Section Two and the Political Question Doctrine
Let’s assume I can convince you (which I haven’t yet) that the federal apportionment statutes are unconstitutional because they ignore Section Two of the Fourteenth Amendment. Still, is that a political question that is not justiciable? If so, then my next paper won’t be of much practical value. I think, though, that Section Two does not present a political question even though there are three or four lower federal court opinions (all more than fifty years old) saying that it does.
First, the only Supreme Court case where a Section Two claim was presented rejected that claim on the merits. In McPherson v. Blacker, the Court held that state legislatures have broad authority to determine the method used to choose presidential electors. One of the issues that was addressed was whether Section Two of the Fourteenth Amendment limited that power directly, and the Court said no. (So did the Michigan Supreme Court in the decision below.) There was no suggestion that Section Two raised a political question. As a result, the subsequent lower court decisions that went the other way (none of which cite Blacker) are, in my view, just wrong on this point.
Second, these lower court decisions all predate Baker v. Carr (which reformulated the political question doctrine) and all involved Section Two in a collateral way that is distinguishable from the kind of challenge that I am contemplating. In one Second Circuit decision, a man convicted for refusing to answer census questions argued that the census was unconstitutional because it did not ask questions about voting eligibility pursuant to Section Two. The Court affirmed the conviction saying that Section Two presented a political question, but another way of looking at the case was that the entire census is not invalid (and the duty to respond is not erased) no matter what you think of Section Two. In a D.C. Circuit case, a man convicted of failing to respond to a subpoena from the House of Representatives argued that the subpoena was invalid because that Congress was not elected consistent with Section Two. The Court rejected that with a political question argument, but on the merits that claim was very weak (what about every statute enacted by that Congress–was that also invalid?) And in a Fourth Circuit case, a man who was not allowed to run for Congress in Virginia argued that the state was not entitled to the number of representatives because of its poll tax. Once again, this was called a political question, but on the merits no court was going to take this seriously at a time when the poll tax was adjudged constitutional (in 1945).
Third, there is a big difference between saying that something is not justiciable and that there should just be significant deference given by courts on the merits. My view is that Congress cannot bar consideration of Section Two of the Fourteenth Amendment as it currently does. Once some consideration is permitted, though, then exactly how that is done or what standards are used rest within Congress’s discretion with few exceptions. The Court has ruled on other cases involving the apportionment process for the House of Representatives and deferred to what Congress did–the same would probably be true here.
Tomorrow I’ll go back to the statutes are try to tie this together.
UPDATE: Now I’m not so sure that the McPherson part of this post is correct. The better reading may be that no Section Two claim was presented in that case. I need to obtain the briefs, which will take some time.