In two posts, I observed that the current statutes regulating the reapportionment of the House of Representatives say nothing about how Section Two of the Fourteenth Amendment–which is still in force–should be taken into account when representatives are allotted to the states after each census. These statutes cannot lawfully prohibit Section Two from being taken into account, but they need not be read as doing so. They can instead be read as delegating authority to the Commerce Department to exercise that constitutional duty. Was that duty fulfilled following the last census? No, because the Commerce Department ignored Section Two entirely. Is there any remedy for that now? No. But there should be after the next census if the same thing happens.
A fine Note by Michael Hurta that appeared in the Texas Law Review about two years ago made a similar argument about the Commerce Department’s authority and duty to conduct Section Two review. What do I mean by review? I mean that the Commerce Department must collect data on people who are eligible to vote under the Constitution but are not permitted to vote by a state. If they decide that no adjustment to representation is warranted by that data, then that conclusion should be reviewed deferentially under ordinary administrative law principles. But such a review must, in my view, be done. If not, I would think that almost every state would have standing to say that its allotment of representatives after the next census is invalid (maybe they are entitled to one more, for instance, if somebody else should be getting one fewer).
Here’s one problem though: The Commerce Department is not the right agency to conduct this analysis. Suppose questions are included on the census about past voting history and someone claims that they were turned away at the polling place. How could this be verified? Census data is confidential, in large part to encourage people (even those here illegally) to respond. Moreover, the DOJ is the place where you find experts on voting rights–not the Commerce Department. Thus, I think all Commerce could do is say “X number of people in a state told us that they were denied the right to vote for what appears to be an invalid reason.” Now maybe that number would be so small as to be irrelevant, but suppose it were large and Section Two was invoked. Congress would be free to reject the Department’s conclusion that a state’s representatives should be reduced based on a disputed question of fact, but partisan deadlock might prevent Congress from acting at all.
Consequently, I’m wondering if the reapportionment statute should be amended to require the DOJ to conduct a Section Two review following the census. Section Two does not require an enumeration of the disenfranchised in the way that the Census requirement in the Constitution does. But I want to think about that some more.