Don’t Mess with Reapportionment

I. Introduction

Reapportionment is the decennial process through which congressional representatives, and relatedly, Electoral College votes are allocated to the states.^[1] While the ins and outs of counting population via the census can be complex and less than accurate for a myriad of reasons,^[2] once the populations of each state have been tallied, the United States Code lays out a relatively simple reapportionment process. The President transmits to Congress a statement of the number of representatives entitled to each state using a formula dictated by federal statute.^[3] Congress, through the Clerk of the House of Representatives, then sends a certificate to each state providing notice of their number of representatives.^[4] End of story.^[5]

This simple process though, was not always so simple. Reapportionment was quite messy from the birth of the United States until the early twentieth century.^[6] During this time, Congress would start every decennial reapportionment from scratch, which led to many different reapportionment formulas being used and significant controversy.^[7] And then things got even worse. Reapportionment completely broke down following the 1920 Census when Congress utterly failed to reapportion.^[8] Finally, at the end of the Roaring Twenties, Congress cobbled together a compromise that spawned the simple process used today—a process that has mostly quieted reapportionment controversy for nearly a century.^[9]

In recent years, commentators in both the political science and law review literatures have taken aim at perceived flaws of the current, simple process. On the political science front, the target is the reapportionment formula. The current formula is alleged to be biased in favor of less populated states and, in the eyes of some, should be replaced with a formula that would be slightly less biased.^[10] In the law review literature, the calls have been for the courts to enforce a never-implemented portion of the Fourteenth Amendment known as the Reduction Clause, which can potentially be used to penalize states that deny or abridge voting rights by taking away congressional seats (which would lead to a concomitant reduction of Electoral College votes).^[11] One law review commentator proposed that a court order the Census Bureau to generate reapportionment data taking into account the denial or abridgment of voting rights pursuant to the Reduction Clause.^[12] Another legal scholar proposed that a court declare the reapportionment statute itself unconstitutional because the statute does not grant the Executive Branch the ability to generate data related to the Reduction Clause.^[13] Although these proposals differ slightly in their jurisprudential foundations, both proposals seek judicial interference in the reapportionment process premised upon application of the Reduction Clause.

Many of these criticisms of the reapportionment process have been around the political science and law review literatures for years,^[14] but renewed academic interest in the Reduction Clause has occurred alongside renewed interest by litigants (and even documentary filmmakers!).^[15] A lawsuit seeking to throw out the most recent reapportionment on Reduction Clause grounds was recently considered by a three-judge federal panel,^[16] and an appeal of that decision could head directly to the U.S. Supreme Court.^[17] Put simply, the Reduction Clause’s role in reapportionment could be on a collision course with the highest Court in the land.

This Article contends that, despite any potential flaws identified by commentators and litigants, the reapportionment process should be left alone. Reapportionment was a messy political process for many decades and ultimately became so messy that Congress wasn’t even able to reapportion following the 1920 Census.^[18] The compromise emerging from that 1920s rubble has, in essence, put reapportionment on an uncontroversial autopilot—to the overall benefit of democracy in the United States.^[19] Reopening the process to debate a new formula or throwing a wrench into the existing process by judicial fiat would be a mistake because it has the strong potential to create another political football for poisonous partisan debate that is not needed in the current hyper-polarized landscape. Moreover, the Reduction Clause, which is the vehicle legal commentators and litigants want to use to spark judicial intervention, has never been implemented in its 150-plus years of history, including during some of the United States’ most despicable eras of disfranchisement.^[20] Beyond its lengthy dormancy, implementing the Reduction Clause would be extremely difficult and implementation might well be done in a partisan manner. In essence, messing with the reapportionment process could very well lead things back to the situation that existed in the 1920s. And, importantly, there would seem to be ample, credible doctrinal tools in the judicial arsenal—for example, the political questions doctrine or principles involving standing—to avoid going down this road.

This Article proceeds in three core parts. Part II provides the necessary backstory, briefly sketching the history of reapportionment and the history of the Reduction Clause while also providing a quick overview of the judiciary’s approach to the Clause and to reapportionment generally. Part III enters the realm of realpolitik. It describes the recent political science and legal proposals and sketches out what the consequences of those proposals might be, ultimately making the case that little, if anything, positive would likely emanate from changing the existing, stable reapportionment dynamic. Part IV returns to a more purely jurisprudential posture and sketches some plausible doctrinal positions to keep the judiciary from messing with reapportionment.

II. Reapportionment Over Time

The U.S. Constitution mandates the reapportionment of Representatives “among the several States . . . according to their respective Numbers.”^[21] This is a seemingly simple principle. And it is a simple principle for the vast majority of seats distributed among the states. But the simple principle becomes tricky due to fractions. For instance, assume the United States has a population of 331 million, Indiana has a population of 6.7 million, and there are 435 seats to be divided up among the states. Indiana has 2.024% of the total population, and theoretically, should be entitled to 8.80 (2.024%) of the 435 seats. But seats are whole and cannot be fractionally assigned. So, should Indiana get eight or nine seats?^[22] The hypothetical demonstrates that the pressing issue when it comes to reapportionment is determining what should be done with fractional remainders.^[23]

From the Founding until the early twentieth century, Congress bounced around between various formulas for dealing with fractional remainders.^[24] For the initial reapportionment that occurred at the Founding, dealing with fractional representation was solved using the “Jefferson method,” which is also known as the “method of greatest divisors.”^[25] In a nutshell, the Jefferson method ignored fractional remainders.^[26] This method was used for reapportionments until 1842.^[27] At that point, Congress adopted the “Webster method” of reapportionment.^[28] The Webster method considered fractions and provided an additional seat to those states that had a fractional representation above one-half.^[29] But the Webster method had a very short run, as for the next reapportionment, Congress abandoned it and adopted the “Hamilton method.”^[30] The Hamilton method distributes the fractional seats by giving the remaining seats to the states with the highest leftover fractions.^[31] The Hamilton method reigned for about half a century, until 1911, when the Webster method made a comeback.^[32]

This quick tour of various approaches to fractional representation over more than a century of American history might make your head spin, and it also might give the impression that Congress just bounced around between different formulas without much problem. But that impression would be far from the case. Reapportionment consistently generated significant controversy and angst between the Founding and the first part of the twentieth century. For instance, the initial reapportionment was vetoed by President George Washington (it was the first ever Presidential veto in history!).^[33]

In relation to the general messiness of the process, Professor Charles Eagles noted that the “first thirteen reapportionments up through 1911 involved considerable controversy.”^[34] And two other experts in reapportionment have similarly opined that “[t]he country that has had the most intense debates over [reapportionment] is the United States. The argument began at the Constitutional Convention in 1787, flared again when the results of the first census were reported in 1791, and was regularly discussed thereafter every ten years.”^[35] So, from the Founding until the early twentieth century, reapportionment occurred each decade, but it certainly wasn’t easy.^[36]

Then all hell really broke loose. After the 1920 Census, Congress failed to reapportion.^[37] This fact merits repeating and being placed in italics because it is an extremely important moment in United States reapportionment history, and is absolutely crucial to bear in mind when considering whether to mess with reapportionment today: Congress did not adopt reapportionment legislation to reallocate seats based on the results of the 1920 Census.^[38] So reapportionment went from a difficult decennial event to a nonexistent one.

The reasons for the failure to reapportion after the 1920 Census were many and somewhat complex but, for current purposes, the following summary suffices:

The failure to reapportion the House based on the 1920 census resulted from many controversies that divided the Congress. Although the 1920 Census had occurred without any special controversy, its results soon sparked strenuous disagreements. The 1920 Census showed that the population had grown by nearly 14 million and that most people for the first time lived in urban areas, but some questioned the accuracy of a census taken so soon after the socially disruptive World War I. The population shifts revealed by the census meant that some changes in the apportionment of congressmen would be necessary; to prevent any state from losing a representative, sixty new congressmen would have to be added to the House. Physical limitations of the House chamber, however, made more congressional seats unlikely, and some representatives argued that the House’s efficiency would decline if it grew in numbers. Others pointed out that the larger number of voting constituents after women’s suffrage made smaller districts and more representatives necessary. An additional controversy involved whether representation should be based on a population that included [Black citizens] and aliens who could not vote. Finally, congressmen disagreed over the proper statistical procedure to use to allot seats in the House.^[39]

On the bright side, the debacle that was the failure to reapportion after the 1920 Census ultimately led to reapportionment détente. At the end of the Roaring Twenties, Congress reached a compromise, enacting the Reapportionment Act of 1929 that eliminated the decennial debate over reapportionment by creating a default process.^[40] The compromise, which was modified a bit in 1941,^[41] created the basic structure used today: the census is conducted and the President transmits to Congress a statement of the population of each state and the number of representatives to which each state is entitled using a formula known as the “method of equal proportions” and then the Clerk of the House of Representatives notifies each state of its representation.^[42] In essence, Congress put reapportionment on autopilot rather than having to subject reapportionment to manual adjustment through passage of legislation every decade.

The prior sketch of reapportionment history, though, omits a piece of the puzzle that entered the fray in the 1860s—Section Two of the Fourteenth Amendment. Section Two’s text reads as follows:

Representatives shall be apportioned among the several States according to their re-spective [sic] numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, be-ing [sic] twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the ba-sis [sic] of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.^[43]

The key verbiage here is what is known as the Reduction Clause, which allows for the representation of a state to be reduced if the right to vote is “denied” or “in any way abridged.”^[44] The Reduction Clause was designed to solve a problem related to the representation provided to the former Confederate states. When the abomination of slavery ended, the Three-Fifths Clause became inoperable (i.e., slaves would no longer count as three-fifths of a person when it came to reapportionment because they were now free).^[45] This meant that the former Confederate states would see an increase in their population for reapportionment purposes.^[46] However, those same former Confederate states might well deny voting rights to the newly freed slaves.^[47] The Reduction Clause, thus, was intended to incentivize the former Confederate states to fully enfranchise freed slaves so that those states could gain their full representation.^[48]

But the Reduction Clause turned out to be difficult to implement from the get-go. During the 1870 Census, the Executive Branch attempted to generate statistics regarding the number of persons whose voting rights were denied or abridged by asking census questions related to voting rights. Yet, even the Executive Branch gave little credence to the data generated by its own questions.^[49] Congress then tried to make its own judgment about the impact the Clause should have on reapportionment following the 1870 Census.^[50] However, Congress itself ultimately concluded the Reduction Clause should not be used in that reapportionment.^[51] In the end, as a part of the post-1870 Census reapportionment, Congress could only pass a meaningless codification of the Clause into federal law.^[52]

The Reduction Clause then basically flew under the radar for the next several reapportionments. Indeed, the Executive Branch decided to not even ask questions during the 1880 Census that might help determine the extent of denial or abridgment of voting rights.^[53] And the Clause, with one relatively minor exception, was largely ignored by Congress through the reapportionments that followed the censuses conducted between 1880 and 1910.^[54]

The Reduction Clause played a bit more of a role during the 1920 reapportionment stalemate. The main actor in the 1920s debate involving the Clause was Republican George Holden Tinkham from Massachusetts.^[55] At numerous points, Representative Tinkham and his allies attempted to make the widespread and obvious discrimination against Black voters in the South an issue in the reapportionment and to reduce the number of members of Congress granted to the southern states.^[56] In the end, though, these efforts bore little fruit.^[57]

With the normalization of the reapportionment process through the 1929 compromise, discussion of the Reduction Clause was limited in the next several decades; however, the Civil Rights Era of the 1950s and 1960s saw a renewal of interest in the Clause. During that time, Congress regularly debated whether to study application of the Reduction Clause and passed a provision in Title VIII of the 1964 Civil Rights Act that arguably moved the needle slightly toward putting some teeth into the Clause.^[58] And a lawsuit was filed in the D.C. District Court in 1963 that aimed to secure a declaratory judgment obligating executive branch officials to enforce the Clause for the 1970 Census.^[59] But momentum for any application of the Clause, through judicial intervention or otherwise, petered out with passage of the Voting Rights Act of 1965.^[60]

The action involving the Reduction Clause in the 1960s momentarily implicated the federal judiciary and that judicial foray, where the lower federal courts decided against getting involved, is basically emblematic of both the judicial approach to the Clause and judicial involvement in reapportionment generally.^[61] By and large, courts have been hands off when it comes to arbitrating among competing interests jockeying for congressional seats. Indeed, the U.S. Supreme Court has never invalidated a reapportionment.^[62]

The Court’s generally laissez-faire approach to reapportionment can be seen in the early 1990s decision in United States Department of Commerce v. Montana.^[63] In that litigation, Montana claimed that the existing reapportionment formula violated Article I, Section Two because it did not “achieve the greatest possible equality in the number of individuals per representative.”^[64] In essence, Montana wanted the Court to implement a formula that would have advantaged smaller states.^[65] A three-judge federal district court sided with Montana.^[66] But the Supreme Court reversed.^[67] In doing so, the Court held that judicial interpretation of Article I, Section Two was not barred by the political questions doctrine.^[68] However, on the merits of Montana’s argument, the Court employed a very deferential standard of review, essentially holding that the current reapportionment formula was the product of a good-faith effort by Congress to fairly apportion representation.^[69] In short, Montana shows the Court unanimously choosing to give wide berth to reapportionment choices made by Congress.^[70]

Similarly hands-off was the Court’s approach in Franklin v. Massachusetts,^[71] where the Court avoided entering a dispute about the allocation of federal overseas employees to the states for reapportionment purposes. In that litigation, the Court held that decisions about the allocation of federal overseas employees made by the Secretary of Commerce were not final agency action reviewable by the judiciary under the Administrative Procedure Act (APA). After dispensing with the idea that courts could adjudicate a violation of the APA, the Court proceeded to dispense with the contention that the Secretary’s allocation of federal overseas employees violated Article I, Section Two.^[72] In doing so, the Court noted that the Secretary “made a judgment, consonant with, though not dictated by, the text and history of the Constitution.”^[73] With this decision to defer to the Secretary’s judgment, the Court gave wide berth to a reapportionment choice made by the Executive Branch.

Doctrinal details aside, the big-picture lesson of Franklin seems to be the same as Montana: the Supreme Court appears willing to extend quite a bit of deference to the other two federal branches of government when it comes to reapportionment.

So, let’s recap where we have been with reapportionment over time, commencing with reapportionment generally. Reapportionment historically was a political game played decennially. Every ten years, Congress had to decide upon a mathematical methodology to reapportion political power among the states. Congress was able to do that, though not without significant angst, for every decade from the Founding until 1910. Then, with the 1920 Census, the reapportionment process completely broke down. After a decade of reapportionment neglect, Congress cobbled together an agreement on a reapportionment process that would no longer necessitate a congressional reckoning after each census. Since the reapportionment that followed the 1930 Census, the process created out of the 1920s stalemate has functioned without too much fuss.

Now consider Section Two of the Fourteenth Amendment and its Reduction Clause. The Clause was intended to solve a discrete problem related to the Confederate states (i.e., well-placed skepticism about their willingness to provide full voting rights to newly freed slaves).^[74] Initially, for the 1870 Census, the Executive Branch attempted to implement the Reduction Clause—without success.^[75] Another branch of the federal government (Congress) has never employed the Clause even during the most despicable eras of voting rights violations in U.S. history.^[76] And the judiciary has avoided entering the reapportionment thicket to mandate change—using the Reduction Clause or otherwise. That judicial inaction has been a good thing and, as will be discussed in the next part, should continue.

III. Don’t Mess with Reapportionment

Things have been relatively quiet for nearly a century when it comes to reapportionment, but some have called for upsetting the apple cart by either changing the formula or using the judiciary to pump life into the Reduction Clause. These are not good ideas for a variety of reasons.

One of the recent calls for reapportionment reform is Professor Ruoxi Li’s proposal to revise the reapportionment formula.^[77] Professor Li proposes switching away from the current formula because it is slightly biased in favor of less populated states. Professor Li advocates use of an alternative formula, the “Webster method”^[78] that Congress used a few times in the past, to eliminate this slight bias.^[79]

But reopening congressional debate on the formula would potentially open up a new front in what have been termed the “voting wars,” which has become a shorthand phrase to describe the highly partisan battles over the democratic process that have occurred during the last couple of decades (i.e., since Bush v. Gore).^[80] Depending on the politics—whether there will be a short-term benefit for either Republicans or Democrats from a change in the formula—each side of the political aisle would be likely to predictably line up to either support or to oppose such a change.^[81] Indeed, this sort of short-term partisan gain has manifested itself before as the current reapportionment formula was chosen by Democrats because, at the time it was chosen, it provided a very slight advantage to them.^[82] Given the current poisonous, hyper-partisan political climate,^[83] reopening debate on the reapportionment formula has the potential to create a cleavage where no significant division currently exists.^[84] While others might disagree, opening up another potential front in the voting wars does not seem like the best of ideas or something that will amount to a positive for the political culture of the United States.

But maybe the flaw with the current formula is so pressing that it would be worth it to reopen the potential political Pandora’s Box of reapportionment. Maybe there is a great wrong with the current reapportionment formula that needs to be righted. Maybe the current reapportionment formula is the modern-day equivalent of the incredible malapportionment of legislative districts^[85] that occurred prior to the redistricting revolution in the 1960s brought on by Baker v. Carr.^[86] Maybe the current reapportionment formula is a cancer on the body politic.

Doubtful. Political scientists have essentially concluded that no reapportionment formula can be perfect along every dimension,^[87] so choices must be made along these dimensions. Without delving into the gory mathematical details, Congress made a choice to use a formula that falls into a category of formulas called divisor methods.^[88] Divisor methods can be categorized along a continuum from those methods that consistently favor less populous states to those methods that consistently favor more populous states, and the trick is to find the method that least exhibits bias one way or the other (i.e., the most “unbiased” formula).^[89] The current formula represents Congress’s choice to compromise by choosing the median formula of five formulas they considered that fell along the continuum.^[90] In other words, when Congress chose the current formula, they had been presented with five formulas, including the Webster method, and they chose the one they thought fell in the middle of either being biased toward less populous states or being biased toward more populous states.^[91] (Recall that Congress also apparently chose the formula that was the most expedient in the short-term to the ruling political party at the time.)^[92] Such compromise in the face of a conceded inability to make things totally perfect hardly seems like a major blemish on American democracy.

And even if one were to choose the most unbiased reapportionment formula, as determined by political scientists, the slight benefit of perfecting the formula likely would be outweighed by the costs of opening another front in the voting wars. As Professor Li has noted, the most unbiased divisor method is the Webster method.^[93] But a change from the current formula to the Webster method would likely not make much of a difference. For the nine reapportionments conducted between 1940 and 2020 using the current formula, a switch to the Webster method would have led, on average, to one state losing a seat and one state gaining a seat at each reapportionment.^[94] So, we would reopen the reapportionment battle to fine-tune the formula to account for a bias that would, on average, reallocate one (or about 0.22%) of the 435 seats every decade.^[95] And we would potentially be creating a new front in the voting wars over the placement of a single seat when even Professor Li, who advocates for such a switch, admits that change seems unlikely.^[96] While different people can certainly have different views about the costs and benefits, it just doesn’t seem worth it to tinker with the current formula.

That said, the refreshing thing about a call for Congress to revisit and revise the reapportionment formula is that it involves a political solution chosen by Congress. Congress can decide what it wants to do with the formula that governs its own internal workings. And if Congress chooses to change or to stand pat, that’s just like any other choice Congress makes to act or not act of its own volition.

Far worse than a political debate in Congress would be judicial entry into the political thicket that could potentially create reapportionment chaos. For instance, a court might order the Commerce Department to redo the 2020 Census and reapportionment to account for the Reduction Clause. Indeed, such litigation is already working its way through the federal courts where a nonprofit group has filed suit seeking to have the most recent report compiled by the Census Bureau set aside, for the 2010 reapportionment to be reinstated, and for the Census Bureau to be ordered to conduct a new analysis that would account for the Reduction Clause.^[97] Not exactly a small ask of a judicial order!

For such litigation to be successful, Congress must have delegated to the Executive Branch the power to implement the Reduction Clause. While there is some debate,^[98] at least one commentator, Michael Hurta, has argued that the Executive Branch currently has statutory authority to implement the Clause.^[99] (The details of Michael Hurta’s basic argument are not necessary to an understanding of the points made here but appear in this footnote.)^[100]

Assuming the accuracy of Michael Hurta’s statutory interpretation, let’s sketch what might happen if the judiciary orders the Executive Branch to tabulate reapportionment using the Reduction Clause. If a court orders the Census Bureau to produce revised reapportionment numbers implementing the Clause, then the Census Bureau has to decide what amounts to a denial or an abridgment of voting rights as contemplated by the Clause’s language.^[101] And the Census Bureau will have to make such decisions in the absence of a clear indication as to what those who adopted the Fourteenth Amendment meant by those words—particularly with regard to a vote being “abridged.”^[102]

What sorts of laws could be considered denials or abridgments of voting rights that should be included in the mix? Consider just a smattering of issues that might be put on the table:

• A state denies the ability to vote to those who have been adjudicated insane.

• A state has a pre-election day deadline (say, thirty days) to register to vote.

• A state has no early voting.

• A state limits absentee voting to a narrow class of persons (e.g., the elderly) and does not allow other persons to vote absentee.

• A state makes persons appear at a polling location to cast a vote instead of allowing mail-in ballots.

• A state requires voters to provide a government-issued photo identification to prove their identity at the polls.

• A state uses precinct-based polling places instead of vote centers.

• A state requires voters to vote in their correct precinct to have their vote counted.^[103]

The point of these very realistic scenarios is not to compile an exhaustive list of such issues, it’s to demonstrate that many, many regulations that states make related to casting and counting a ballot could, in theory, lead to a denial or abridgment of voting rights. And the above list, which again, is by no means comprehensive, could easily be further sliced and diced. Take, for example, voter registration, where there could be variations such as a 30-day deadline, a 28-day deadline, a 15-day deadline, a 12-day deadline and so on. Put simply, the possibility to view electoral regulations as denying or abridging individual voting rights is seemingly endless and will need to be calculated to account for every single state’s unique electoral ecosystem.

Assume, though, that the Census Bureau clears that hurdle and compiles a list of practices that deny or abridge voting rights in the abstract. The obvious next question to be answered is how much denial or abridgement is being created by whatever legal barrier each state has in place. This will require the Census Bureau to make estimates about how many persons in each state are unable to vote because of, say, a voter registration deadline or how many persons in each state are unable to vote because of the mechanism used to identify voters at the polls or how many persons are unable to vote because they are not allowed to vote absentee. It’s probably possible to do this—one can typically find an expert who will purport to model^[104] and quantify just about anything—but how credible will these estimates be? The Census Bureau can barely come up with a semi-accurate count of just basic total population per state for reapportionment purposes,^[105] and the implementation of the Reduction Clause per order of a federal court will require the Census Bureau to add an additional and potentially much more complicated layer to the process. That does not seem wise.

Perhaps the Census Bureau could simplify the above process in some way by looking at voter registration rates or turnout rates in each of the states and using those rates as a proxy for representation reduction—but such an approach would also present difficulties. Voter registration lists are notoriously poor.^[106] And the fact that a person is registered to vote tells one very little about whether someone was actually able to cast a countable ballot. For instance, a registered voter might not have cast a ballot because of, say, too few opportunities to register their preference (e.g., no early voting, absentee voting, or vote-by-mail) or, say, a highly restrictive voter identification requirement. Using turnout data also has problems, as turnout is very much contingent on the nature of the election. Turnout may well be lower in places with less competitive elections and the lack of competitiveness of elections could have more to do with the candidates vying for office than with legal barriers to casting a ballot.^[107] And the top reasons why people do not vote generally have nothing to do with the direct impact of election laws.^[108] Indeed, election mechanics may not have a major impact on turnout.^[109]

Beyond devising a method to operationalize what amounts to denial or abridgement of voting rights under the Reduction Clause, there’s also the issue of who devises such a method. Census Bureau employees work for the Executive Branch and the Executive Branch contains partisan political actors who have the capability (and likely the inclination) to make partisan political decisions.^[110] So what we might predictably expect to happen if the Census Bureau undertakes this course of action is that decisions about categorizing electoral laws and estimating impact will be made in a partisan manner. In other words, depending on who is in power, Democrats will make judgments to advantage their reapportionment prospects and Republicans will make judgments to advantage their reapportionment prospects. It would almost be naïve to think otherwise, as the Census Bureau already faces accusations of partisanship from both sides.^[111] And then when the Census Bureau does make partisan decisions related to enforcement of the Reduction Clause, what’s the solution for that? More litigation in front of federal judges? And how much should we trust federal judges to be nonpartisan actors in all this?^[112]

To summarize, even if a federal court were to interpret the current statutory scheme as enabling the Executive Branch to issue data implementing the Reduction Clause, such a federal court order would be fraught with potential problems. The Census Bureau would need to do something that no entity has done in the more than 150-year history of the Clause^[113]—determine which laws deny or abridge voting rights and then determine how much such laws deny or abridge voting rights. And all of this would be done under the guidance of political actors within the Executive Branch who would certainly not be disinterested in the myriad of choices that could be made. Instead of the relative calm currently surrounding reapportionment, there would likely be a pitched political battle.

So, one way the judiciary could intervene to enforce the Reduction Clause would be to order the Executive Branch to produce data that accounts for the Clause pursuant to current federal statutory law, but there is another possible approach. Professor Gerard Magliocca does not think current federal statutory law allows the Executive Branch to implement the Reduction Clause.^[114] Instead, Professor Magliocca thinks “a state with standing to challenge the next round of reapportionment results should raise a Section Two [Reduction Clause] claim, and the Supreme Court should respond by holding that the present allocation system is unconstitutional.”^[115] Or, as he more simply puts it, the current reapportionment statutes “must be invalidated for violating Section Two of the Fourteenth Amendment.”^[116] The reason why Professor Magliocca thinks the statute is unconstitutional is unimportant at this point but will be discussed a bit in Part III—the important point for current purposes is that his proposal would completely pull the plug on the current process.

Professor Magliocca’s approach of throwing the entire compromise from the 1920s out the window would be strong medicine and amounts to an invitation to return to the chaos of the years preceding the compromise forged after the total failure to reapportion. Again, reapportionment was never a smooth process, and it eventually completely broke down in the 1920s. Congress forged a compromise to essentially put things on autopilot and that autopilot has functioned just as intended for decade upon decade. But after nearly a century of relative quiet, Professor Magliocca’s proposal would send the whole thing to the dumpster.^[117]

The judiciary should not throw out a process that has functioned untouched for decades, particularly in the context of our current political climate. Consider these words from Professor Pamela Karlan:

The United States . . . was a nation characterized by unease and polarization. Americans lacked “their former confidence in democracy or religion.” There was deep distrust between the growing and increasingly cosmopolitan cities and declining small towns in the Midwest and the South. [There was] a tension between “the new urban civilization with its irresistible economic and scientific and mass power” and “the older American village civilization making its last stand against what to it look[ed] like an alien invasion.” Traditionalists perceived a threat “from enclaves of the foreign-born, not yet adapted to American ways,” immigrants who seemed racially different from their predecessors. The urban-rural tensions played out in substantive differences over everything from morals legislation . . . to tax and trade policy.^[118]

Professor Karlan’s description sounds a lot like the current political climate in the United States. But she was actually describing the 1920s^[119]—the decade during which reapportionment did not happen at all.

So, Professor Magliocca’s approach would likely turn what has been a dormant political issue for decades into a very active political volcano at a time that seems remarkably similar to the moment when reapportionment ended in stalemate.^[120] And, even more, once the current process gets chucked for failure to implement the Reduction Clause, we return to the difficulties recounted above of implementing the never-used Clause.^[121] Again, this does not seem like a worthwhile endeavor.^[122]

Of course, all of the previous discussion might be incorrect. Reopening debate about the reapportionment formula or ordering the Census Bureau to recalculate reapportionment using the Reduction Clause or throwing the entire system out the window for failure to take account of the Clause might not create any issues. It could all end up as “champagne wishes and caviar dreams,” to quote an old television mantra.^[123] One must have the humility to admit that one can never know what future events might bring. That said, the problems and scenarios sketched out above seem much more likely than serene sailing.

Finally, none of this should be read as a contention that democratic enfranchisement is somehow perfect at this moment in time and that improvements to allow for greater potential enfranchisement should not be adopted. For example, at the current time, there may be far less justification for having lengthy pre-election voter registration deadlines or even any voter registration deadline at all. After all, voter registration deadlines might be among the single biggest legal barriers to electoral turnout.^[124] But such progress when it comes to voting rights should come in the form of direct legislation rather than indirect application of the Reduction Clause that has never been used even in times of far starker disfranchisement that exists in the twenty-first century United States.

When it comes to messing with the existing reapportionment process, we would be wise to consider the closing words of Justice John Paul Stevens from 1992 in Department of Commerce v. Montana, where the Court rejected a challenge to the current reapportionment formula:

The decision to adopt the [current reapportionment formula] was made by Congress after decades of experience, experimentation, and debate about the substance of the constitutional requirement. Independent scholars supported both the basic decision to adopt a regular procedure to be followed after each census and the particular decision to use the [current reapportionment formula]. For a half century the results of that method have been accepted by the States and the Nation. That history supports our conclusion that Congress had ample power to enact the statutory procedure in 1941 and to apply the [current reapportionment formula] after the 1990 Census.^[125]

Similarly, when it comes to implementation of the Reduction Clause, the judiciary would be wise to shy away from pulling the rug out from under something that has been “accepted by the States and the Nation” for decades upon decades.^[126]

IV. Strategies for the Judiciary to Avoid Messing with Reapportionment

Having opined that the judiciary should not mess with reapportionment from what might be described as a pragmatic perspective, this section embarks on a tour of some jurisprudential strategies the judiciary might employ to avoid entering the Reduction Clause political thicket. Importantly, the ideas and strategies put forward here are just that—ideas and strategies. Thus, this is written from a perspective that judicial lawmaking, when it comes to the Reduction Clause, is a place where judges have broad power to manipulate decision-making to arrive at just about any conclusion. When it comes to constitutional decision-making at the Supreme Court level, there often is no clearly right answer in a vacuum and lots of wiggle room. There are political choices to be made, and this section briefly theorizes some doctrinal avenues that might support a judicial choice to leave reapportionment alone.

The Political Questions Doctrine. One way the federal courts could avoid entering the thicket of Reduction Clause jurisprudence would be to employ the political questions doctrine.^[127] The political questions doctrine is a quite malleable tool involving many different facets with the basic doctrinal framework emanating from Baker v. Carr:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.^[128]

Prior to Baker, circuit courts held that issues surrounding the Reduction Clause amounted to a political question.^[129] For example, the plaintiffs in Saunders v. Wilkins, a lawsuit filed after the 1940 reapportionment, sought to enforce the Clause as a strategy to eliminate Virginia’s poll tax.^[130] In holding that enforcement of the Reduction Clause constituted a nonjusticiable political question, the Saunders court wrote:

[I]n determining whether a question is political and not justiciable, the dominant considerations are the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for judicial determination. It is our opinion that the question involved in the pending case, viewed from either aspect, will be seen to be political.^[131]

Even after Baker, one could plausibly contend that Reduction Clause litigation implicates virtually every factor listed in Baker.^[132] Consider as follows (where relevant factors from Baker are in quotes):

• There is evidence that the Framers intended Article I, Section Two to expressly provide Congress the exclusive authority to reapportion.^[133] And, adding to that notion, nobody seriously tried to enforce the Reduction Clause through the courts—despite widespread, obvious disfranchisement—for decades following its passage.^[134] These understandings and events could then be used to support the idea that when it comes to the Reduction Clause, there is a “textually demonstrable constitutional commitment of the issue to” Congress.^[135]

• In the many years reapportionment has occurred, the Judicial Branch has played, at most, a limited role in the reapportionment process, with the Supreme Court never intervening to undo any reapportionment on any ground.^[136] The judiciary entering the fray in Reduction Clause litigation could demonstrate a “lack of the respect due coordinate branches.”^[137] Indeed, reapportionment goes to the core of congressional operations—who gets to be seated in Congress.

• Invalidating a reapportionment and reverting to some other reapportionment, as has been requested as relief in the current federal litigation,^[138] could lead to “multifarious pronouncements by various departments on [the reapportionment] question.”^[139] The President has transmitted a finding to Congress and Congress, through the Clerk of the House, has transmitted to each state the amount of representation it has secured. A court would be undoing each of those pronouncements.

• Reapportionment might be a place where there is “an unusual need for unquestioning adherence to a political decision already made.”^[140] Reapportionment needs to happen quickly—before the election of the first Congress following the census—and if a court intervenes on Reduction Clause grounds, it risks delaying elections. Also, if a court invalidates a reapportionment after it has happened and after elections have occurred, that calls into question the legitimacy of Congress and potentially, depending on the timing, the legitimacy of a Presidential election because reapportionment impacts representation in the Electoral College.^[141]

But the core issues when it comes to the political questions doctrine and the Reduction Clause might be “a lack of judicially discoverable and manageable standards [and] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.”^[142] No one has been able to implement the Reduction Clause in the entirety of its history, so a court would have to make the policy decision as to how to implement the Clause. Why? Because it is likely that to have standing (see discussion below), a state would need to show it would get greater representation in Congress if the Clause were implemented. And in order for a state to show they would get additional representation, the state would have to come up with a method to implement the Clause that the judiciary would have to accept as valid for standing purposes.

Another thing to consider when it comes to judicially manageable standards is what might happen after a court declares a reapportionment invalid or tosses out the current reapportionment process. What happens if the Executive Branch and Congress do not, for whatever reason,^[143] follow through and implement the Reduction Clause? Would a court order the Executive or Congress to craft a new reapportionment? Would a court reinstate the previous reapportionment that, presumably, was also flawed? Or might a court order up its own Reduction Clause methodology and implementation the way courts draw redistricting plans when political actors cannot reach agreement on new district lines?^[144] As discussed previously, that could be quite a complex undertaking that would involve delving into the laws of all fifty states and making complex policy judgments about the impacts of various laws.^[145] Or, perhaps the Court might choose a simpler proxy (e.g., voter registration, turnout) to implement the Clause, but that would involve policy determinations as well.^[146]

To be sure, the Court has rejected resorting to the political questions doctrine in the context of a prior reapportionment challenge. In United States Department of Commerce v. Montana (discussed in Part II), the Court rejected the government’s contention that the choice of the reapportionment formula presented a nonjusticiable political question.^[147]

But Montana could be avoided. For starters, the analysis of the political questions doctrine in Montana is quite cursory, with the Court failing to engage in any sort of deep analysis of the issue.^[148] In essence, the Court’s discussion quickly waves its hand at the political questions issue and moves on to the merits of the case. Beyond the cursory analysis though, Montana contains language that could be used to cabin its holding. The Court noted that “the reasons that supported the justiciability of challenges to state legislative districts, as in Baker v. Carr . . . apply with equal force to the issues presented by this litigation.”^[149] Importantly, the issues presented in Montana did not involve the Reduction Clause. Moreover, the choice of a formula to determine fractional remainders in seats (the issue Montana presented) would seem to be far less complex than choices that would need to be made to implement the Reduction Clause. Thus, a court could distinguish Montana and make a more limited use of the political questions doctrine aimed expressly at the Reduction Clause rather than reapportionment generally.^[150] And limiting such a holding to the Reduction Clause context could make perfect sense given that the Clause was ratified at a different time than Article II.

In sum, legitimate arguments exist that litigation related to the Reduction Clause presents a nonjusticiable political question and no clear precedent rejects such a contention. Thus, the political questions doctrine provides one possibility for the federal judiciary to remain on the Reduction Clause sidelines.

Standing. The standing doctrine provides another avenue of jurisprudential avoidance. Here is the quintessential Supreme Court statement of standing doctrine:

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”^[151]

The standing doctrine could be used against individual plaintiffs by holding that any claims they bring would be too speculative. For example, assume an individual from Massachusetts brought litigation claiming that they reside in a state that would gain representation if Reduction Clause data were calculated. However, it’s quite possible that if Reduction Clause data were calculated, Massachusetts would not gain a seat. In this way, a court could reject the claim on standing grounds because the injury is speculative. Notably, this exact reasoning has previously been used by a federal court.^[152] Another potential litigant against whom standing could be used to reject their claim would be a person who claimed injury because they resided in a state, say Texas, that denied or abridged their voting rights. The argument would run that the Reduction Clause should be used to penalize the state denying or abridging voting rights, the penalty would lead to the state reforming its voting process, and that would lead to the individual being able to vote. But this theory as well could be rejected as speculative because it’s not entirely certain that the penalty would lead to reform, and a court has previously endorsed this sort of reasoning to avoid opining on the Reduction Clause.^[153]

When it comes to standing, the most likely scenario for a court to find standing would be for a state to bring the litigation.^[154] There does not appear to be a clear precedent related to the standing of a state to bring a lawsuit against the results of reapportionment. Montana discussed the political questions doctrine, but not standing.^[155] However, by reaching the merits of the claim, Montana could fairly be read as endorsing state standing so long as the state demonstrates it would gain a seat under a reapportionment conducted using the Reduction Clause.^[156]

But that would be the rub. To show that it would gain a seat through use of the Reduction Clause, the state would have to put forward an analysis of every state’s voting laws to demonstrate that a reapportionment properly using the Clause would produce new totals that would entitle the state to an additional seat. And once again, we end up in the position of attempting what would appear to be a herculean task of comprehensively categorizing the level of disfranchisement caused by the electoral regimes in each state, an exercise that would likely be fraught with guesswork and quite likely be speculative. Moreover, to assert that a state would gain representation if the Clause was considered, a court would have to choose a framework for implementing the Clause that would lead to the change in the state’s representation. This leaves the judiciary having to make Reduction Clause policy choices, mentioned in the political questions doctrine discussion, for the purpose of deciding standing.

Between the tenets of the political questions doctrine and standing, a court could basically create the following circle to preclude challenges to a reapportionment on Reduction Clause grounds: To have standing to challenge a reapportionment on Reduction Clause grounds, one has to show that one has been injured; to show one has been injured, one has to show that proper application of the Clause would result in a gain of a congressional seat; however, it is beyond a court’s judicial capability to decide how the Clause should be implemented; therefore, no one has standing to sue. Sure, it’s a circular argument that leads to no one being able to assert a claim, but a court interested in judicial avoidance might embrace such an argument.

The Merits. If a court did not choose to use the political questions doctrine or standing (or some combination of both) to avoid opining on Reduction Clause litigation, a court could potentially reach the merits to find a way out.

One escape hatch on the merits would be to find that the Reduction Clause was superseded by passage of the Fifteenth Amendment. In a comprehensive article, Professor Gabriel Chin contends that the Fifteenth Amendment repealed Section Two of the Fourteenth Amendment as it relates to voting rights.^[157] Without delving too far into the details and nuance, Professor Chin’s basic argument is that the Reduction Clause was a failure.^[158] To cure this failure, Congress passed the Fifteenth Amendment that more broadly protected voting rights.^[159] And the broader protection found in the Fifteenth Amendment renders the Reduction Clause a dead letter.^[160] Of course, this theory is not without its counterarguments and doubters,^[161] but it’s a plausible avenue for a court to take.

Another escape hatch for a court to take on the merits of a lawsuit seeking to compel the Executive Branch to account for the Reduction Clause, would be to say that the statutory scheme does not allow the Executive Branch to do so. Recall that there is disagreement among scholars about whether the statute delegates such authority to the Executive Branch.^[162] Without such a delegation, a court would likely not be able to order the Executive Branch to produce data that accounted for the Clause.

Finally, assuming a court was presented with a challenge to the process itself (as opposed to a challenge seeking to have the Census Bureau produce data related to the Reduction Clause), the court could hold that the process complies with the Constitution. The idea that the process itself is unconstitutional relies on the fact that Congress has delegated to the Executive Branch a mandate to generate reapportionment data but has not concomitantly delegated the ability to consider the Clause.^[163] The idea is essentially that Congress has ordered the Executive Branch to not comply with a provision of the Constitution.

In replying to this contention, one could note that implementation of the reapportionment process does not cease with the President’s transmission of data to Congress. After the President’s transmission to Congress, the Clerk of the House of Representatives still must issue certificates to the states that provide them with notice of the number of seats to which they are entitled.^[164] A court might determine that the window of time between which the President sends the reapportionment results to Congress and the time the House Clerk issues certificates to the states provides Congress the opportunity to consider and apply the Reduction Clause. After all, the existing statute contemplates that the current process can be short-circuited by a new reapportionment act.^[165] Put another way, it’s perfectly legitimate for Congress to delegate to the Executive Branch the calculation of reapportionment data without accounting for the Clause and reserve for itself the question of implementing the Clause. And, if this is the situation, then a court could uphold the process and conclude that a given Congress’s decision not to implement the Reduction Clause in that window is a reasonable choice—especially given the fact that no Congress in history has implemented the Clause. Granted, this may appear formalistic but again, the point of this discussion is to locate potential methods of judicial avoidance, not necessarily a perfect one.

At the end of the day, a number of different potential avenues exist for a court to not mess with reapportionment. Some arguments may be stronger, some arguments may be weaker. And it seems likely even more arguments exist than have been mentioned in the relatively quick tour above. (Of course, there will undoubtedly be credible counterarguments.) In the end though, adoption of the most credible argument (or arguments) from the perspective of not messing with reapportionment would be the optimal judicial approach.

V. Conclusion

Reapportionment was a thorn in the side of Congress for many years and ultimately became so thorny that Congress was unable to reapportion for an entire decade in the 1920s. After that debacle, Congress created a system to make the reapportionment process much smoother. Historically, the judiciary has generally not been much of a player when it comes to reapportionment, so we should reject calls for changing the process or using the judiciary to compel the use of a constitutional provision, the Reduction Clause, that has not been implemented in its more than 150-year history. Democracy in the United States is certainly imperfect but the reapportionment process and judicial meddling with the process should not be contemplated as the vehicle for change. Reapportionment, though perhaps not ideal, is working just fine. Don’t mess with reapportionment.

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1. U.S. Const. art. I, § 2 (original constitutional provision related to reapportionment); id. amend. XIV, § 2 (post-Civil War amendment to reapportionment process); id. art. II, § 1 (“Each State shall appoint . . . a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in Congress.”).

2. See, e.g., Press Release, U.S. Census Bureau, U.S. Census Bureau Releases 2020 Undercount and Overcount Rates by State and the District of Columbia (May 19, 2022), https://www.census.gov/newsroom/press-releases/2022/pes-2020-undercount-overcount-by-state.html [https://perma.cc/BU39-P7Q3] (describing inaccuracies in the 2020 census counts); Thomas Wolf et al., Improving the Census, Brennan Ctr. for Just. 4 (Sept. 13, 2022), https://www.brennancenter.org/our-work/policy-solutions/improving-census [https://perma.cc/8AWL-PDG7] (describing “depressed response rates across the board, escalating costs, hindrances due to natural disasters, and outmoded questionnaire formats, among other problems” with the census).

3. 2 U.S.C. § 2a(a) (“On the first day, or within one week thereafter, of the first regular session of the Eighty-second Congress and of each fifth Congress thereafter, the President shall transmit to the Congress a statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained under the seventeenth and each subsequent decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member.”).

4. 2 U.S.C. § 2a(b) (“Each State shall be entitled, in the Eighty-third Congress and in each Congress thereafter until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in the statement required by subsection (a) of this section, no State to receive less than one Member. It shall be the duty of the Clerk of the House of Representatives, within fifteen calendar days after the receipt of such statement, to send to the executive of each State a certificate of the number of Representatives to which such State is entitled under this section. In case of a vacancy in the office of Clerk, or of his absence or inability to discharge this duty, then such duty shall devolve upon the Sergeant at Arms of the House of Representatives.”).

5. This is the end of the story for reapportionment. The redistricting fun is yet to come!

6. See infra text accompanying notes 24–36.

7. Id.

8. See infra notes 37–39 and accompanying text.

9. . Charles W. Eagles, Democracy Delayed: Congressional Reapportionment and Urban-Rural Conflict in the 1920s 117 (1990) (“After the 1929 law and its amendment in 1941, the regular reapportionment of the House of Representative has proceeded without much controversy or public notice.”).

10. See generally Ruoxi Li, The Malapportionment of the US House of Representatives: 1940–2020, 55 PS: Pol. Sci. & Pol. 647 (2022).

11. U.S. Const. amend. XIV, § 2. This Article uses “Reduction Clause” to describe the provision of the Fourteenth Amendment that allows for the reduction of representation because that is the descriptor used in briefs recently filed by the federal government. See, e.g., Defendants’ Motion to Dismiss at 4, Citizens for Const. Integrity v. Census Bureau, 669 F. Supp. 3d 28 (D.D.C. 2023) (No. 1:21-cv-03045). Others though, may describe the provision as the “Penalty Clause.” See, e.g., Delaram Takyar, Recent Development, “The Cornerstone of the Stability of Our Government”: The Forgotten Penalty Clause and Electoral Reform in the Aftermath of the 2020 Election, Yale L. & Pol’y Rev.: Inter Alia, June 2021, at 1, 4, https://yalelawandpolicy.org/sites/default/files/IA/39_ia_takyar-the_forgotten_penalty_clause.pdf [https://perma.cc/E5Q6-YPVD].

12. See Michael Hurta, Note, Counting the Right to Vote in the Next Census: Reviving Section Two of the Fourteenth Amendment, 94 Tex. L. Rev. 147, 170–72 (2015).

13. See generally Gerard N. Magliocca, Our Unconstitutional Reapportionment Process, 86 Geo. Wash. L. Rev. 774 (2018).

14. See, e.g., Michel L. Balinski & H. Peyton Young, Fair Representation: Meeting the Ideal of One Man, One Vote 85–87 (2d ed. 2001) (contending that there is another formula superior to the current formula used for reapportionment); Arthur Earl Bonfield, The Right to Vote and Judicial Enforcement of Section Two of the Fourteenth Amendment, 46 Cornell L.Q. 108, 122 (1960) (asserting that the reapportionment statute is “clearly unconstitutional”); Eugene Sidney Bayer, Note, The Apportionment Section of the Fourteenth Amendment: A Neglected Weapon for Defense of the Voting Rights of Southern Negroes, 16 W. Rsrv. L. Rev. 965, 989–90 (1965) (contending that the reapportionment statute was unconstitutional for failure to account for the Fourteenth Amendment).

15. Fourteen Section Two: A Case for Democracy, https://www.fourteensectiontwofilm.com [https://perma.cc/ZHP2-PQXX] (last visited Apr. 12, 2024). Historically there has been some, though not much, litigation involving the Reduction Clause—most notably in the 1960s. See infra notes 58–60 and accompanying text.

16. Citizens for Const. Integrity v. Census Bureau, 669 F. Supp. 3d 28, 31 (D.D.C. 2023).

17. Reapportionment cases are heard by three-judge federal district court panels with any appeal going directly to the U.S. Supreme Court. 28 U.S.C. § 2284 (three-judge panel); 28 U.S.C. § 1253 (appeal to U.S. Supreme Court).

18. See infra text accompanying notes 33–38.

19. See infra text accompanying notes 40–42.

20. Franita Tolson, What Is Abridgment?: A Critique of Two Section Twos, 67 Ala. L. Rev. 433, 457 (2015); Bonfield, supra note 14, at 134–35; Joshua Geltzer, The Lost 110 Words of Our Constitution, Politico (Feb. 23, 2020, 7:00 AM), https://www.politico.com/news/magazine/2020/02/23/the-lost-constitutional-tool-to-protect-voting-rights-116612 [https://perma.cc/8MUN-7MLT]; see infra text accompanying notes 51–59.

21. U.S. Const. art. I, § 2 (“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the state of New Hampshire shall be entitled to [choose] three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York [sic] six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.”).

22. This somewhat simplified hypothetical ignores the requirement that each state receive at least one representative. U.S. Const. art. I, § 2.

23. Balinski & Young, supra note 14, at 1 (“The difficulty [with apportionment] is what to do about the fractions. This has vexed both mathematicians and politicians for hundreds of years.”).

24. An understanding of the picayune mathematical details of the various reapportionment methods is not necessary for purposes of this Article. For those who are interested, the Census Bureau has a website dedicated to describing the approaches and providing examples of how they operate. See Methods of Apportionment, U.S. Census Bureau, https://www.census.gov/history/www/reference/apportionment/methods_of_apportionment.html [https://perma.cc/R2Q3-RY6G] (last visited Dec. 14, 2023).

25. U.S. Dep’t of Com. v. Montana, 503 U.S. 442, 448–50 (1992).

26. Balinski & Young, supra note 14, at 13 (attributing to Jefferson the “idea of dropping fractions”); Montana, 503 U.S. at 449.

27. Eagles, supra note 9, at 25–26 (“Jefferson’s method involving rejected fractions was used in 1792 and in the following four reapportionments.”).

28. Id. at 26 (noting that Congress adopted a reapportionment formula championed by Daniel Webster in 1842).

29. Balinski & Young, supra note 14, at 32 (describing the Webster method).

30. The Hamilton method is also sometimes known as the Vinton method because Representative Samuel F. Vinton was the person who introduced the bill providing for reapportionment following the 1850 Census. Id. at 37 (“‘Vinton’s [m]ethod of 1850’ was enacted and remained formally on the books into the twentieth century . . . . It was nothing other than Hamilton’s method.”); Eagles, supra note 9, at 27 (“In enacting Vinton’s bill, Congress also incorporated a revived version of Alexander Hamilton’s procedure for distributing seats among the states.”).

31. Balinski & Young, supra note 14, at 17 (describing the Hamilton method).

32. Eagles, supra note 9, at 30–31 (noting that the Webster method “received congressional endorsement and finally prevailed over the Vinton and Hamilton procedures” in 1911).

33. Id. at 24 (“In the very first presidential veto, Washington rejected the reapportionment bill . . . .”).

34. Id. at 31.

35. Balinski & Young, supra note 14, at 1–2.

36. Franklin v. Massachusetts, 505 U.S. 788, 791 (1992) (“The delegates to the Constitutional Convention included the periodic census requirement in order to ensure that entrenched interests in Congress did not stall or thwart needed reapportionment. Their effort was only partially successful, as the congressional bat-tles [sic] over the method for calculating the reapportionment still caused delays.”) (citation omitted); Eagles, supra note 9, at 21 (“The decade-long stalemate over reapportionment [in the 1920s] marked the culmination of over a century of recurrent controversy over the composition of the House of Representatives.”). For a sprightly discussion of reapportionment history from the Founding to 1910, see George G. Szpiro, Numbers Rule: The Vexing Mathematics of Democracy, from Plato to the Present 119–33 (2010).

37. Eagles, supra note 9, at 116; Balinski & Young, supra note 14, at 51 (“[There were] a series of apportionment bills in the 1920s, all of which came to naught. In the end the 1911 apportionment stood for the entire decade and there was to be no apportionment based on the 1920 census—in direct violation of the Constitution.”).

38. As Charles Eagles wrote:

    In every instance [during the first thirteen reapportionments], however, Congress managed to enact a reapportionment law within two years of the completion of the census. Sometimes the laws were amended and frequently the laws dissatisfied some, but the Congress did fulfill its apparent constitutional obligation every ten years. The pattern broke after the 1920 census.

    Eagles, supra note 9, at 31.

39. Eagles, supra note 9, at 116–17. Interestingly, there does not appear to have been any litigation related to Congress’s failure to reapportion in the 1920s. Id. at 116.

40. Reapportionment Act of 1929, Pub. L. No. 71-13, 46 Stat. 21; Hurta, supra note 12, at 167 (“[I]n 1920, Congress failed in its constitutional duty to actually reapportion congressional seats. Consequently, Congress passed the Act of June 18, 1929 to create an automatic apportionment system that provides the basic mechanisms the country uses to reapportion congressional seats today.”) (footnote omitted). For a detailed discussion of the events leading to passage of the 1929 Act, see Eagles, supra note 9, at 62–84.

41. Act of Nov. 15, 1941, Pub. L. No. 77-291, 55 Stat. 761–62. The difference between the 1929 and 1941 legislation was that the former allowed for the computation of reapportionment using several different methods but defaulted to the most recently used method. Reapportionment Act of 1929, Pub. L. No. 71-13, 46 Stat. 21, 26–27. The 1941 legislation chose a single method—the method of equal proportions. 55 Stat. at 761–62.

42. 2 U.S.C. § 2a(a). The method of equal proportions is also commonly referred to as “Huntington-Hill’s method.” Li, supra note 10, at 647.

43. U.S. Const. amend. XIV, § 2 (footnote omitted).

44. U.S. Const. amend. XIV, § 2.

45. U.S. Const. art. I, § 2; Hurta, supra note 12, at 151–52 (“From the moment any legislation looking like the second section of the Fourteenth Amendment emerged, everyone knew that Congress and its Republican majority sought a solution to one special problem: the political effects that freeing slaves would have on congressional representation.”).

46. Magliocca, supra note 13, at 784; Travis Crum, Reconstructing Racially Polarized Voting, 70 Duke L.J. 261, 300 (2020) (“Despite losing the Civil War, White southerners’ political power would have been amplified at the federal level.”).

47. Franita Tolson, The Constitutional Structure of Voting Rights Enforcement, 89 Wash. L. Rev. 379, 405 (2014) (“The Framers of the Fourteenth Amendment drafted section 2 to address a unique problem presented by the abolition of slavery: the conquered South’s representation in the House would increase by at least fifteen seats even if, as expected, southern states would deny the franchise to African-Americans.”).

48. Magliocca, supra note 13, at 784–85. See also Hurta, supra note 12, at 152 (“[T]he South would have gained about fifteen new seats in the House of Representatives after the passage of the Thirteenth Amendment. And without the votes of freedmen in those states, Republicans believed that this representation change would give Democrats a strong chance of immediately winning the House and even competing for the presidency. To avoid this result, congressional Republicans fought to reduce Southern States’ representation if the freed slaves were not allowed to vote.”) (footnotes omitted).

49. Magliocca, supra note 13, at 787–88. See also George David Zuckerman, A Consideration of the History and Present Status of Section 2 of the Fourteenth Amendment, 30 Fordham L. Rev. 93, 111 (1961).

50. Magliocca, supra note 13, at 788.

51. Id. at 789 (“After extended discussion, Congress concluded that Section Two should not apply to the [post-1870] reapportionment.”).

52. 2 U.S.C. § 6; Act of Feb. 2, 1872, ch. 11, § 6, 17. Stat. 28, 29; Ben Margolis, Judicial Enforcement of Section 2 of the Fourteenth Amendment, 23 L. Transition 128, 128–29, 152 (1963) (“The single statute adopted by Congress with relation to [the Reduction Clause] has remained nothing more than a declaration of principle.”).

53. Magliocca, supra note 13, at 789 (“[T]he census deleted the Section Two questions from the 1880 enumeration instructions and never asked them again.”).

54. Id. at 789–90 (“During the next four reapportionments [following 1870], Section Two was largely ignored by Congress. The exception was 1901, when a House resolution was introduced that would have required the Census Bureau to inform Congress how many adult male citizens there were and how many of them were denied suffrage . . . . The resolution was not adopted, but the issue was discussed at some length on the floor.”); Tolson, supra note 20, at 474–77 (providing a detailed account of debate related to the Reduction Clause during the reapportionment of 1901).

55. Eagles, supra note 9, at 34 (“[T]he idea [of applying the Fourteenth Amendment to southern states] received its strongest support from Representative George Holden Tinkham.”); Magliocca, supra note 13, at 790–91 (noting how Tinkham introduced several amendments relating to the Reduction Clause over an eight-year period).

56. Eagles, supra note 9, at 34–37, 46–48, 52, 63, 71, 80.

57. Id. at 34, 78, 80 (describing the final defeat of Tinkham’s decade-long effort).

58. Lampkin v. Connor, 239 F. Supp. 757, 765–66 (D.D.C. 1965) (discussing the debate surrounding Title VIII and its Reduction Clause implications); Magliocca, supra note 13, at 791–94.

59. Lampkin, 239 F. Supp. at 758–59; Lampkin v. Connor, 360 F.2d 505, 511 & n.13 (D.C. Cir. 1966) (noting that the complaint in the case was filed two years prior to the passage of the Voting Rights Act of 1965). Around the same time, the Second Circuit also rejected a challenge to the census form for its failure to ask questions related to the Reduction Clause. United States v. Sharrow, 309 F.2d 77, 78–80 (2d Cir. 1962).

60. Lampkin, 360 F.2d at 511–12 (upholding the district court’s dismissal of the complaint while noting that “some considerable latitude would still seem to exist [prior to the 1970 reapportionment] for appraisal of the effectiveness of the new Voting Rights Act, before appellants turn in desperation once more to the indirect sanction they believe to be imbedded in Section 2 of the Fourteenth Amendment.”); Magliocca, supra note 13, at 796–97.

61. See, e.g., Saunders v. Wilkins, 152 F.2d 235, 236, 238 (4th Cir. 1945) (declaring a challenge using the Reduction Clause to involve a nonjusticiable political question); Dennis v. United States, 171 F.2d 986, 988, 993 (D.C. Cir. 1948) (describing as “sheer nonsense” an attempt to use the Reduction Clause as a means to collaterally attack a criminal conviction for failing to answer a congressional subpoena). See also Mark R. Killenbeck & Steve Sheppard, Another Such Victory? Term Limits, Section 2 of the Fourteenth Amendment, and the Right to Representation, 45 Hastings L.J. 1121, 1184 (1994) (noting that courts have generally treated Section Two of the Fourteenth Amendment as “a provision that posed problems best avoided”).

62. Memorandum of Law in Support of Defendants’ Motion to Dismiss at 1, Citizens for Const. Integrity v. Census Bureau, 669 F. Supp. 3d 28 (D.D.C. 2023) (No. 1:21-cv-03045); see Geltzer, supra note 20.

63. U.S. Dep’t of Com. v. Montana, 503 U.S. 442, 464–65 (1992).

64. Id. at 446.

65. Id. at 446, 455–56.

66. Id. at 446–47.

67. Id. at 466.

68. Id. at 458–59.

69. Id. at 442, 464–66.

70. Id. at 443.

71. Franklin v. Massachusetts, 505 U.S. 788, 806 (1992).

72. Id. at 795–96.

73. Id. at 796, 806.

74. See supra notes 45–48 and accompanying text.

75. See supra text accompanying note 49.

76. See, e.g., Tolson, supra note 20, at 474; Bonfield, supra note 14, at 113; Geltzer, supra note 20; see supra text accompanying notes 49–60.

77. Li, supra note 10, at 650.

78. Id. For a description of the Webster method and its use by Congress, see supra notes 28–30 and accompanying text.

79. See Li, supra note 10, at 649.

80. . Richard L. Hasen, The Voting Wars: From Florida 2000 to the Next Election Meltdown 4, 31, 40 (2012).

81. To be sure, over the long haul, it’s not certain that favoring small over large states or vice versa would have a clear benefit to one political party or another. Large states can be Republican (Texas) or Democratic (California); small states come in different political persuasions as well (Wyoming versus Rhode Island). However, in the short term there certainly could be political implications. For instance, Professor Li estimated that a change in formula from the current formula to the Webster method for the 2010 reapportionment would have led to a seat going from the very Democratic Rhode Island to the Republican-leaning North Carolina. Li, supra note 10, at 653.

82. Balinski & Young, supra note 14, at 57–58 (describing how “[p]olitical expediency” that provided Democrats with an additional seat in Democratic Arkansas rather than Republican Michigan, led to the adoption of the current formula).

83. See Elizabeth Kolbert, How Politics Got So Polarized, New Yorker (Dec. 27, 2021), https://www.newyorker.com/magazine/2022/01/03/how-politics-got-so-polarized [https://perma.cc/F245-RM56]; Alexander George Theodoridis, The Hyper-Polarization of America, Sci. Am. (Nov. 7, 2016), https://blogs.scientificamerican.com/guest-blog/the-hyper-polarization-of-america/ [https://perma.cc/2MN2-BBS7].

84. Li, supra note 10, at 652 (stating that “the current reapportionment method is demonstrably biased against more populous states,” but that the issue “has received surprisingly little attention”).

85. See, e.g., Colegrove v. Green, 328 U.S. 549, 557 (1946) (detailing the gross malapportionment of Illinois’s congressional districts).

86. Baker v. Carr, 369 U.S. 186, 209–10 (1962); see On This Day, Supreme Court Reviews Redistricting, Nat’l Const. Ctr. (Mar. 26, 2023), https://constitutioncenter.org/blog/on-this-day-supreme-court-reviews-redistricting [https://perma.cc/CKC8-G6WX] (discussing that after Baker was decided, there was significant redistricting activity nationwide).

87. Balinski & Young, supra note 14, at 84–85; Li, supra note 10, at 647, 649 (noting that there is an “inevitable tradeoff” when it comes to criteria for selecting a reapportionment formula and that “it is not possible for an apportionment method to satisfy [every] criteria”).

88. Balinski & Young, supra note 14, at 58, 60–61 (describing and defining divisor methods).

89. See id. at 46–59 (discussing various methods and how they differ in consistently biasing smaller versus larger states).

90. Id. at 58–59 (discussing Congress’s selection of the current formula); U.S. Dep’t of Com. v. Montana, 503 U.S. 442, 452 & n.26 (1992) (describing the five methods Congress considered).

91. Li, supra note 10, at 649 (“Congress believed [in 1941] that Huntington-Hill’s method was both a consistent method and the least biased method in its category of divisor methods.”); Montana, 503 U.S. at 455 (“[I]n comparison with the other four methods considered, this [chosen] method occupied an intermediate position in terms of favoring small States over large States.”).

92. See supra note 82 and accompanying text.

93. Li, supra note 10, at 653 (“Mathematically, Webster’s method is the only unbiased divisor method and, therefore, the best candidate to achieve proportional representation.”).

94. Id. (table showing difference in results between the Webster method and the Huntington-Hill method for reapportionments from 1940 to 2020).

95. The biggest difference a switch to the Webster method would have made for any reapportionment from 1940 to 2020 would have been two seats (i.e., two states losing a seat and two states gaining a seat). Id. (table showing results in 1970 and 2020).

96. Id. at 652–53 (“If history is any indication, it would take tremendous political will to accomplish what some would consider a long-overdue task: that is, to replace the current biased apportionment method, Huntington-Hill’s, with the only unbiased method, Webster’s.”).

97. Amended Complaint at 23–24, Citizens for Const. Integrity v. Census Bureau, 669 F. Supp. 3d 28 (D.D.C. 2023) (No. 1:21-cv-03045).

98. Compare Hurta, supra note 12, at 166–70 (arguing Congress bestowed Reduction Clause power to the Executive Branch), with Magliocca, supra note 13, at 799–800 (opposing Hurta’s interpretation). See also Lampkin v. Connor, 239 F. Supp. 757, 764–66 (D.D.C. 1965) (rejecting the argument that the Executive Branch has statutory authority to implement the Reduction Clause).

99. Hurta, supra note 12, at 166 (“[T]he Secretary of Commerce, who is responsible for the Census Bureau, already has the statutory authority to [enforce the Reduction Clause].”) (internal footnote omitted).

100. The basic argument runs as follows: Federal law requires the Secretary of Commerce to tabulate total population of the states “as required for the apportionment of Representatives in Congress.” Id. at 167 (citing 13 U.S.C. § 141(b) (2012)) (emphasis omitted). Given this broad statutory language that is not self-defining, one can use the history of the first attempted implementation of the Reduction Clause, the legislative history surrounding the 1929 compromise that ended the reapportionment stalemate of the 1920s, and subsequent legislative enactments to conclude that federal law currently allows the Executive Branch to tabulate data that implements the Reduction Clause. Id. at 167–70. Therefore, the judiciary could (and should) order the Executive Branch to tabulate such data. Id. at 170–73.

101. See supra note 43 and accompanying text, for the language of the Reduction Clause.

102. Hurta, supra note 12, at 155 (“The word ‘abridged’ was included in every draft of Section Two, but its importance was almost never discussed.”). Professor Michael Morley has advocated for a narrow reading of the language from the Reduction Clause. See generally Michael T. Morley, Remedial Equilibration and the Right to Vote Under Section 2 of the Fourteenth Amendment, 2015 U. Chi. Legal F. 279 (2015).

103. Note the absence of felon disfranchisement laws from the list. This absence is due to the Supreme Court’s holding that Section Two of the Fourteenth Amendment itself allows felon disfranchisement laws to be implemented by the states. See Richardson v. Ramirez, 418 U.S. 24, 54 (1974). For a contrary view that the Reduction Clause can be applied to felon disfranchisement, see Katherine Shaw, Invoking the Penalty: How Florida’s Felon Disenfranchisement Law Violates the Constitutional Requirement of Population Equality in Congressional Representation, and What to Do About It, 100 Nw. U. L. Rev. 1439, 1461, 1472 (2006).

104. For a good, balanced discussion of models and their potential flaws, see Erica Thompson, Escape from Model Land (2022).

105. Press Release, supra note 2 (detailing overcount and undercounts of fourteen state populations that ranged from –5.04% to +6.79%); see also Li, supra note 10, at 647 (“[I]t [is] likely that the 2020 Census undercounted minorities and immigrants . . . for reasons ranging from the inherent bias of the enumeration method . . . to the negative impact of the COVID-19 pandemic.”).

106. Voter Registration, MIT Election Data + Sci. Lab, https://electionlab.mit.edu/research/voter-registration [https://perma.cc/HE9K-XUMG] (last updated Mar. 15, 2022) (describing issues with the accuracy of voter registration rolls noting, among other things, that nine states have more registered voters than voting age population).

107. André Blais, What Affects Voter Turnout?, 9 Ann. Rev. Pol. Sci. 111, 122 (2006) (“We can confidently say that . . . turnout increases in closely contested elections.”).

108. Knight Found., The 100 Million Project: The Untold Story of American Non-Voters 8 (2020), https://knightfoundation.org/wp-content/uploads/2020/02/The-100-Million-Project_KF_Report_2020.pdf [https://perma.cc/6XT9-RWGH] (listing as the top reasons why voters do not engage in the act of casting a ballot as “[d]on’t like the candidates,” “[v]ote doesn’t matter,” “[o]ther,” “[d]on’t know the candidates,” “[n]o time for voting,” “[n]ot interested,” and “[t]he system is corrupt”).

109. How Much Do America’s Voting-Access Reforms Affect Turnout?, Economist (Oct. 24, 2022), https://www.economist.com/the-economist-explains/2022/10/24/how-much-do-americas-voting-access-reforms-affect-turnout [https://perma.cc/Q2Z4-4PXZ] (noting that many of the most controversial laws may not have much of an impact on turnout); Voter Turnout, MIT Election Data + Sci. Lab, https://electionlab.mit.edu/research/voter-turnout [https://perma.cc/6PJN-QWHF] (last updated Apr. 28, 2021) (“Can particular election reforms such as Election Day registration, vote-by-mail, early voting, photo ID, etc., have an effect on voter turnout? Research results in most of these areas have been mixed at best.”).

110. See, e.g., Michael J. Pitts, Defining “Partisan” Law Enforcement, 18 Stan. L & Pol’y Rev. 324, 332 (2007) (discussing accusations of partisan law enforcement related to voting rights in the Department of Justice Civil Rights Division); Hurta, supra note 12, at 166.

111. See Hans A. von Spakovsky, The Federal Gov’s Bungled Census Is Bad News for Red States. Here’s Why, The Heritage Found. (Sept. 6, 2022), https://www.heritage.org/election-integrity/commentary/the-federal-govs-bungled-census-bad-news-red-states-heres-why [https://perma.cc/Z22J-2SMV] (noting the “funny coincidence” that census statistics released by the Biden Administration for reapportionment purposes systematically advantaged Democratic-leaning states); Miriam Jordan, New Findings Detail Trump Plan to Use Census for Partisan Gain, N.Y. Times (July 20, 2022), https://www.nytimes.com/2022/07/20/us/census-citizenship-question-oversight.html [https://perma.cc/PK2S-D8LL] (accusing the Trump Administration of partisanship with regard to the census). Admittedly, one could argue that the census is already politicized, and if so, who cares if implementation of the Reduction Clause is politicized? But use of the Reduction Clause would add another layer of partisan warfare and another potential layer of manipulation for partisans.

112. See Adam B. Cox & Thomas J. Miles, Judging the Voting Rights Act, 108 Colum. L. Rev. 1, 18, 21 (2008) (finding a high correlation between political affiliation of the judge and decisions in cases involving Section Two of the Voting Rights Act); cf. Michael S. Kang & Joanna M. Shepherd, The Long Shadow of Bush v. Gore: Judicial Partisanship in Election Cases, 68 Stan. L. Rev. 1411, 1426–27 (2016) (finding partisan decision-making by state court judges in election law cases).

113. As Professor Franita Tolson wryly observed, “Section 2 of the Fourteenth Amendment has the unfortunate privilege of being dead as long as it has been alive.” Tolson, supra note 20, at 434.

114. Magliocca, supra note 13, at 799–800.

     The problem with Hurta’s salvage attempt is that 2 U.S.C. § 2a(a) makes clear that total population means the “whole number of persons in each state, excluding Indians not taxed.” This language comes from the first sentence in Section Two and not from the penalty provision. Another way to reach Hurta’s conclusion would be to say that “total population” must be read in light of Congress’s codification of the penalty clause of Section Two in 1872. A more logical conclusion is that the Reapportionment Act implicitly repealed that codification by establishing a process that did not mention Section Two. Even assuming that no implicit repeal occurred, the codification is now unconstitutional because of the statute’s use of men over the age of twenty-one (rather than men and women over the age of eighteen) as the relevant baseline for presumptive voters. Id. (footnotes omitted).

115. Id. at 778.

116. Id. at 797.

117. We’d need a bigger dumpster. Cheekface, We Need a Bigger Dumpster, on Too Much to Ask (Self-Released 2022).

118. Pamela S. Karlan, Reapportionment, Nonapportionment, and Recovering Some Lost History of One-Person, One-Vote, 59 Wm. & Mary L. Rev. 1921, 1935 (2018) (footnotes omitted).

119. Id.

120. To be fair, Professor Magliocca does recognize the potential for disruption to “the well-oiled reapportionment process for no purpose.” Magliocca, supra note 13, at 802.

121. Again, to be fair, it is not entirely clear that Professor Magliocca envisions the Reduction Clause actually being used. Id. (allowing that his proposal could be “pointless formalism”). However, it would not make much sense to force Congress to devise a new statute if the Reduction Clause was not going to have any substantive impact.

122. There is also another reason not to reopen reapportionment. If reapportionment debate leads to another front in the voting wars and the Court creates another voting war, it is possible that it will be yet another contribution to public disenchantment with both the state of the union and our governing institutions, including the Supreme Court. While I am skeptical about arguments related to public confidence—for instance, one person’s terrible Supreme Court opinion is another person’s ideal ruling—it seems unlikely that continued partisan fighting spurred by court order is likely to lead to greater overall positive sentiment about our political system.

123. Robin Leach, Lifestyles of the Rich and Famous, Youtube (Feb. 6. 1994), https://www.youtube.com/watch?v=TIzo9PtHbMM [https://perma.cc/X93G-GE3C].

124. Stephen Ansolabehere & David M. Konisky, The Introduction of Voter Registration and Its Effect on Turnout, 14 Pol. Analysis 83, 83–84, 91, 97 (2006) (noting that “[a]n extensive scholarly literature identifies registration as a substantial barrier to voting” and finding that voter registration reduces turnout by three to five percentage points); see also How Much Do America’s Voting-Access Reforms Affect Turnout?, supra note 109 (noting that “making it easier to register to vote” might be “the reform that would most improve turnout”). Again, felon disfranchisement provisions are omitted from this discussion because those would seem to not be a part of the Reduction Clause analysis. See supra note 103.

125. U.S. Dep’t of Com. v. Montana, 503 U.S. 442, 443, 465–66 (1992) (footnotes omitted).

126. Id. at 465–66.

127. See, e.g., Rucho v. Common Cause, 139 S. Ct. 2484, 2506–07 (2019) (using the political questions doctrine to avoid adjudicating partisan gerrymandering claims).

128. Baker v. Carr, 369 U.S. 186, 217 (1962).

129. See, e.g., Saunders v. Wilkins, 152 F.2d 235, 238 (4th Cir. 1945); Dennis v. United States, 171 F.2d 986, 993 (D.C. Cir. 1948). Prior to Baker, at least one legal commentator also suggested reapportionment in general represented a political question. Zechariah Chafee, Jr., Congressional Reapportionment, 42 Harv. L. Rev. 1015, 1019 (1929).

130. Saunders, 152 F.2d at 236–37.

131. Id. at 238. The D.C. Circuit also held in the 1940s that the Reduction Clause represented a political question largely justifying its decision on the language from Saunders. Dennis, 171 F.2d at 993.

132. Unsurprisingly, there are counterarguments that the Baker factors lead to the conclusion that the Reduction Clause constitutes a political question. See Margolis, supra note 52, at 130–41 (analyzing each Baker factor and other political question tests to determine that enforcing the Reduction Clause would not be a political question).

133. Brief for Appellants at 17–18, Dep’t of Com. v. Montana, 503 U.S. 442 (1992) (No. 91-860). Notably, Chief Justice John Roberts appeared as a lawyer on the government’s brief. Id. at 29.

134. Bonfield, supra note 14, at 108, 122 (noting in the early 1960s that the “second section of the fourteenth amendment is one of the few provisions of the Constitution which no one has seriously attempted to enforce through judicial action”).

135. Baker v. Carr, 369 U.S. 186, 217 (1962). See Brief for Appellants, supra note 133, at 26.

136. See supra note 62 and accompanying text.

137. Baker, 369 U.S. at 217.

138. See supra note 97 and accompanying text.

139. Baker, 369 U.S. at 217.

140. Id.

141. See supra note 1 and accompanying text.

142. Baker, 369 U.S. at 217.

143. It is possible that the Executive Branch could just refuse to implement the Reduction Clause or, if the entire statutory scheme is declared unconstitutional, Congress deadlocks on passing a new statute.

144. See, e.g., League of United Lat. Am. Citizens v. Perry, 548 U.S. 399, 408–09, 411 (2006) (Kennedy, J., plurality opinion) (describing how a federal court drew districts for Texas after Republicans and Democrats could not agree on a plan).

145. See supra notes 103–06 and accompanying text.

146. See supra text accompanying note 104–06.

147. U.S. Dep’t of Com. v. Montana, 503 U.S. 442, 456–59; see supra text accompanying notes 63–68.

148. Montana, 503 U.S. at 459 (noting that the Court did not have “the need for another exploration of the Baker factors”).

149. Id. at 458 (emphasis added).

150. To be fair, as with many Supreme Court opinions, some language in Montana points to a broader interpretation that would reject application of the political questions doctrine in all contexts related to reapportionment. Id. at 458 (“[T]he interpretation of the apportionment provisions of the Constitution is well within the competence of the Judiciary.”) (emphasis added). But recall the discussion in this part is premised on the idea that there is wide berth for the courts do to whatever they want in this context.

151. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (alterations in original) (footnotes omitted) (citations omitted).

152. See Lampkin v. Connor, 239 F. Supp. 757, 759–62 (D.D.C. 1965) (rejecting as speculative the claims of citizens from states that might have gained seats upon implementation of the Reduction Clause). In Lampkin v. Connor, plaintiffs sought a declaratory judgment against the Commerce Secretary and Census Director to compel them to produce data related to the abridgment and denial of voting rights for reapportionment purposes, and in the alternative, to declare the entire statutory scheme of reapportionment unconstitutional if it did not require the defendants to compile such data. Id. at 758–59. Thus, the litigation squarely presented both theories that have been recently resuscitated and were discussed. See supra Part II. In a similar vein, a federal lower court recently ruled that a plaintiff bringing a Reduction Clause claim lacked standing because of a failure to show their injury was traceable to the challenged conduct of defendant. Citizens for Const. Integrity v. Census Bureau, 669 F. Supp. 3d 28, 34–35 (D.D.C. 2023). This was because the plaintiff (which was a group with members residing in New York, Pennsylvania, and Virginia) could not show that the states in which they resided would have received additional representation if the Reduction Clause had been implemented. Id. at 30, 34–35. Because this decision was based on standing grounds, the plaintiffs have appealed the decision to the D.C. Circuit. See generally Plaintiff’s Notice of Appeal, Citizens for Const. Integrity v. Census Bureau, No. 1:21-cv-03045 (D.C. Cir. June 19, 2023).

153. Lampkin, 239 F. Supp. at 762 (“To consider whether those conditions would be removed if the relief sought here were granted would be to engage in a conjectural exercise that could not bring about that certainty required for standing to sue.”). See also Magliocca, supra note 13, at 800 (“An individual voter or group of voters, for instance, probably lacks standing to bring an action that is tantamount to an abstract claim that a portion of the Constitution is not being followed.”); Morley, supra note 102, at 293 (“Because there is no guarantee that either the threat or imposition of a reduction in representation would compel the state to acquiesce and permit the plaintiff to vote, the plaintiff would lack standing to seek such relief.”).

154. Magliocca, supra note 13, at 801 (“While Montana did not discuss standing, the Court’s decision to reach the merits in that case is best read to mean that a state with a plausible claim that a valid reapportionment could have given that state an extra representative has standing to bring a constitutional challenge to the process.”).

155. See U.S. Dep’t of Com. v. Montana, 503 U.S. 442, 456–59 (1992).

156. It could be argued that the Reduction Clause should not lead to any state gaining representation—only a state losing representation that it could then earn back by reforming its ways. See Bonfield, supra note 14, at 120–21 (arguing that imposition of the Reduction Clause penalty could be “capable of imposition or amelioration at any time”—not just during the initial reapportionment). This theory might then erase the ability of a state to contend it had standing because it stood to gain a seat.

157. Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 259, 316 (2004).

158. Id.

159. See id. at 274–75.

160. Id. at 316.

161. See, e.g., Bonfield, supra note 14, at 114 (“The language of the fifteenth amendment in no way indicates or suggests any adverse effects by it on the fourteenth.”) (footnotes omitted).

162. See supra note 98 and accompanying text.

163. Magliocca, supra note 13, at 776–77. Section Two cannot be considered because the modern reapportionment statutes do not include a variable that permits consideration of that provision—only population figures may be used. It is axiomatic that a federal statute cannot override a constitutional command, but that is precisely what the reapportionment statutes do by omitting any reference to Section Two of the Fourteenth Amendment. Current state voting regulations may not require the imposition of a Section Two penalty, but Congress cannot say—as current law does—that no penalty may ever be imposed pursuant to the authority delegated to the executive branch. Put another way, Section Two says that there is an exception to using total population figures to reapportion representatives under certain conditions, but the reapportionment statute says there is no such exception. Id. (footnotes omitted).

164. 2 U.S.C. § 2a(b).

165. Id. (“Each State shall be entitled, in the Eighty-third Congress and in each Congress thereafter until the taking effect of a reapportionment under this section or subsequent statute . . . .”) (emphasis added).