

            1. Again – Pot, meet Kettle.

        2. “Taking steps to deliberately undermine the count which, face facts, is exactly the intention here, seems to me to violate the Constitutional directive. It certainly violates Ross’ oath.”

          You know the intentions of exactly no one other than yourself.

          EV makes an interesting and clearly non-frivolous argument that 15A actually mandates that the Census include a citizenship question. If this is correct, Ross’s intentions are irrelevant.

          1. Matthew,

            Ross’ intentions are plain from his behavior.

            If he didn’t want to undermine the Census he wouldn’t be doing this. That’s not just my opinion. It’s the opinion of his own bureau, and of everyone else who, unlike Gorsuch and Alito, actually understands how to construct surveys.

            And the argument in the OP, advanced by Josh Blackman, not EV, is not particularly interesting other than as a desperate attempt to justify something. The fact is that there are other means available to determine the number of citizens, they are generally more accurate than including a question on the Census, and do not have a negative impact on the census’ accuracy.

            That the government needs citizenship information does not imply that it has to ask the question on the census. That makes no sense.

          2. You know the intentions of exactly no one other than yourself

            Did…you just kill mens rea?

        3. >>I think the legitimacy question comes into play because this decision would ignore the law for the result of entrenching the conservatives’ preferred party.

          Hobgoblin of little minds and all, I know, but it seems like the basic reason we’re at the point where the difference between counting citizens and residents is so material as to affect the distribution of state representatives is because of decades of ignoring the law for the result of entrenching the liberals’ preferred party.

          1. Both party are pro-immigration, chief.

            Not every non-citizen is an illegal.

    3. I can sympathize with your sentiment, but as a matter of law, this seems open-and-shut. They ask about citizenship in the ACS questionnaire, and used to ask it on the main census. Clearly nothing in the Constitution prohibits asking the question. If one quibbles over the process (insufficient notification, etc) then perhaps the Court can kick the question back to the starting position; but calling this procedural gaff de minimis would hardly indict the legitimacy of the Court.
      What’s happening here is that some disagree with the wisdom of the policy. But our elected representatives can legally make bad policy decisions. A bad decision isn’t the same as an illegal action. This is ultimately the Legislature’s job to fix (not the Court’s) but if they don’t have the votes to do it, “them’s the breaks”. Now one must recognize that not everyone agrees with your own policy recommendations. And that’s okay. Life goes on.

      1. What’s happening here is that some disagree with the wisdom of the policy. But our elected representatives can legally make bad policy decisions.

        No. What’s happening here is a deliberate attempt to undermine democracy. Nothing else.

        That the question was asked before is irrelevant, a red herring. It was asked when there was no reason to think it had a big impact on the accuracy of the count. Now there are very solid reasons to think so, so don’t ask it.

        As for ACS, or the long form, they are not part of a Constitutionally mandated count, but are separate efforts to gather statistical data, hence not relevant to this argument.

        1. Asking about citizenship is undermining democracy?

          Someone tell the UN.

        2. A bit hyperbolic, and closed to alternate (simpler) explanations. Your idea of undermining democracy is a very subjective one, relies on a lot of assumptions that are debatable, and even if correct (which I am highly skeptical of), who’s to say “undermining democracy” in this or myriad other procedural rules of a bureaucracy, is illegal or even inappropriate. Do you mean undermining direct democracy? We have never claimed to be that.

          1. It’s working a shift in the rules of our republic for blatantly partisan reasons.
            That delegitimizes the republic in the eyes of both sides.

            1. Can you expand on how adding a question to the census is shifting the “rules of our republic”? And please bear with me here —
              The data may have impact to funding levels and representation, which is evidently the concern that the plaintiffs are motivated by. If new data into the same calculations gives us new results, nobody would be surprised. But there’s a bit of daylight between the input data changing based on new questions, themselves not alien to the census in any way, and changing the calculations themselves, which seems most akin to the idea of “the rules of the republic” you’re referencing. Interested in knowing if I’m off target there.
              We should acknowledge the real possibility is that the data won’t actually change in any material way. Per the plaintiffs, the ACS citizenship question has been necessary to form the basis for the predictive models for the administrative record, so it’s “not invalid” to ask it there. New administrative record models could use the new census data AND factor in any perceived error margin from lowered response rates and still be highly authoritative.
              So there’s a whole different argument coming about how the results of the census get applied – and I would suggest that’s actually where “harm” can make a more substantive appearance than it does in today’s case, which seems a bit speculative in the existing complaint.
              In the governments brief, they say in that using the administrative record to the “maximum extent possible” is actually what they’re doing – that using the predictive models or real census data is a false dichotomy – an “embrace the magic of ‘and’ and reject the tyranny of ‘or'” kind of argument. That this data will strengthen the predictive models, essentially. So to my hearing, the government is committing to some sort of reconciliation between the admin record and the census data, and that will resurface in 2022, either to their advantage or detriment when their actions inevitably end up in court again. We’ll see.

          2. I mean undermining the apportionment of representatives in Congress to favor one party.

            I wish you guys would stop with these games. Look, that is very likely to be the effect. You can’t just shrug your shoulders and say the Census staff might be wrong, so let’s ignore them. (And if they are they might be low in their estimate of the effect as well as high.) Your shoulder shrug is not a refutation. Has there been any serious disagreement with the staff’s analysis, other than that? Not that I’m aware of.

            So you don’t like what they say, or at least want to ignore it to serve your illegitimate, partisan purposes. That’s what this amounts to.

            1. I tend to find a shoulder-shrugging analysis of any issue to be the least partisan way of approaching questions of law, invoking the great YB’s maxim of “wherever you go, there you are”.
              The “parade of horribles” is a device used by all sides, and I’ve learned to be a bit more measured in my reception of it in any case.
              I think what the CD (Commerce D.) is saying is, we want to ask this question. The CB (Census B.) says, we think it will reduce response rates for a couple reasons, and we can build a model that will exceed the accuracy of any basic data received, but we don’t know to what extent it will be better. The CD replies that a) the model will be better if it incorporates this raw data, and b) let’s see what happens, as it’s our prerogative.
              The plaintiffs say that this deliberation was insufficient to make the change, that it violates the APA, which calls for relying on the administrative record to the maximum extent possible rather than the census. It’s basically a procedural complaint and a claim that since they have data from a predictive model available to them, burdening the census with a new question is illegal.
              It’s not hard to see how the Court, including RGB, would find this a bit shaky. The oral arguments are fascinating, btw.
              Certainly there are partisan issues at play here from both sides, but let’s not willfully blind ourselves the partisan interests of the either side, including the plaintiffs, which I suggest you may be at risk of doing.
              If we review this issue purely as a matter of sober law, I think we’re on the right track. Does the CD have the power to alter the census? Can they ask any question for which there are predictive models for (including age, sex, dog ownership)? Does every modification end up in Court? What’s the principle at play here?

              1. Certainly there are partisan issues at play here from both sides, but let’s not willfully blind ourselves the partisan interests of the either side, including the plaintiffs, which I suggest you may be at risk of doing.

                Yes. The plaintiffs have a “partisan interest.” But why is that interest worthy of criticism? All it amounts to is wanting the Census to be accurate. And what exactly is the interest of the Commerce Dept? They want it inaccurate. So there is no reason to look for a balance of partisan interests. Bluntly, one interest is legitimate and the other isn’t. Or maybe somebody can tell me what the legitimate partisan interest of Commerce in suppressing responses is.

                What’s the principle at play here?

                The principle is that you want the enumeration to be as accurate as possible, so you need excellent reasons to do anything that would reduce the accuracy. And you don’t have those reasons here.

                There is little or no need to put the question on the short form, because the results will not be accurate. IOW, the idea that you can combine the Census results with other records to improve accuracy is dubious, because you may be adding noise.

                The next principle is that in deciding something like this it makes sense to rely on those with expertise in the area, sneers by some commenters here notwithstanding, and those experts say it’s a mistake because of the effect on response rates, backed up by data from other surveys.

                The next principle is that only a fool or a knave makes a major change to an important system, of any kind, without doing some testing beforehand.

                The next (legal) principle is that, in order to head off this kind of nonsense, the APA prohibits arbitrary and capricious decisions, or those which abuse discretion, and the Census Act imposes requirements like notifying Congress of questions to be added well in advance, and not adding anything where the data can be obtained in other ways. Commerce violated both of those statutes. Is that enough principle?

      2. If one quibbles over the process (insufficient notification, etc) then perhaps the Court can kick the question back to the starting position; but calling this procedural gaff de minimis would hardly indict the legitimacy of the Court.

        But it’s not de minimis. The point of the process is to make a decision based on sensible considerations, supported by evidence and expertise. Here the decision is plainly unfounded in anything other than the desire to help the Republican Party. I’m not making that up. The evidence is there in Ross’ bumbling and lying.

        If that’s not “arbitrary, capricious, an abuse of discretion” then nothing is.

        1. We’ll find out soon enough whether it is or not. Fortunately it’s not up to you or I.

          1. No. We know it is. What we are going to find out is how many Justices are willing to declare themselves RNC operatives.

      3. “This is ultimately the Legislature’s job to fix…”

        …which, arguably, it did when it enacted the administrative laws that you are poo-pooing.

        1. Yes. Both the Census Act and the APA specify rules for doing this sort of thing.

          Ross’ acts violate them.

          1. Please point out where this violates the Census act.

            1. With the caveat that these aren’t arguments that I’ve made, the argument is that the Executive arbitrarily and capriciously did not follow the Census Act, specifically the parts that say it must “acquire and use” data it allegedly ignored rather than its own direct inquiries (13 USC 6(c)), or the part that requires timely submission of new questions at least two years before the census date (13 USC 141(f)(1)-(2)).

              1. In addition, the Census Act requires that, when conducting surveys, the Census Bureau use sampling methods whenever feasible, which they certainly are here.

                I notice you didn’t ask about violations of the APA, of which there were several.

                From the District Court’s decision:

                the Court concludes on the merits that Secretary Ross violated the APA in multiple independent ways. Most blatantly, Secretary Ross ignored, and violated, a statute that requires him, in circumstances like those here, to collect data through the acquisition and use of “administrative records” instead of through “direct inquiries” on a survey such as the census. Additionally, Secretary Ross’s decision to add a citizenship question was “arbitrary and capricious” on its own terms: He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations.

                1. District Court : Most blatantly, Secretary Ross ignored, and violated, a statute that requires him, in circumstances like those here, to collect data through the acquisition and use of “administrative records” instead of through “direct inquiries” on a survey such as the census.

                  And most blatantly, the District Court’s summary leaves out half the relevant section :

                  “To the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information available from [administrative records] instead of conducting direct inquiries.”

                  Thus the Secretary has to balance the maximising of the use of the administrative records against “the kind, timeliness, quality and scope of the statistics required.”

        2. Contra proferentem 😉

        3. I suppose I would also add that RGB pointed out during oral argument that Congress has “done nothing” even with ample notification, and asked whether the Court should be stepping in. If Justice Ginsburg is asking the plaintiffs why she should care, they may have a problem on their hands. Just sayin’.

          1. Interesting point. if the Justices were, er, incined to let politics seep into their view of the law (which of course they are not; but if if if) it seems to me rather unlikely that the four liberals would want to shoot this down on the basis that the government had failed to leap through the necessary administrative hoops with double salchow, while crossing all the “t”s and dotting all the “i”s en route. For that would set a very nasty precedent for the administrative state, not merely prospectively, but retrospectively. Imagine all the fun conservative lawyers might have going back and unpicking anything that hadn’t been done absolutely “by the book.”

            Gorsuch however is just the sort of fellow who might just do that. So if the plaintiffs win, I suspect it’ll be a split decision, with the liberals finding for the plaintiffs on some basis other that t crossing, with a conservative or two joining the decision from a t crossing point of view. Which fortunately for the liberals, won’t set a precedent.

            Should be fun, but probably won’t be. I expect Roberts will be trying desperately to kick it into the long grass. Lack of standing maybe.

            1. It’s a lot more than “t-crossing,” Lee.

              And your vies of the liberal Justices is interesting. If they support the plaintiffs they are nitpickers, whereas if they support the defendants it is only to protect the administrative state.

              I’d call that truly Bellmore-esque.

              1. Well, I will concede that I think the four liberals vote the party line consistently – with the exception that if they’re going to lose anyway, the smarter ones (Kagan and Breyer) are sometimes willing to trade their votes for a narrower and less damaging defeat. Which Roberts is virtually always willing to concede. To be fair to the liberals however, their interpretive philosophies are much more consistent with finding the answer they like than the philosophies of the conservatives, and so though you can criticse the liberals for making it up as they go along, you can hardly complain that they promised not to.

                On the conservative side, I think only Alito is a party line guy. But mostly this is because he lacks imagination (don’t get me wrong – a lack of imagination is an admirable quality in a judge.) Roberts and, though it’s early to tell I think also Kavanaugh, are centre-right politicians, perfectly capable of coming up with a coherent legal opinion, but clever enough to sophistrise up an argument for the line they want. Which is as often to assuage liberal hurt as it is to impose conservative doctrine. But they’re politicians not real judges.

                Thomas and Gorsuch are however real judges. No doubt they have their prejudices like everybody else. But for one of them to side with the four liberals on a t crossing point would not surprise me at all.

                As for whether it’s t crossing or not, bits are and bits aren’t (hence the opportunity for the liberals to find for the plaintiffs without worrying about uncrossed ts.) The Section 141(f) stuff, for example, is pure t crossing.

                1. I expect the conservatives to pretty much do the same.

                  My own view of this case is that it ought to be a slam dunk for the plaintiffs. It was in the District Court, and if you read the opinion you’ll see why.

                  Notice, if you read it, that the Equal Protection claim failed, in part, because SCOTUS, for some reason, did not let the plaintiffs depose Ross in a timely manner.

                  1. I meant to add: since I see it as a slam-dunk, a decision for Commerce would, in my mind, mean the conservatives see themselves as Republican political operatives, not judges.

                    It would be a disgrace.

                  2. I expect the conservatives to pretty much do the same.

                    Just out of interest, can you name any case with high political significance heard by SCOTUS since, say 2000, in which a liberal Justice has broken ranks – except where there were already 5 non liberal votes for the non liberal conclusion already ?

                    I imagine I could come up with a dozen where it’s gone the other way – ie a liberal win with a conservative* breaking ranks – if I tried. But just off the top of my head there’s Obamacare, the Arizona redistricting, and Dimaya.

                    * obviously I’m not counting cases where Kennedy voted with the libs, because, well, Kennedy.

                2. “Well, I will concede that I think the four liberals vote the party line consistently…”

                  Let’s focus on data. For the 2017-18 term (as an example), you can see how often the justices disagreed with each other, specifically. The two least agreeable? Alito and Sotomayor, they only agreed 51% of the time. Roberts and Kennedy appear to be more bipartisan than Kagan and Gorsuch, who are more bipartisan than Alito and Ginsburg, who are more bipartisan than Sotomayor. But the differences are relatively minor. That’s consistent with what I’ve seen from other terms.

                  1. 🙂

                    Not all cases have a “party line” – in fact most don’t. So overall statistics including arcane cases about patents, interstate water disputes and so on are irrelevant.

                    Sticking with data, I looked at the 2017-18 term, and found only one case with high political stakes where somebody broke to the “wrong” side, to give them a win. Gorsuch “defected” on Dimaya (immigration.) That’s a small sample, so feel free to go back to 2000 as I suggesed to bernard. Remember the rules. Someone has to break decisivelyto the other side, ie to give the other side a win. Doesn’t count if the other side would have won anyway – ie a 7-2 conservative win, including 2 liberals in the majority doesn’t count, because you don’t need to show your true hand when the result’s a foregone conclusion.

                    If you’re struggling, feel free to add on death penalty cases, which don’t have high political significance but where the liberals are pretty entrenched. In 2017-18 Kennedy and Roberts flipped Tharpe to the liberal side. Nothing went the other way.

              2. If they support the plaintiffs they are nitpickers, whereas if they support the defendants it is only to protect the administrative state.

                I realise i have failed to answer this. You misunderstood my comment. If the liberals support the defendants it will be because they do not want to set any nitpicking precedents. If they support the plaintiffs it will be on a non-nitpicking point. I definitely do not expect the liberals to support the plaintiffs on a nitpicking point.

    4. Regardless of whether it’s illegal or not, how is it unconstitutional? I don’t think understand the plaintiffs to be making that claim.

      1. I understand that to be one of a few points. Specifically that Article 1 requires an accounting of the whole number of free persons. Some believe that asking the citizenship question will chill response rates, thus impacting the ability to get the “whole” number, as mandated.

        1. That’s a hail mary argument. EVERY question one asks beyond the number of persons in a given household chills response rates to some degree. If you don’t believe it’s unconstitutional to ask any of the extra questions (about race, age etc..) that are on the census it can’t be true that it’s inherently unconstitutional to ask about citizenship.

          One might stretch really far and try and argue that in this instance somehow the underlying motivation for the question in this instance makes it unconstitutional, e.g., it is unconstitutional to add a question to the census where the primary intent is to skew the count. However, absent a smoking gun that’s a really really hard argument to make.

          1. “If you don’t believe it’s unconstitutional to ask any of the extra questions (about race, age etc..) that are on the census it can’t be true that it’s inherently unconstitutional to ask about citizenship.”

            The constitutional argument strikes me as weak, but this statement is also false. Whether or not it’s unconstitutional has more than nothing to do with the actual effect on response rates. There might be some questions that chill responses more than others.

            It doesn’t really matter, though, since the non-constitutional question is squarely before the Court.

            1. The Constitutional question was before the District Court, and the issue raised was Equal Protection.

              Court concludes that Plaintiffs did not carry their burden of proving that Secretary Ross was motivated by invidious discrimination and thus that he violated the equal protection component of the Due Process Clause. In particular,
              although the Court finds that Secretary Ross’s decision was pretextual, it is unable to find, on the record before it, that the decision was a pretext for impermissible discrimination. To be fair to Plaintiffs, it is impossible to know if they could have carried their burden to prove such discriminatory intent had they been allowed to depose Secretary Ross, as the Court had authorized last September. As defense counsel more or less conceded during closing arguments, a deposition of Secretary Ross would have been the best evidence of the question at the heart of
              the due process inquiry — namely, the true nature of Secretary Ross’s intent in reinstating the citizenship question. But this Court’s order authorizing such a deposition was stayed by the
              Supreme Court pending its further review, see In re Dep’t of Commerce, — S. Ct. —, 2018 WL 5458822 (Nov. 16, 2018); In re Dep’t of Commerce, 139 S. Ct. 16 (2018) (mem.), and Plaintiffs
              made the understandable decision to proceed with trial despite that stay (because, with the clock ticking on census preparations, waiting for a final ruling from the Supreme Court could have cost
              Plaintiffs a meaningful chance to obtain any relief). Be that as it may, it was — and remains — Plaintiffs’ burden to prove discriminatory intent, and the evidence in the existing record does not support a conclusion that they carried that burden.

              We do not know what the vote was to grant the stay that undermined the plaintiffs’ case on this issue, but we do know that Gorsuch and Thomas wanted to block even more discovery.

              Balls and strikes? More like thumbs on the scale.

    5. You seem to be avoiding the topic of the post, that the 14th amendment by its plain text requires having a count of citizens available, presumably via the census.

      It’s one thing to disagree with Ross and the Trump Administration’s motives or reasoning, but it has nothing to do with the issue this post is discussing.

      It seems to speculative inaccuracies in the census caused by voluntary non compliance is a less serious problem than purposely ignoring a constitutional requirement to know how many citizens are in each state in order to enforce a remedy against voter suppression.

      If you care about voter suppression, shouldn’t you care about enabling the constitutionally mandated punishment for voter suppression to be enforced?

      1. So your argument is that we’ve been on-and-off unknowingly ignoring a clear constitutional requirement since the 14th was ratified?

        1. “So your argument is that we’ve been on-and-off unknowingly ignoring a clear constitutional requirement since the 14th was ratified?”

          Citzenship was included in every census from 1820 (48 years BEFORE the ratification of 14A through 1950) it was first removed in 1960. They first added the long form which doesn’t go to every household in 1970 and the citizenship question was re-added, but on the long form. it was removed from the long form in 2010. So technically, Assuming 14A commands the inclusion of the citizenship question, only the last 7 (and all of the last 7) censuses are in violation. So not on and off and not since the ratification of 14A

          FACT CHECK: Has Citizenship Been A Standard Census Question?

      2. It’s unfair to call the non-compliance issue “speculative.” The claim is based on data from other test surveys and is pretty well supported.

        The citizenship data is available from other sources and the Census Act in fact prohibits adding a question if the data sought is thus available. It’s really a slam-dunk.

  5. If ever there were a case for Constitutional liquidation, this is it.

    1. Fortunately, there never is.

    2. It’s not easy to think of a less apt exemplar for the suitability of Constitutional liquidation.

      This hasn’t been litigated before; the details of the Enumeration are explicitly delegated to Congress by the Constitution (which has in turn left most of the details to the Executive) -and Congress retains the power to step in and give further and better particulars if it so chooses); and the Executive practice was “liquidated” in the direction that ol Wilbur likes for roughly twice as long as it’s been “liquidated” the other way.

      1. …what Constitutional question are you tracking? Did you read the OP?

        There has been long reliance on the assumption of a certain interpretation of the 15th. To dig it up and now to look at it again would have much more disruptive effect than value.

        1. Yes I did read the OP, as it happens. The 15th gets a walk on part early on, but then walks straight off again and we are treated to a discussion of the 14th. And one of the questions raised was whether the reference to the “whole number of male citizens” in Section 2 Clause 3 requires us to count citizens in addition to counting persons.

          I don’t think it does, but whether it does or not is certainly not a Constitutional interpretation that has been “liquidated” – it’s never even been considered before.

          If you’re suggesting that all implications of the 14th (or 15th?) must by now be deemed to have been squeezed out by the courts, and so they are now bone dry, with nothing more to tell us about anything, well good – but do spare a moment to mention it to the four liberals on the Court.

  6. If so, it’s a good thing they have ten years.

    Hire this guy, he’s kind of slow, but at least he’s enthusiastic.

    1. I see the Aussies stole my joke:

      https://vimeo.com/176079286

    2. No they don’t have ten years. The next Census is next year, 2020. They’ve got something like 14 months.

  7. “But when the right to vote … is denied … or in any way abridged, except for participation in rebellion, or other crime…”
    There’s got to be more than that. If my state denies me because I didn’t register, can the entire state loose its representation in Congress? That sounds absurd. Either I’m misreading it, or the quoted statement is faulty.

    1. No worries, that part was never enforced, not even during Jim Crow.

    2. Your right to vote is the right to vote if you’ve registered. Hence if you you haven’t registered you have failed to exercise your right to vote, you haven’t been denied it. The same applies if you insist that you will only vote if they open a polling station across the road from your house. If you don’t get your polling station and so you don’t vote, that’s your problem.

      Note, en passant, that the 14th does not require the State to give you a vote for these offices (elsewhere the Constitution insists that you get a vote for federal Congress people.) But the 14th doesn’t require that States hold votes for Presidential Electors or State judges or whatever. It’s just that if they do hold votes for these things, they’ve got to give you one.

    3. Basically, to invoke this clause, the state has to make it illegal for you to vote. Not just fail to make it convenient.

      1. That might be an overstatement, Brett. That clause was sufficient to outlaw poll taxes even though a tax is, at least arguably, also a mere inconvenience (“just work harder”) rather than outright making it illegal for you to vote.

        I could argue that we’re talking about points on a spectrum. At the mild inconvenience end is making you lift your own hand to pull the lever. At the other end is making it fully illegal. In the middle are poll taxes (not allowed), discriminatory practices at polling stations (not allowed), threats and intimidation (not supposed to be allowed), unreasonably short polling opportunities (depends on whose definition of “unreasonable”), making you come to the polling place unless you jump through the state’s hoops to show that you are really unable to come to them (allowed), registering to vote (allowed), attesting to your own identity (which if you include the act of signing the polling register is universally allowed) and so on.

        1. Isn’t the relevant part “on account of race, color, or previous condition of servitude?” This clause presumably only applied to poll taxes to the extent that they were proxies for race/color/previous condition of servitude. Maybe poll taxes would violate some other part of the constitution even in a state with perfect racial economic parity but it wouldn’t be relevant to this clause.

        2. ” That clause was sufficient to outlaw poll taxes ”

          Silly me, I thought the issue in the case of poll taxes was the 24th amendment:

          “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”

          If it weren’t for the 24th amendment, poll taxes would still be constitutional, just as literacy tests are still constitutional if honestly administered. (They’ve been outlawed by statute, not found unconstitutional.)

          Here pretextual actions that effectively outlaw a class of people from voting are viewed as violating the amendment even if they facially don’t do this.

      2. Since the crime of rebellion is the only ine specified, I think this clause might be of some utility to those who think felons and prisoners should be allowed to vote.

        1. “Since the crime of rebellion is the only ine specified,”

          This is incorrect. The relevant clause is “except for participation in rebellion, or other crime

          A state can constitutionally abridge your right to vote for participation in any crime.

  8. I wonder…were slaves citizens?

    Before 14A? After?

    I think that would be a significant factor in determining the intent of 14A (and therefore telling us how to approach the situation now).

    1. Guess I should read some before I comment…

      Civil Rights Act of 1866 and then 14A ensured the slaves were citizens.

  9. Soon enough, nothing — not voter suppression, not the systematic amplification of rural votes in the Senate and Electoral College, not gerrymandering, not configuration of census questions — will be enough to maintain viability of an electoral coalition for Republican preferences at the national level.

    Well, not exactly nothing. There is a reason for Democrats not to become overconfident. If conservatives perfect a device that mass-produces poorly educated, selfish, rural, easily frightened, backward, religious, southern, elderly white males, and Republicans figure a way to register such newly minted yahoos to vote, the liberal-libertarian mainstream could have a severe problem on its hands.

    So right-wingers have that going for them. Which is nice.

  10. Everyone is talking about the citizenship question, but I’ve got a different one.

    A quick search brought up this stat:

    People with felony convictions more broadly account for 8 percent of the overall population

    Wouldn’t 15A, Section 2, clauses 2&3 mean that there should be reduced representation in Congress? They’re persons (and citizens) denied the right to vote for President, VP, and US Congress.

    Or do those clauses only count when disenfranchisement is because of color, race, or previous servitude? Honest question, no snark.

    1. Did you miss this bit?

      “in any way abridged, except for participation in rebellion, or other crime,”

  11. Interesting argument but it doesn’t seem very persuasive to me. Just because the census *could* be used to enforce the 14th amendment penalty doesn’t entail that it must be used. For instance, if all census records for the past 100 years were destroyed surely it doesn’t follow that other estimates of the number of male citizens couldn’t be used to impose the 14th amendment penalty. But once you grant that point it seems that this argument losses all force since the APA or other federal law barring a citizenship question wouldn’t be unconstitutional since nothing requires the census be used in relation to this clause.

    Am I missing anything?

    1. I think the part that says “for participation in rebellion or other crime” is relevant here.

  12. Watching right-wing law professors’ desperate clinging is more fun than I would have expected it to be.

  13. The left wing loons have really gone off the deep end, even more than ever before. A citizenship question that was on the census a few decades ago. Arguably it’s not only constitutionally permitted, but in furtherance of a constitutional requirement.

    But the unhinged nuts here and elsewhere claim it’s UNCONSTITUTIONAL! Over at Slate they are screeching, “The Supreme Court Is Poised to Shred Its Credibility to Let Trump Rig the Census.”

    Totally unhinged.

    1. I’ll tell you what’s unhinged – the various “defenses” of this action by the Trump worshippers here, you very much included.

      If you, or anyone else, want to get a picture of just how dishonest and scummy this whole thing is, read the District Court’s decision.

      You won’t, of course, because you can’t allow the things you imagine to be true to be challenged by facts.

  14. The issue is not voting. The issue is the obligation to count all the citizens. The Constitution says the people should be counted every 10 years. I would say a ‘good faith’ effort should be made to count all the citizens. I say good faith effort is necessary because there are people who do not want to be counted for one reason or another and will refuse to cooperate.
    Yes, the citizenship question should be there. There is no sound reason for representation in Congress to be determined by Illegal Aliens or other non-Citizens. There is no sound reason for Federal Government block grants to be given to governmental sub-units based on the residence of people who should not be here.

    There are other demographic questions asked to determine the overall condition of the US. How many TVs, bedrooms, etc. These are basically harmless and I wish people would cooperate.

  15. […] — The Volokh Conspiracy, “Is the Government Required to Count the Number of Citizens in Each State?“ […]

  16. This is an interesting argument. Coming after the oral argument, it would seem to arrive a little late for the Supreme Court to consider it.

    One question is whether the 15th Amendment has superceded the releavant clauses of the 14th. Under the 15th Amendment, people deprived of the right to vote on account of race have a personal rights violation and access to much more direct remedies including injunctive relief from the federal courts. In light of this, it is at least arguable that the creation of direct rights and direct remedies suoercedes the 14th Amendment’s indirect, capitation-based remedies in a manner perhaps analogous to the way the 16th amendment’s introduction of direct taxation of incomes superseded the constitution’a previous capitation-based approach and rendered it irrelevant.

    If 15th Amendment direct remedies rendered the capitation-based 14th amendment approach irrelevant, than that would seem to weaken and possibly defeat the argument.

  17. The First Amendment protects “the right of the People to petition their government…” While a person with a colorable claim of being a member of the People might have a right under the Suspension Clause to present a claim in court with jurisdiction contingent on verifying that claim, in the 2nd Circuit case no claim of being a member of the people was made. No attempt whatsoever was made to contest the lawfulness of the underlying deportation order.

    Absent a colorable.claim of membership in “the People,” there is no constitutional right to petition the government. There were no First Amendment rights to protect here.

    The 2nd Circuit here is substituting its personal political beliefs for the Constitution’s explicit, unambiguous text.

Please to post comments

Comments are closed.