by David B. Rivkin, Jr., and Richard Raile
24 April 2019 in the Wall Street Journal
The Supreme Court Tuesday will hear oral arguments in the Trump administration’s appeal of lower-court orders forbidding it to ask a citizenship question in the 2020 census. The justices’ task in Department of Commerce v. New York won’t be difficult: The law and facts overwhelmingly support the administration. But the case is a proxy for future battles over redistricting and reapportionment, vital components of American democracy that determine the balance of political power within and among states.
The Census Act grants the commerce secretary discretion to conduct the census “in such form and content as he may determine.” In rejecting the citizenship question, the lower courts usurped that authority and frustrated Congress’s intent. The question about citizenship is far from unprecedented: It was asked in every census but one from 1820 to 1950. Most advanced democracies ask for citizenship information in censuses, a United Nations-recommended best practice.
The administration argues that the citizenship data would help in enforcement of the Voting Rights Act, and that is manifestly true. By law, “majority minority” districts must be drawn so at least 50% of eligible voters—i.e., citizens over 18—are members of the minority in question. If too many minority residents are ineligible to vote, that defeats the purpose of avoiding the dilution of minority voting strength. Voting-rights litigation and compliance are hampered by the lack of citizenship data in the decennial census.
The plaintiffs in this case, which include 18 states and the District of Columbia, are using the litigation as a means of stifling the legal and policy debate over whether and how citizenship information should be used in redistricting and reapportionment.
One question is whether states and localities may equalize the populations of their legislative districts according to the number of citizens rather than the total number of persons in the district, including aliens. The one-person, one-vote principle requires that district populations be substantially equal. But in states with large alien populations, equalizing all persons results in voter inequality, giving voters in districts with high numbers of aliens an unfair electoral advantage. This also tends to increase the political clout of urban over rural areas.
The Supreme Court held 8-0 in Evenwel v. Abbott (2016) that states and localities are not required to equalize citizens, but it did not forbid them from doing so. One purpose of the census-question litigation is to deprive states of the data to exercise that option.
An even more fundamental question is how accurate citizenship data might affect the apportionment of House seats (and therefore electoral votes) by state and the drawing of House districts. The conventional wisdom—which the justices assumed in Evenwel, although the case did not directly address the question—has been that the Constitution requires apportionment based on all persons physically present in a state, since the relevant language of Article I and the 14th Amendment refers to “the whole number of persons in each State.” But there is more here than meets the eye.
The draft Constitution required that seats be apportioned according to the number of “inhabitants” per State. That was the word used in the text, and framing debates, until the Convention’s Committee of Style and Arrangement substituted “persons.” But the high court made clear in Powell v. McCormack (1969) that any changes made by that committee were stylistic and not substantive. Further, the term “inhabitant” means more than mere physical presence. Webster’s 1828 dictionary defines it as someone with “a fixed residence” or who “resides permanently in a place.” In law, “inhabitant” was someone “who has a legal settlement in a town, city or parish” such that the person, “if a pauper,” was entitled to financial assistance there.
That mattered in the late 18th and early 19th centuries because the contemporary welfare system was administered at the local level and tied individuals to a political subdivision under a doctrine called “inhabitancy,” discussed in Blackstone’s commentaries on English law, which informed the Constitution’s drafters. The 1662 English statute Blackstone discussed required persons to return for assistance to the parish where they were declared “inhabitants.” As a result, the Constitution’s original public meaning tied apportionment to persons with a fixed abode and far more permanent place in the political community than simple physical presence.
True, inhabitancy and citizenship were not originally synonymous. Until the late 19th century, no federal law regulated immigration, and aliens could arrive and remain at will. Subsequently, however, Congress exercised its power over immigration and naturalization to define the nation’s political community, as well as entitlement to government benefits. Today, anyone who enters the U.S. unlawfully is subject to involuntary removal and thus cannot be considered an inhabitant in the constitutional sense.
Evenwel’s assumptions notwithstanding, these issues have yet to be directly explored, let alone resolved, in the political and judicial arenas. The plaintiffs in today’s cases want them to stay that way. They include states whose overt policies of attracting illegal aliens to so-called sanctuary cities advance their political self-interest in obtaining additional House seats and electoral votes.
Factoring such aliens into reapportionment and redistricting does nothing for them, as it does not change immigration status. Rather, it rewards state policies designed to subvert the Immigration and Nationality Act and to achieve enhanced representation at the expense of more law-abiding states. Today’s case marks only the beginning of a larger debate over these questions.
Messrs. Rivkin and Raile practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Raile has represented clients in redistricting litigation in Arizona, Georgia, North Carolina, Ohio, Pennsylvania and Virginia.