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Members of the Supreme Court sit for a new group portrait following the addition of Associate Justice Ketanji Brown Jackson, at the Supreme Court building in Washington, Friday, Oct. 7, 2022.
Sometime in the next two weeks, when the justices of the Supreme Court meet in conference, they will decide the fate of an unusual under-the-radar lawsuit brought two years ago to enforce what the lawmakers who amended the Constitution in 1868 thought was the “most important” clause: Section 2 of the Fourteenth Amendment. The Prospect has followed the story of the never-before-enforced provision that provides (omitting age and sex language that no longer apply) that “when the right to vote at any election for the choice of electors for President and Vice President of the United States [and other federal and state elections] is denied … or in any way abridged … the basis of representation therein shall be reduced in proportion which the number of such … citizens shall bear to the whole number” of citizens in such state.
To translate that 19th-century language, if a state unduly restricts the right to vote, it will lose representatives in the House to states that do not, as well as votes in the Electoral College. The framers of what is known as the Reduction Clause wanted to make sure that the states of the Confederacy readmitted to Congress would not swell their number of Representatives based on the now-eligible-to-vote number of formerly enslaved people, and then find ways, not always explicitly racial, to disfranchise those voters.
The case was brought by Jared Pettinato, a former U.S. Department of Justice lawyer, on behalf of Citizens for Constitutional Integrity, an organization of voters, against the Census Bureau. The plaintiffs claim the Bureau has been given broad statutory authority to collect data and apportion representatives, but in doing so has failed to follow the Constitution. The Bureau, represented by the Department of Justice, denies that it has that authority.
The lower courts have dodged the ultimate question of whether the government must implement the Reduction Clause by ruling that Citizens for Constitutional Integrity has not complied with the law of standing, which requires proof of a certain level of redressable harm before a court will reach the merits of a claim.
To show that enforcement would redress sufficient harm, Pettinato offered proof of several reapportionment scenarios, most prominently that Wisconsin’s 2011 photo voter identification law disfranchised 300,000 registered voters. That should have led to the state losing a House seat to New York, under the logic of the Section 2. The lower courts decided his showing was insufficient.
I met a similar fate in the mid-1960s, when I was counsel at the NAACP Legal Defense Fund. At a time of rampant discrimination against potential Black voters in the Deep South, my boss Jack Greenberg tasked me to find a way to implement Section 2. A federal judge in the District of Columbia also found we lacked standing to sue. His decision was one of a long line of rulings that had so held.
Section 2 covers a range of ways, not just racial, that are used to stifle voting that were not employed in 1965.
As racial discrimination was undeniable then, we thought that perhaps the Constitutional provision would never be enforced, but the court of appeals treated the case differently. It implied that we might very well have a viable case for a remedy. However, because the Voting Rights Act of 1965 was about to be signed into law, the judges decided to stay their hand, in the hopes that the new statute would end the disfranchisement.
Section 2 covers a range of ways, not just racial, that are used to stifle voting that were not employed in 1965. Voter ID laws, for example, could just as easily disfranchise elderly voters who cannot locate the proper documents to obtain an ID, or students who don’t live in a particular state full-time but who want to vote there. (I have offered modest advice to Pettinato and I am listed on his petition as “of counsel.”)
When the request for review is before the justices, they will be considering only a somewhat obscure version of the standing issue that was framed in the court below. The justices do not need to decide the extent of the authority Congress has conferred on the Census Bureau, or whether the current favor for originalism should lead to a robust implementation of the Reduction Clause. Instead, at this time the case only involves deciding whether, in cases where the government refuses to reapportion House seats, due process gives a state’s citizens a right to require the government to follow various settled procedures. The Census Bureau admitted it never completed the procedures laid out in Section 2. Pettinato argues Citizens for Constitutional Integrity has a right to those procedures.
In truth, the petition for review in this case, like previous efforts to give life to the Reduction Clause, faces long odds. The meaning of procedural rights standing is a head-scratcher for even veteran constitutional lawyers. The DOJ declined to respond to Pettinato’s brief; two amicus briefs from scholars have been filed supporting him. But the focus on procedure rather than the ultimate question gives the Supreme Court a safe way to treat an explicit constitutional provision with dignity.
A ruling in favor of Citizens for Constitutional Integrity would require a trial court to consider the actual behavior of the states and the consequences when potential voters are badly treated. This would fit with the original reading of the Constitution, which is supposed to be a guidepost for the conservatives on this Court. The Justices claim to have a reverence for textual evidence; we shall see if that plays out.
