Census – Asking About Citizenship May Be Legal, Even Required; 14th Amendment Emphasizes Voting Rights Based Upon Citizenship
WASHINGTON, D.C. (April 25, 2019) – While much of the Supreme Court argument about the census involved whether adding a question about citizenship might result in an inaccurate count of the “whole number of PERSONS [presumably including illegal aliens] in each State,” little if any attention seems to be directed, at least according to law professor Eugene Volokh, to the 14th Amendment which requires that representation must be reduced, if voting rights are denied, in proportion to the number of CITIZENS voting in elections. [emphasis added]
As law professor Josh Blackman pointed out, this constitutional mandate in Clause 3 of Section 2 seemingly provides not only a very plausible justification for asking about citizens status; it could even be read to impose a legal duty to ascertain the citizen status of voters since otherwise how could "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 [presumably today including female] CITIZENS twenty-one years of age in such State." [emphasis added]
Thus, argues public interest law professor John Banzhaf, in addition to counting the whole number of PERSONS (including illegal aliens) to serve as a basis for apportionment, it appears that the government should also count the number of CITIZENS to serve as a basis for possibly adjusting representation; presumably at the same time, and logically and logistically in the same census form rather than otherwise.
There is also a strong argument from legislative history for this position, at least according to law professor Kurt Lash. He notes that Rep. Thaddeus Stevens, in discussing what would become Section 2, stated that "a true census of the LEGAL VOTERS shall be taken at the same time with the regular census." [emphasis added]
He also noted a famous speech about the 14th Amendment by Senator Jacob Howard who said 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," and repeatedly remarked about the role played by the census in enforcing this requirement." [emphasis added]
So, aside from issues about how much deference courts should give determinations made by federal agencies and the possible effects of including the citizenship question, the justices may wish to consider the 14th Amendment's concern about the voting rights of citizens, and the need to know how many citizen voters there are in each state, in deciding this important case, suggests Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf