By David B. Rivkin Jr. and Gilson B. Gray
| The Wall Street Journal
People
await decisions from the Supreme Court in Washington,
June 27. PHOTO: MARK
WILSON/GETTY IMAGES
The 14th Amendment gives the Trump administration the justification it needs.
The Trump administration said Wednesday it will attempt
to add a citizenship question on the 2020 census while complying with the
Supreme Court’s ruling in Department of Commerce v. New York.
Five justices held that the Census Act allows the question, but a separate
five-justice majority found the rulemaking that added the question was
procedurally deficient. There is a way forward. The Constitution itself
requires the collection of citizenship information.
Section 2 of the 14th Amendment provides that
if a state denies the franchise to anyone eligible to vote, its allotment of
House seats shall be “reduced in the proportion which the number of such . . .
citizens shall bear to the whole number of . . . citizens . . . in
such state.” This language is absolute and mandatory. Compliance is impossible
without counting how many citizens live in each state.
The 14th Amendment was adopted in 1868, and this
provision meant to secure the voting rights of newly freed slaves. But it
wasn’t limited to that purpose. An earlier version of Section 2, introduced in
1865, specifically referred to limits on suffrage based on “race or color,” but
the Senate rejected that limitation. The amendment forbids state interference
with the rights of all eligible voters (then limited to males over 21).
Section 2 also applies to every state, a point Rep. John
Bingham, the amendment’s principal drafter, emphasized during the floor debate:
“The second section . . . simply provides for the equalization of
representation among all the States in the Union, North, South, East, and West.
It makes no discrimination.”
Congress has dealt with suffrage-abridgement problems
through other constitutional and statutory means, especially the Voting Rights
Act.
But that doesn’t change the constitutional obligation to obtain
citizenship data.
A future Congress could decide to rely on Section 2 to
enforce voting rights, particularly as the VRA’s core provision, requiring
Justice Department approval when certain states change voting procedures,
becomes irrelevant because of changing attitudes and Supreme Court precedent.
Significantly, the last time the Supreme Court addressed
Section 2, it emphasized the need to give effect to both Section 1, which
includes the Equal Protection Clause, and 2 of the 14th Amendment. That
case, Richardson v. Ramirez (1974), involved an equal
protection challenge to California’s policy of disfranchising felons.
The president should issue an executive order
stating that, to comply with the requirements of Section 2 of the 14th
Amendment, the citizenship question will be added to the 2020 census.
In
addition, he can order the Commerce Department to undertake, on an emergency
basis, a new Census Act rulemaking. That would trigger another round of litigation.
Opponents
would choose a federal district court likely to block it again, and the Justice
Department would have to seek the Supreme Court’s intervention during its
summer recess. While rare, such an emergency review has happened before. With
the justification for the citizenship question being clear and compelling, the
administration should prevail.
Messrs. Rivkin and Gray are lawyers, based in
Washington and New York respectively.
