My research into the reapportionment process is still ongoing, and I’ve been working through the following problem: Is the Commerce Department’s failure to undertake a Section Two review as part of its reapportionment duty unlawful or is it the result of an unconstitutional statute?
One way of thinking about the issue is that Congress delegated its Section Two authority to the Commerce Department in the relevant statutes, but the Department has refused to exercise that power and perform its designated function. Here is the most straightforward argument on that score–2 U.S.C. Section 6 provides:
Should any State deny or abridge the right of any of the male inhabitants thereof, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendment to the Constitution, article 14, section 2, except for participation in the rebellion or other crime, the number of Representatives apportioned to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State
This statute was enacted by Congress in 1872 and closely follows the language of Section Two. Since the Commerce Department has never tried to apply this provision or examined whether it should be applied, perhaps the answer is that the Department is just not following the statute.
But this analysis is not so straightforward. There is a strong case that 2 U.S.C. Section 6 is unconstitutional because of its use of the word “male.” Though this is what Section Two says, a statute that says makes an explicit distinction based on sex must satisfy heightened scrutiny under the Equal Protection Clause. 2 U.S.C. Section 6 cannot meet the standard, especially given that the choice of the word male in the Fourteenth Amendment rested in large part on the fact that no state allowed women to vote. Thus, the Commerce Department is probably right in declining to enforce this law or collect “male-only data” out of concern that they would be acting unconstitutionally.
What about the other statutes that govern reapportionment? More on that next week.