Citizens for Constitutional Integrity v. Census Bureau

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 11, 2024 Decided September 10, 2024
No. 23-5140
CITIZENS FOR CONSTITUTIONAL INTEGRITY,
APPELLANT
v.
CENSUS BUREAU, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-03045)
Jared S. Pettinato argued the cause and filed the briefs for
appellant.
Sarah J. Clark, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Mark B. Stern and Michael S. Raab, Attorneys.
Anna O. Mohan, Attorney, entered an appearance.
Before: SRINIVASAN, Chief Judge, WILKINS and CHILDS,
Circuit Judges.

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Opinion for the Court filed by Circuit Judge WILKINS.
Concurring opinion filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Section 2 of the Fourteenth
Amendment, which specifies that seats in the House of
Representatives “shall be apportioned among the several States
according to their respective numbers,” also provides that the
“basis of representation” for the apportionment of
representatives to any state “shall be reduced” proportionately
“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, being
twenty-one years of age, and citizens of the United States, or in
any way abridged.” U.S. CONST. amend. XIV, § 2.1 This
constitutional provision, dubbed the Reduction Clause or the
Penalty Clause, has been historically neglected save for a
handful of efforts by members of Congress and intrepid
plaintiffs to enforce it. See George David Zuckerman, A
Consideration of the History and Present Status of Section 2 of
the Fourteenth Amendment, 30 FORDHAM L. REV. 93, 107–24
(1961); see also Lampkin v. Connor, 360 F.2d 505 (D.C. Cir.
1966).
Enter Appellant Citizens for Constitutional Integrity
(“Citizens”), a non-profit organization with members in New
York, Pennsylvania, and Virginia. Seeking to enforce the
1 “[T]he reference in this provision to ‘male inhabitants . . . being
twenty-one years of age’ has been superseded by the Nineteenth and
Twenty-sixth Amendments” and the provision is read to encompass
those that are “eligible” to vote now. Evenwel v. Abbott, 578 U.S.
54, 102 n.7 (2016) (Alito, J., concurring in judgment) (emphasis in
original).

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Reduction Clause, Citizens sued the Census Bureau, the
Department of Commerce, the Secretary of Commerce (the
“Secretary”), in her official capacity, and the Census Bureau
Director, in his official capacity, (hereinafter referred to
together as the “Bureau”) over their collective failure to
proportionately reduce the basis of representation for each of
the 50 states when tabulating 2020 Census data in order to
calculate the apportionment of representatives as part of the
Bureau’s statutorily mandated report to the President. In its
complaint, Citizens asserted an Administrative Procedure Act
(“APA”) claim and a mandamus claim, alleging that the
Bureau, by ignoring the Reduction Clause in the apportionment
calculations that it turned over to the President, flouted its
constitutional and attendant statutory responsibilities;
unconstitutionally deprived New York, Pennsylvania, and
Virginia of congressional representation; and impermissibly
diluted the power of Citizens’s members in those states.
A three-judge panel in the District Court dismissed
Citizens’s challenge for lack of standing. Citizens now
appeals that ruling. Because Citizens is unable to establish that
its vote dilution injury is traceable to the alleged deficiencies
in the Secretary’s report, it is necessarily unable to establish
Article III standing with respect to that injury. Accordingly,
we affirm.
I.
A.
Representatives are apportioned “among the several
[s]tates” according to the “actual [e]numeration[,]” or
population, for each state. U.S. CONST. art. I, § 2. Specifically,
Article I, Section 2 of the Constitution provides that the number
of representatives “shall be determined by adding to the whole
Number of free Persons, including those bound to Service for

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a Term of Years, and excluding Indians not taxed, three fifths
of all other Persons.” Id. The aforementioned “other persons”
was a euphemism for persons of African descent, who were
only fractionally represented in the House of Representatives
because the framers of the original Constitution “view[ed]
them in the mix[ed] character of persons and of property,” THE
FEDERALIST NO. 54, at 276 (James Madison) (Bantam Books
1982), and did not consider them worthy of United States
citizenship, see Dred Scott v. Sandford, 60 U.S. 393, 419–20
(1857). Following the Civil War, Congress passed the
Fourteenth Amendment to declare that all persons born in the
United States, including those of African descent, are United
States citizens, U.S. CONST. amend. XIV, § 1, and to provide
“adequate security for future peace and safety” before the
Confederate states were to be again “entitled to representation”
in Congress, J. COMM. ON RECONSTRUCTION, 39TH CONG., 1ST.
SESS., REP. OF J. COMM. ON RECONSTRUCTION 15 (Comm. Print
1866). Section 2 of the Fourteenth Amendment modified the
then-existing apportionment procedure in Article I, including
its ignominious three-fifths clause, providing the following in
full:
Representatives shall be apportioned among the
several States according to their respective
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 offices
of a State, or the members of the Legislature
thereof, is denied to any of the male inhabitants
of such State, being twenty-one years of age,
and citizens of the United States, or in any way
abridged, except for participation in rebellion,

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or other crime, the basis 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.
U.S. CONST. amend. XIV, § 2; see Evenwel, 576 U.S. at 102
n.7 (Alito, J., concurring in judgment).
Today, the “actual [e]numeration” of the apportionment
population is ascertained through the decennial census, which
is administered by Congress in the manner that body by law
directs. U.S. CONST. art. I, § 2. Congress, in turn, has delegated
the census administration responsibility to the Secretary with
broad implementation discretion. 13 U.S.C. § 141(a). Once
the decennial census is complete, the Secretary is charged with
“tabulat[ing] . . . [the] total population by States under [Section
141(a)] as required for the apportionment of Representatives,”
to be “reported by the Secretary to the President of the United
States.” 13 U.S.C. § 141(b). The President then “transmit[s]
to the Congress a statement showing the whole number of
persons in each State . . . as ascertained under the . . . decennial
census” 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.” 2 U.S.C. § 2a(a).
Congress set the number of Representatives at 435 in the
Apportionment Act of 1911. Act of Aug. 8, 1911, Pub. L. No.
62–5, §§ 1–4, 37 Stat. 13–14 (1911). The calculation of the
apportionment of those 435 seats occurs in two steps. First, per
the Constitution, each state receives one seat, leaving 385 seats
to be distributed. U.S. CONST. art. 1, § 2. Second, “seats 51
through 435” are awarded according to the method of equal
proportions, which is a “mathematically determined priority

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listing of states . . . . [that] results in a listing of the states
according to a priority value—calculated by dividing the
population of each state by the geometric mean of its current
and next seats.” About Congressional Apportionment, U.S.
CENSUS BUREAU (Nov. 22, 2021),
https://www.census.gov/topics/public-sector/congressional-
apportionment/about.html [perma.cc/6465-FARL]. That
method works by first calculating the multipliers for each
additional seat—where the second seat multiplier is 1
√2(2−1) or
.70710678, the third seat multiplier is 1
√3(3−1) or .40824829,
the fourth seat multiplier is 1
√4(4−1) or .288675134, and so on—
until the appropriate number of multipliers have been
calculated. Computing Apportionment, U.S. CENSUS BUREAU
(Nov. 22, 2021), https://www.census.gov/topics/public-
sector/congressional-apportionment/about/computing.html
[perma.cc/WKH6-HDRF]. These multipliers are then each
multiplied by the total apportionment population for each of the
50 states, which results in a list of “priority values” that are then
ordered from highest to lowest value. Id. Finally, the
remaining seats are assigned according to the resulting priority
values, starting with the 51st seat, until all remaining seats are
assigned.2 Id.
2 The 2020 Census apportionment provides a concrete example of
how the method of equal proportions works. For the 2020
apportionment, the Bureau assigned the 51st seat to California
because, after multiplying the second seat multiplier (.70710678) by
California’s apportionment population, the priority value
(27984993.2520723) was higher than any other state’s priority value
in the list. A. 57. The Bureau then assigned the 52nd seat to Texas
after multiplying the second seat multiplier by Texas’s
apportionment population, which resulted in a priority value of
20635702.2563336. Id. The Bureau then assigned the 53rd seat to

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B.
On April 26, 2021, in accordance with Section 141(b), the
Secretary sent President Biden a statement showing the
“apportionment population for each of the 50 states on April 1,
2020” (the “Report”), as ascertained by the 2020 Census.
A. 165. The Report listed three values for each state: (1) the
apportionment population, (2) the number of apportioned
representatives based on the 2020 Census and calculated
according to the method of equal proportions, and (3) the
change in apportioned representatives between the 2020
apportionment and the previous apportionment based on the
2010 Census. Compared to the 2010 apportionment, the 2020
apportionment reduced the number of representative seats for
New York and Pennsylvania by one each and maintained the
same number of seats for Virginia.
Nearly six months after the Secretary sent the President the
Report, Citizens sued the Bureau on behalf of its members in
New York, Pennsylvania, and Virginia to challenge the
issuance of the Report, theorizing that, by failing to
proportionately “discount . . . [the] basis of representation” for
each state based on the number of voters denied access to the
vote by voter registration and voter identification laws, the
Bureau had unconstitutionally deprived voters in those three
states of congressional representation and diluted the power of
Citizens’s members in those same three states. A. 146.
Citizens raised two claims in connection with this theory. In
the first, Citizens alleged that the Bureau’s issuance of the
Report to the President was arbitrary, capricious, and otherwise
California because the priority value (16157143.3873536) that
resulted from multiplying the third seat multiplier (.40824829) by
California’s apportionment population was still higher than any other
state’s apportionment population multiplied by the second seat
multiplier. Id.

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contrary to law in violation of the APA because, in failing to
implement the Reduction Clause, the Bureau had failed to
“consider an important aspect of the problem” or otherwise
misinterpreted the law. Id. (quoting Motor Vehicle Mfrs.’
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983)). In the second, Citizens urged that the Bureau’s
alleged Fourteenth Amendment violation compelled a writ of
mandamus to remedy its injury.
To support its theory of injury, Citizens submitted a
declaration from a data scientist “that purported to demonstrate
what apportionment would look like if the Bureau had
accounted for state voter-registration requirements and voter-
ID laws.” Citizens for Const. Integrity v. Census Bureau, 669
F. Supp. 3d 28, 33 (D.D.C. 2023). To show this, the declarant
calculated the distribution of seats in the House of
Representatives that would have followed if the basis of
representation for different states had been adjusted to account
for certain populations denied access to the vote because of
such laws and requirements. The first scenario tested the
declarant’s algorithm by replicating the Bureau’s application
of the method of equal proportions in the Report and resulted
in an exact replication of the 2020 Census apportionment
count. The second scenario replaced the actual population
enumeration from the 2020 Census the Bureau had used for the
apportionment population value with a “basis of
representation” value. A. 46. The declarant calculated the
latter value by multiplying “the proportion of citizens who can
vote”—which the declarant calculated as a ratio of citizens that
can vote and citizens who cannot register because of a criminal
conviction to the total number of citizens—and “the Census’s
actually enumerated population statistic.” Id. In that scenario,
as compared to the Report, New York lost a seat, Pennsylvania
received the same number of seats, and Virginia gained a seat.
For the third scenario, the declarant kept almost all values from

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the first scenario but only replaced the value the Bureau used
for Wisconsin with a basis of representation that reduced the
“proportion of citizens who can vote” based on the number of
people the declarant determined had been disenfranchised by
the state’s voter photo identification law. In the third scenario,
the declarant found Wisconsin would have lost a seat while
New York would have gained a seat. Finally, for the fourth
scenario, the declarant mimicked his calculation for the second
scenario but also reduced Wisconsin’s basis of representation
alone based on the number of voters impacted by the state’s
voter photo identification law. In this last scenario, the
declarant concluded that Wisconsin and New York each would
have lost a seat, but Pennsylvania and Virginia each would
have gained a seat.
The District Court panel dismissed Citizens’s challenge
for lack of Article III standing. Citizens for Const. Integrity,
669 F. Supp. 3d at 30. The panel concluded that Citizens fell
short of demonstrating an injury that was traceable to the
Bureau’s failure to apply the Reduction Clause. Id. To satisfy
the traceability requirement, the District Court explained,
Citizens needed to “show that their states would have had an
additional representative but for the government’s error.” Id.
at 32. On the District Court’s read, “pointing out the
government’s alleged failure to follow the Reduction Clause”
was not enough because that, without more, “does not mean
that a corrected recount would lead to an apportionment more
favorable to the plaintiff.” Id. The District Court further found
the data scientist’s declaration unpersuasive because it did not
“even attempt to approximate the number of citizens in each
state who have been disenfranchised by voter-ID
requirements” and “fail[ed] to provide [the District Court] with
a scenario that illustrates what apportionment might look like
if Citizens’s legal theory is correct.” Id. at 33.

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Responding to Citizens’s argument below that it need not
“show what apportionment would look like under its legal
theory” because the traceability and redressability
requirements are relaxed in procedural rights cases, id. at 34,
the District Court held that the Reduction Clause does not
establish a procedural right to which Citizens is entitled or for
which Citizens’s required showing for traceability or
redressability would be relaxed, id. at 35.
Citizens timely appealed, raising three arguments. It
argues, first, that it demonstrated a concrete vote dilution
injury. Next, it contends that the Report caused that injury.
Finally, it urges that it has proven that a new Report could
redress its injury, particularly under the relaxed procedural
injury standing burden for traceability and redressability.
Citizens invoked the subject matter jurisdiction of the District
Court pursuant to 28 U.S.C. §§ 1331 and 1361, as well as the
Act of November 26, 1997, Pub. L. No. 105-119, § 209, 111
Stat. 2440, 2481. We review the District Court’s dismissal for
lack of standing de novo. Arpaio v. Obama, 797 F.3d 11, 19
(D.C. Cir. 2015).
II.
In general, the “irreducible constitutional minimum of
[Article III] standing” requires a plaintiff to demonstrate: “(1)
an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.” Spokeo, Inc. v. Robins,
578 U.S. 330, 338 (2016) (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992)). “To establish injury in fact, a
plaintiff must show that he or she suffered ‘an invasion of a
legally protected interest’ that is ‘concrete and particularized’
and ‘actual or imminent, not conjectural or hypothetical.’” Id.

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at 339 (quoting Lujan, 504 U.S. at 560). We address each of
Citizens’s claims in turn.
A.
i.
Taking the first claim first, Citizens challenged the
Bureau’s issuance of the Report before the District Court under
three different sections of the APA: Section 706(2)(A), which
permits us to set aside agency action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” 5 U.S.C. § 706(2)(A); Section
706(2)(B), which permits us to do the same when an agency
action is “contrary to constitutional right, power, privilege, or
immunity,” id. § 706(2)(B); and, finally, Section 706(2)(D),
which instructs us to set aside agency action found to be
“without observance by procedure required by law,” id.
§ 706(2)(D). See A. 137, 147. On appeal, Citizens homes in
on Section 706(2)(D) in particular to assert that, where an
agency fails to observe a “procedure required by law,” there is
a “procedural right to [levy a] claim [against] an agency.”
Appellant’s Br. at 19 (emphasis in original).
Classifying this action as a procedural-rights case is
important to Citizens because, in such cases, “[a] litigant may
establish Article III jurisdiction without meeting the usual
‘standards for redressability and immediacy.’” Dep’t of Educ.
v. Brown, 600 U.S. 551, 561 (2023) (quoting Lujan, 504 U.S.
at 572 n.7); see also Ctr. for Biological Diversity v. Env’t Prot.
Agency, 861 F.3d 174, 182 (D.C. Cir. 2017) (“In a case alleging
a procedural injury, we ‘relax the redressability and imminence
requirements’ for standing.” (quoting WildEarth Guardians v.
Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013))). Plaintiffs in
procedural-rights cases may proceed under the relaxed

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standard when “a statute affords [the] litigant ‘a procedural
right to protect his concrete interests.’” Brown, 600 U.S. at 561
(quoting Lujan, 504 U.S. at 572 n.7). Usually, this standard is
applied in cases where a plaintiff has pleaded a procedural
injury, and thus “must show both (1) that their procedural right
has been violated, and (2) that the violation of that right has
resulted in an invasion of their concrete and particularized
interest” in order to demonstrate their procedural injury meets
Article III muster. Ctr. for Law & Educ. v. Dep’t of Educ., 396
F.3d 1152, 1159 (D.C. Cir. 2005) (emphasis in original). Here,
however, the typical two-step procedural injury inquiry is
irrelevant because we are not being asked to determine whether
Citizens’s claimed procedural injury suffices as an injury for
Article III purposes; instead, since Citizens’s claimed vote
dilution injury is substantive, we are being asked to determine
whether the procedural deficiency Citizens alleges transforms
this action into a procedural-rights case.
We hold that it does not. There is no established test in
this Circuit for determining whether a claimed right is
procedural or not, but the inquiry for ascertaining whether a
rule qualifies for the APA’s “procedural exception” to notice
and comment requirements is instructive here. AFL-CIO v.
NLRB, 57 F.4th 1023, 1034 (D.C. Cir. 2023); see 5 U.S.C.
§ 553(b)(A). Under that inquiry, “[w]e treat rules as procedural
if they are ‘primarily directed toward improving the efficient
and effective operations of an agency.’” AFL-CIO, 57 F.4th at
1034 (quoting Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C.
Cir. 2014)). “The critical feature” of a procedural rule “is that
it covers agency actions that do not themselves alter the rights
or interests of parties, although it may alter the manner in which
the parties present themselves or their viewpoints to the
agency.” Id. (quoting James V. Hurson Assocs., Inc. v.
Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000)). A rule that
imposes “substantive burden[s],” Am. Hosp. Ass’n v. Bowen,

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834 F.2d 1037, 1052 (D.C. Cir. 1987), “encodes a substantive
value judgment,” Pub. Citizen v. Dep’t of State, 276 F.3d 634,
640 (D.C. Cir. 2002) (quoting Am. Hosp. Ass’n, 834 F.2d at
1047), “trenches on substantial private rights [or] interests,”
Mendoza, 754 F.3d at 1023 (quoting Batterton v. Marshall, 648
F.2d 694, 708 (D.C. Cir. 1980)), or otherwise “alter[s] the
rights or interests of the parties,” Nat’l Min. Ass’n v. McCarthy,
758 F.3d 243, 250 (D.C. Cir. 2014) (quoting Glickman, 229
F.3d at 280), is not procedural for Section 553 purposes. See
AFL-CIO, 57 F.4th at 1034–35.
Adopting here the qualifications used to determine
whether a rule is procedural, we cannot categorize Citizens’s
challenge as concerning a procedural right. The “agency
action” that Citizens challenges is the Bureau’s issuance of the
Report. The heart of that challenge is substantive; Citizens
does not challenge the issuance of the Report from an
“operation[al]” standpoint, AFL-CIO, 57 F.4th at 1034, but
instead goes after the Bureau’s alleged failure to take certain
substantive considerations into account when conducting the
analysis for the Report, which analysis involves “substantive
value judgment[s],” Pub. Citizen, 276 F.3d at 640. Moreover,
Citizens’s claimed vote dilution injury itself is a concession
that the organization’s concern about the Report is related to its
impact on “the rights and interests” of the organization and its
members. AFL-CIO, 57 F.4th at 1034.
Our conclusion is consistent with the reasoning of the
Court in National Association of Home Builders v. Defenders
of Wildlife. 551 U.S. 644 (2007). There, the Court construed
Section 7(a)(2) of the Endangered Species Act, which provides
that “[e]ach Federal agency shall, in consultation with and with
the assistance of the Secretary . . . insure that any action
authorized, funded, or carried out by such agency . . . is not
likely to jeopardize” endangered or threatened species or their

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habitats. Id. at 652 (quoting 16 U.S.C. § 1536(a)(2)). In doing
so, the Court explained that the language of Section 7(a)(2)
requiring agency “consultation” with the Secretary was a
procedural requirement, while the language requiring the
agency to “insure that any action . . . is not likely to jeopardize”
an endangered species was “substantive.” Id. at 661–62; see
also id. at 667 (Section 7(a)(2) “imposes a substantive (and not
just a procedural) statutory requirement”); id. at 693 n.13
(Stevens, J., dissenting) (agreeing that Section 7(a)(2) of the
Endangered Species Act contains a “substantive requirement”).
The substantive nature of Citizens’s challenge is further
betrayed by the cases it cites in its complaint, all of which
concern review of substantive agency actions. First, Citizens
alleges that the Bureau violated the APA by failing to
“implement the Fourteenth Amendment,” A. 146, and cites to
State Farm for its disapproval of agency action caused by an
agency that “entirely failed to consider an important aspect of
the problem,” 463 U.S. at 43. But in that case, the Supreme
Court held that failure to consider an “important aspect of the
problem” was cause for a court to deem an “agency
rule . . . arbitrary and capricious.” Id. Arbitrary and capricious
review under Section 706(2)(A) is inherently designed for
review of substantive agency actions and, by relying on State
Farm, Citizens functionally concedes that review of the
substantive content of the Report is what the organization
seeks.
Next, Citizens relies on NLRB v. Brown, 380 U.S. 278
(1965), and SEC v. Chenery, 318 U.S. 80 (1943), to support its
allegation that the Bureau’s “misinterpret[ation]” of the
Fourteenth Amendment violates the APA. A. 146. In NLRB v.
Brown, however, the Supreme Court concluded that courts
must “set aside . . . decisions which rest on an erroneous legal
foundation” as part of its reasoning in reviewing a substantive

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agency determination about whether a party’s conduct
“carried . . . [the] badge of improper motive.” 380 U.S. 278,
292 (1965) (internal quotation omitted). Similarly, the
Chenery declaration that “an order may not stand if the agency
has misconceived the law” was made as part of concluding that
judicial review of agency conduct “requires that the grounds
upon which the administrative agency acted [be] . . . clearly
disclosed and adequately sustained”—a plea for agencies to
make plain their substantive bases for decisionmaking. 318
U.S. 80, 94 (1943).
ii.
Citizens is adamant that it presents a procedural-rights
challenge that should be evaluated under the relaxed Article III
standard. The organization objects to the District Court’s
holding that Citizens was “never entitled to a procedure” under
the Reduction Clause, calling the determination erroneous
because the District Court failed to apply the zone of interests
test. Appellant’s Br. 47 (quoting Citizens for Const. Integrity,
669 F. Supp. 3d at 35) (emphasis in original). Citizens’s
argument, however, is unpersuasive because it demands
application of the wrong test.
We employ the zone of interests test, which asks whether
a plaintiff’s alleged injuries “are ‘arguably within the zone of
interests to be protected or regulated by the statute,’” to
ascertain whether the plaintiff may raise a particular claim.
CSL Plasma Inc. v. U.S. Customs & Border Protection,
33 F.4th 584, 589 (D.C. Cir. 2022) (quoting Match-E-Be-Nash-
She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S.
209, 224 (2012)); see also Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 127 (2014) (“Whether a
plaintiff comes within ‘the zone of interests’ is an issue that
requires us to determine, using traditional tools of statutory

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interpretation, whether a legislatively conferred cause of action
encompasses a particular plaintiff’s claim.” (citation omitted)).
“[This] is a merits issue, not a jurisdictional one.” CSL Plasma,
33 F.4th at 586. Whether an injury is attendant to the violation
of a procedural right, however, is connected to the Article III
standing injury inquiry—a “threshold [jurisdictional] question”
that relies on a separate assessment, as described above. Warth
v. Seldin, 422 U.S. 490, 498 (1975).
Moreover, Lexmark, which marked a sea change in how
courts delineate between Article III standing and “standing” to
raise a cause of action, bolsters the distinction between the
Article III standing inquiry and the zone of interests test. In
that case, the Supreme Court, as Citizens acknowledges,
applied the zone of interests test to determine whether plaintiffs
“ha[d] a cause of action under the statute,” 572 U.S. at 128, and
also, importantly, recognized that “the absence of a valid (as
opposed to arguable) cause of action does not implicate
subject-matter jurisdiction, i.e., the court’s statutory or
constitutional power to adjudicate the case,” id. at 128 n.4
(citation omitted). The remaining cases Citizens cites in
support of this argument predate Lexmark and so are largely
unhelpful for Citizens’s point.
B.
i.
Having established that this is not a procedural-rights case
that relaxes the Article III traceability and redressability
requirements, we next consider whether Citizens has
established traceability under the regular Article III standards.
We conclude that it has not.

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Traceability requires a showing “that the [alleged] injury
was likely caused by the defendant.” TransUnion LLC v.
Ramirez, 594 U.S. 413, 423 (2021). If a plaintiff cannot show
that the government’s action or inaction is “causally connected
to the plaintiff’s injury,” they cannot demonstrate Article III
standing. California v. Texas, 593 U.S. 659, 660 (2021); see
also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103
(1998). To establish traceability for a vote dilution injury
occasioned by an apportionment calculation based on a faulty
analysis or “inaccurate data,” Franklin v. Massachusetts, 505
U.S. 788, 802 (1992) (plurality), a plaintiff must show the
relevant population was improperly counted “by the [chosen]
methodology as compared to a feasible, alternative
methodology,” Nat’l Law Ctr. on Homelessness & Poverty v.
Kantor, 91 F.3d 178, 183 (D.C. Cir. 1996) (emphasis in
original) (citing Franklin, 505 U.S. at 802 (plurality)).
Citizens’s traceability showing fails because it has not
shown that the populations of New York, Pennsylvania, and
Virginia were improperly counted “by the [chosen]
methodology as compared to a feasible, alternative
methodology.” Kantor, 91 F.3d at 183 (emphasis omitted); see
also Franklin, 505 U.S. at 802 (plurality). The methods it does
present in its declaration, which Citizens says show that “the
2020 [C]ensus harmed” Citizens’s members “by taking seats
from their states,” Appellant’s Br. 23, are not feasible
alternative approaches. There is one scenario in which New
York gained a seat, and another, separate scenario in which
Pennsylvania and Virginia gained a seat, but those scenarios
are not feasible because the declaration only accounted for
Wisconsin’s voter identification laws and not any voter
registration or voter identification laws that are or may have
been in force in New York, Pennsylvania, or Virginia. See A.
50, 52. By omitting any information about the voting rights
landscape in these states, we are left to speculate whether voter

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18
identification laws in New York, Pennsylvania, or Virginia, if
accounted for in the apportionment calculation, would have
revealed that those states were entitled to any more seats than
the Report assigned them. Citizens’s allegations of traceability
are thus not plausible because they are premised on a selective
enforcement of the Reduction Clause with respect to only one
state—Wisconsin—whereas, in reality, New York,
Pennsylvania, and Virginia could also be affected if their voter
registration and voter identification laws were scrutinized in
the same manner. Cf. Bush v. Gore, 531 U.S. 98, 110 (2000)
(halting the vote recount ordered by the Florida Supreme Court
because it lacked even “some assurance that the rudimentary
requirements of equal treatment and fundamental fairness”
would be satisfied).
ii.
Citizens counters that its members would not have
suffered a vote-dilution injury “[b]ut-for” the Report.
Appellant’s Br. 36. On its read, the fact that the law requires
(1) the Secretary to send a report to the President that includes
the apportionment population, (2) the President to send a
statement to Congress with the total population and the number
of Representatives to which each State would be entitled, and
(3) each state to be entitled to the number of Representatives
shown in the President’s statement, establishes Citizens’s
injury is traceable to the Report. To be sure, the causal chain
Citizens lays out describes how an injury could be caused by a
report on the apportionment population from the Secretary in
the abstract. The problem Citizens faces, however, is that its
factual allegations are not enough to establish that there is a
comparable “feasible, alternative methodology” that would
have produced a different result. Kantor, 91 F.3d at 183.
Because Citizens, as explained, did not take into account the
voter registration and voter identification laws of New York,

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19
Pennsylvania, or Virginia, Citizens has failed to provide that
kind of “feasible, alternative methodology.” Without the entire
story before us we cannot conclude from Citizens’s allegations
that its injury is plausibly connected to the Bureau’s failure to
incorporate the Reduction Clause into its methodology.
Citizens further urges that Kantor does not apply here
because that case did not involve a plaintiff asserting that a new
agency action reduced their states’ apportionment compared to
the prior apportionment. Instead, Citizens asserts that Swann
v. Adams, 385 U.S. 440 (1967), controls the test for
malapportionment standing, and reads it to only require a
plaintiff to provide a plan “that [is] . . . closer to the legal ideal
than” the existing plan. Appellant’s Br. 64. Swann, however,
concerned the degree of population variation in state legislative
district apportionment that was constitutionally permissible
and has no discernible bearing on Citizens’s Fourteenth
Amendment apportionment claims, upon which the holding in
Kantor was based.
Next, Citizens contends that all that is necessary to prove
traceability is recognizing that the Report reduces the seat
allocation for New York and Pennsylvania. Citizens compares
itself to the plaintiff in U.S. Dep’t of Commerce v. Montana,
503 U.S. 442 (1992), to support its point. In that case, the State
of Montana challenged the constitutionality of the method of
equal proportions and the Supreme Court considered “[t]he
application of the method of equal proportions to the 1990
census [to have] caused . . . 13 States to lose” seats in the
House of Representatives. Id. at 445. Citizens is correct that
it alleges a vote dilution injury and that the Report recorded the
reduction in the seat allocations for New York and
Pennsylvania. See Appellant’s Br. 37. But this case diverges
from Montana. There, the plaintiff challenged a wrongly
implemented formula and so could more easily trace the injury

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20
to that formula. Montana’s evidence demonstrated that it
would have received an additional representative if the Bureau
had used its preferred method of apportionment rather than the
method of equal proportions. Id. at 460–61. Thus, Montana
clearly proved traceability based on its claim that the Bureau
was required to employ the alternative method of
apportionment. Here, while the Report reduces the seat
allocation for New York and Pennsylvania, that does not
meaningfully demonstrate that another methodology that
incorporated the Reduction Clause would have, if uniformly
applied, rendered a different result.
Finally, and more generally, Citizens goes for the Hail
Mary, arguing that it is inherently entitled to standing because
it challenges the Secretary’s census methodology. To make
this argument, Citizens relies on Utah v. Evans, which held that
Utah had standing to challenge the Secretary’s 2000 Census
methodology as legally improper. See 536 U.S. 452, 460–61
(2002). Utah, however, is not helpful to Citizens because, in
that case, the Court noted that the parties agreed that the
challenged census practice (referred to as “imputation”) caused
Utah to receive one less Representative than it would have
received if the practice had not been used. Id. at 458. In other
words, the evidence in Utah demonstrated traceability in a
manner not present here.
Since we dispose of this claim on traceability grounds, we
need not address the Bureau’s broader arguments about
whether Citizens’s APA claim is redressable. Moreover, since
“standing is not dispensed in gross” and plaintiffs “must
demonstrate standing for each claim [they] seek[] to press and
for each form of relief that is sought,” we note that the
foregoing Article III standing analysis applies equally to
Citizens’s mandamus claim. Town of Chester v. Laroe Ests.,

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21
Inc., 581 U.S. 433, 439 (2017) (quoting Davis v. Fed. Election
Comm’n, 554 U.S. 724, 734 (2008)).
* * * * *
For the foregoing reasons, we affirm the District Court.
So ordered.

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WILKINS, Circuit Judge, concurring: The Fourteenth
Amendment was adopted in 1866 and ratified in 1868—over
150 years ago. CONG. GLOBE, 39th Cong., 1st Sess. 3149
(1866); see also Act of July 28, 1868, 15 Stat. 708–10 (1868)
(ratifying the Fourteenth Amendment). Since then, while
several other amendments to the Constitution have been
robustly enforced, members of Congress and agency officials
have undertaken shamefully few actions to implement the
Amendment’s Reduction Clause, and none have resulted in any
meaningful, much less robust, enforcement of the penalty
contemplated by that provision. George David Zuckerman, A
Consideration of the History and Present Status of Section 2 of
the Fourteenth Amendment, 30 FORDHAM L. REV. 93, 107–24
(1961).
In this case, the Bureau argued that Citizens’s claims are
not redressable because the Bureau “neither [has] the authority
nor the tools” to implement the Reduction Clause and because
“it is far from clear that [the Secretary] would have authority to
withdraw her [R]eport on the 2020 census at this point.”
Appellee’s Br. 20–21; see Oral Argument Tr. 21–22. At
argument, the Bureau was asked how, under its theory, any
plaintiff would have standing to enforce the Reduction Clause.
Id. at 23–24. “I’m not sure,” replied counsel for the Bureau,
“[i]t’s not clear because of the way that the [R]eduction
[C]lause and the statutory scheme exist . . . there is no
obvious . . . answer to that question.” Id. at 23. When pressed
further about which government actor is responsible for
enforcing the Reduction Clause, if not the Bureau, the Bureau
took no position, abdicating any responsibility for
implementing the provision without some other congressional
action. Id. at 26–28. The Bureau’s response, put colloquially,
was, “Not it.”
This is an unacceptable position from an agency of the
Executive Branch that is tasked with the responsibility, and
empowered with the authority, to “take [c]are that the [l]aws be

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2
faithfully executed.” U.S. CONST. art. II, § 3. The Reduction
Clause, which has been codified in statute since 1872, is just as
important as any other constitutional provision, having been
passed following intense deliberations about how to reunite a
nation fractured by war and facing political differences that
threatened to leave four million formerly enslaved Black
Americans with “no political existence” while Southerners
gained a profound increase in political power. W.E.B. DU
BOIS, BLACK RECONSTRUCTION 290 (Free Press 1998) (1935);
see id. at 295, 330. Equal treatment must be afforded not just
to people but to the laws in place to protect their rights; it is
high time, after 150 years, that the Reduction Clause receive
the respect it deserves.
I.
Following the Civil War, the Joint Committee on
Reconstruction (the “Committee”) was tasked with
“inquir[ing] into the condition of the [Confederate]
States . . . and report[ing] whether they or any of them are
entitled to be represented in either house of Congress.” J.
COMM. ON RECONSTRUCTION, 39TH CONG., 1ST SESS., REP. OF
J. COMM. ON RECONSTRUCTION 1 (Comm. Print 1866). The
Committee proposed the Fourteenth Amendment based on its
findings. Id. at 15, 29. The originally stated purpose of the
Amendment was to protect “the civil rights and privileges of
all citizens in all parts of the republic” and to “place
representation on an equitable basis[.]” Id. at 15. Adoption of
the Reduction Clause specifically, however, was motivated by
“[t]he Republicans who controlled the 39th Congress,” who
“were concerned that the additional congressional
representation of the Southern States which would result from
the abolition of slavery might weaken [the Republicans’] own
political dominance.” Richardson v. Ramirez, 418 U.S. 24, 73
(1974) (Marshall, J., dissenting). The omission of any mention

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3
of race or color in the final version of the Reduction Clause was
occasioned by a fear that, by cabining it to race-based
disenfranchisement, Congress would inadvertently “enable
circumvention of the congressional purpose via imposition by
the states of unpenalizable education or property
qualifications.” Arthur Earl Bonfield, The Right to Vote and
Judicial Enforcement of Section Two of the Fourteenth
Amendment, 46 CORNELL L.Q. 108, 112 (1960). In effect,
however, they put “Southern States to a choice—enfranchise
Negro voters or lose congressional representation.”
Richardson, 418 U.S. at 74 (Marshall, J., dissenting); see H.R.
REP. NO. 39-11, at 3 (1st Sess. 1866) (minority report
explaining that “[t]he object of [the Fourteenth A]mendment is
to establish universal and unqualified negro suffrage
throughout the whole Union; and instead of boldly and openly
meeting that issue, it attempts to deceive the people by
inflicting a severe penalty upon the States that refuse
unqualified suffrage to the colored race”).
The government first sought to enforce the Reduction
Clause through the 1870 Census. Senator James Harlan of
Iowa proposed a resolution on December 19, 1868, directing
the Senate Judiciary Committee to “prepare a bill for the
apportionment of Representatives in compliance with” the
Reduction Clause. Zuckerman, supra, at 107 (citing CONG.
GLOBE, 40th Cong., 3d Sess. 158 (1868)). That resolution died
on the vine when the short session of Congress that year
terminated, but the House of Representatives took up the
mantle soon after, appointing a Committee on the Ninth Census
(the “Census Committee”), chaired by then-Representative
Garfield of Ohio, to “ascertain the laws which restricted
suffrage” and to “provide the census takers with this
information to assist them in determining the number of adult
male citizens whose right to vote was denied or abridged.” Id.

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4
at 108; see H.R. REP. NO. 41-3, at 52–53 (1870). The Census
Committee concluded, in relevant part, that
The [T]hirteenth and [F]ourteenth
[A]mendments of the national Constitution
have radically changed the basis of
representation and provided for a redistribution
of political power . . . . The census is our only
constitutional means of determining the
political or representative population. The
[F]ourteenth [A]mendment has made that work
a difficult one. At the time of its adoption it was
generally understood that the exclusion applied
only to colored people who should be denied the
ballot by the laws of their State. But the
language of the article excludes all who are
denied the ballot on any and all grounds other
than the two specified. This has made it
necessary to ascertain what are in fact the
grounds of such exclusion . . . .
H.R. REP. NO. 41-3, at 52. The Census Committee went on to
identify “nine general classes” of state constitutional
provisions and laws that impermissibly abridged or denied the
voting franchise on account of: (1) race or color; (2) “residence
on lands of United States,” “residence less than required time
in United States,” “residence in State less than required time,”
and “residence in county, city, town, district”; (3) lack of
“property qualifications” or non-payment of taxes; (4) lack of
“literary qualifications”; (5) character or behavior; (6) army or
naval service; (7) “pauperism, idiocy, and insanity”; (8)
“[r]equiring certain oaths as preliminary to voting”; and (9)
other causes. Id. at 52–53; see id. 71–93. To capture a count
of the population subject to such laws, the Census Committee
recommended “add[ing] . . . a column for recording those who

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5
are voters,” and another for recording “Citizens of the United
States, being twenty-one years of age, whose right to vote is
denied or abridged on other grounds than rebellion or crime.”
Id. at 53.
At the outset, however, the Census Committee severely
undermined its own proposal. After outlining its proposal for
collecting population data on citizens whose right to vote had
been denied or abridged, it asserted that, while this was “the
best method that ha[d] been suggested,” it might be “difficult
to get true and accurate answers” to the relevant question
because it would “allow the citizen to be a judge of the law as
well as the fact.” Id. The Commissioner of the Census, under
direction of the Secretary of the Interior, nevertheless went
ahead with changing the census schedule to incorporate the
citizenship and suffrage questions. CONG. GLOBE, 42d Cong.,
2d Sess. 79 (1872) (“[I]t was believed that . . . in order to carry
out the requirements of the [F]ourteenth [A]mendment, the
Department would not be clear if it neglected to make the
attempt [to do so], it being the only executive organ through
which, without such special provision, the information could
be obtained . . . .”). To effectuate the collection of responses
to these questions, the Secretary informed Assistant U.S.
Marshals at the time, who were responsible for taking the
census, that “[m]any persons never try to vote, and therefore do
not know whether their right to vote is or is not abridged,” but
that the question was intended to capture “not only those whose
votes have actually been challenged, and refused at the polls
for some disability or want of qualification” but also “all who
come within the scope of any State law denying or abridging
suffrage to any class or individual on any other ground than
participation in rebellion, or legal conviction of a crime.”
DEP’T OF INTERIOR, INSTRUCTIONS TO ASSISTANT MARSHALS
(1870), https://usa.ipums.org/usa/voliii/inst1870.shtml
[perma.cc/D49N-XUMS].

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6
Despite these instructions, the positive response rate to the
question on denial or abridgement was abysmally low. Reports
of voter disenfranchisement at the time were common. E.g.,
TESTIMONY TAKEN BY THE SUBCOMM. OF ELECTIONS IN LA.,
H.R. MISC. DOC. NO. 41-154, pt. 2, at 188 (2d Sess. 1869) (“It
was remarked by [General A. L. Lee and Governor Warmoth]
that the better course would be to advise the colored people not
to vote [in the 1868 election]. This was done, and hence the
small republican vote cast in [New Orleans] and in many of the
parishes of the State.”). Yet, the Census Bureau reported that
only 185 out of 159,037 male citizens over 21 in Louisiana—
and only 40,380 out of 8,314,805 nationwide—had their right
to vote abridged or denied. CONG. GLOBE, 42d Cong., 2d Sess.
83 (1872). This outcome led the Secretary himself to “give but
little credit to the returns made by assistant marshals in regard
to the denial or abridgement of suffrage.” CONG. GLOBE, 42
Cong., 2d Sess. 79. Members of the House of Representatives
derided the results as “utterly inaccurate” and “not reliable”
given that they reported so few disenfranchised voters. Id. The
Superintendent of the Ninth Census further undermined the
1870 Census results by echoing the Census Committee’s prior
lack of confidence, reporting that “[t]he census is not the proper
agency for . . . . questions of citizenship and of the denial of
suffrage to rightful citizens” because they are “mixed questions
of law and fact, which an assistant marshal is not competent to
decide.” FRANCIS A. WALKER, NINTH CENSUS – VOL. I, THE
STATISTICS OF THE POPULATION OF THE UNITED STATES xxviii
(1872). Incredibly, however, the Superintendent went on to
deem “[t]he count . . . of the total number of male citizens
above twenty-one in each State in the United States” to have
been “carefully made,” to be “as exact as most statistical
results,” and to have had “an important bearing upon political
philosophy and political history in the United States.” Id.

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7
Based on these results, the representative population of the
Southern states increased 13.92 percent. Id. at xiii. In the
decade following, there were pervasive reports of voter
disenfranchisement, but with the increase in political
representation already in place, former slaveholding states
received the same unwarranted political power the Reduction
Clause was meant to prevent. See BENJAMIN GRIFFITH
BRAWLEY, A SHORT HISTORY OF THE AMERICAN NEGRO 178
(Macmillan 1913) (“In the decade 1870-1880 intimidation;
theft, suppression, or exchange of the ballot boxes; removal of
the polls to unknown places; false certifications; and illegal
arrests on the day before an election were the chief means used
by the South to make the Negro vote of little effect.”);
PROCEEDINGS OF THE NATIONAL CONFERENCE OF COLORED
MEN OF THE UNITED STATES, HELD IN THE STATE CAPITOL AT
NASHVILLE, TENNESSEE, 1879 32 (Darby 1879) (reporting
Colonel Robert Harlan’s statement that “[a]t present there
seems to be no alternative [but to migrate to the North]. The
reaction has robbed Southern Republicans, both white and
colored, of their votes and of their voices, and this has thrown
the nation into the hands of our opponents, who are determined
to strip us of the last measure of protection.”).
II.
To this day, the government has failed to enforce the
Reduction Clause despite having codified it into law. See Act
of Feb. 2, 1872, 17 Stat. 28–29 (1872) (codified at 2 U.S.C.
§ 6). While the Fifteenth Amendment invalidated de jure
disenfranchisement based on race, states remained able through
the Civil Rights Era to exercise de facto disenfranchisement
and “eas[ily] . . . deny the franchise to persons on account of
their race” through “poll tax[es], literacy test[s], and other
similar qualifications imposed on the exercise of the franchise”
without any proportionate reduction in their congressional

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8
representation. Bonfield, supra, at 108–09. Indeed, “[B]lacks
in the South,” as well as other non-white groups, “were
virtually disenfranchised from the end of the Reconstruction
Period until 1965.” U.S. COMM’N ON C.R., THE VOTING
RIGHTS ACT SUMMARY AND TEXT 4 (1971). The Reduction
Clause was essentially a dead letter, and it had no deterrent
effect on these overt measures to disenfranchise Black citizens.
This occurred notwithstanding the intermittent but
courageous efforts of a small number of congresspeople to
jumpstart the Executive Branch’s failed enforcement of the
Reduction Clause. In 1901, prior to the apportionment
pursuant to the Twelfth Census, Representative Shattuc of
Ohio introduced a resolution that would have directed the
“Director of the Census” to furnish the House of
Representatives with information regarding the denial or
abridgement of suffrage on account of illiteracy, “pauperism,”
polygamy, “property qualifications, or for any other reason.”
Zuckerman, supra, at 117 (quoting 34 CONG. REC. 556 (1901)).
That resolution died in committee. Id. at 118. In 1904, Senator
Platt of New York introduced a bill to amend Congress’s 1901
Apportionment Act to acknowledge that “the right . . . to vote
at some . . . elections since [1901] . . . has in fact been denied
or abridged for causes not permitted by the Constitution,” and
to reduce the representation of several Southern states.
Zuckerman, supra, at 119 (quoting S. 5747, 58th Cong. (3d
Sess. 1904–1905)). That bill also died in committee. Id. In
1906, Representative Keifer of Ohio went further than anyone
else had gone so far, introducing a bill to reduce the number of
representatives of Southern states by 37—the number
proportionate to the entire Black population in the South, which
Keifer asserted was completely disenfranchised by “the use of
fraudulent ballots, shotgun policies, dishonest registration
policies, and intimidation at the polls.” Id. at 120 (quoting 40
CONG. REC. 3885–86 (1905–1906)); see id. at 119–20.

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9
Keifer’s bill, similarly, died in committee. Id. at 120. Over
fifty years later, in 1957, Senator McNamara of Michigan
proposed an amendment to the bill that would ultimately
become the Civil Rights Act of 1957, which detailed a plan for
implementing the Reduction Clause through a joint committee
that would have been responsible for identifying states that
deny or abridge the right to suffrage and calculating the
proportionate reduction in representation due to those states.
Id. at 120–21. McNamara’s proposal was rejected; he then
reformulated the proposal into a standalone bill that—you
guessed it—also died in committee. Id. at 121 (citing S. 2709,
85th Cong. (1st Sess. 1957)); 103 CONG. REC. 13703 (1957)).
Individuals have also sought to enforce the Reduction
Clause’s representation penalty through judicial action, albeit
unsuccessfully. In Saunders v. Wilkins, Saunders, a
prospective candidate for the House of Representatives in
Virginia, sued the Secretary of the Commonwealth of Virginia
over the latter’s refusal to certify Saunders as a candidate
despite his submission of a petition signed by 250 qualified
voters. 152 F.2d 235, 235 (4th Cir. 1945), cert. denied, 328
U.S. 870 (1946). Saunders theorized that the Secretary’s
actions abridged the right “to vote for the choice
of . . . Representatives in Congress” and that Congress’s 1941
reapportionment, which did not reduce Virginia’s
representation proportionately, was invalid as a violation of the
Reduction Clause. Id. at 236. The Fourth Circuit interpreted
the “underlying purpose” of Saunders’s Reduction Clause
argument to be “abolition of the Virginia poll tax law,” but then
punted, finding that the question of whether the poll tax fell
within the terms of the Reduction Clause was “a question
political in its nature which must be determined by the
legislative branch of the government and is not justiciable.” Id.
at 237. In another case, Lampkin v. Connor, this Court
affirmed the dismissal of a complaint filed against the

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10
Secretary of Commerce by voters seeking to enforce the
Reduction Clause. 360 F.2d 505, 506 (D.C. Cir. 1966).
Plaintiffs in that case fell into two categories—one group
alleged potential vote dilution injury if the then-upcoming 1970
Census failed to implement the Reduction Clause and the other
group alleged that they would be injured from the obstruction
of their right to vote by state poll taxes and certain registration
requirements.1 Id. 506, 510. Our Court determined the first
group’s injury, alone, was too speculative to warrant
adjudication and that adjudicating the claims of either group,
in light of the Voting Rights Act of 1965 and the Twenty-
Fourth Amendment to the Constitution banning poll taxes,
would be “premature” unless “it c[ould] fairly be said that
discrimination persists despite th[o]se new measures.” Id. at
511. Nevertheless, this Court also made sure to say that, even
though plaintiffs’ timing might have rendered their complaint
“unsuitable for judicial disposition at [the] time,” it was also
“premature to conclude that Section 2 of the Fourteenth
Amendment does not mean what it appears to say.” Id. at 512.
Despite these enforcement efforts and ongoing evidence of
voter disenfranchisement, neither the Bureau nor any other
member of the Executive Branch appears to have meaningfully
attempted to figure out how to implement this constitutional
1 Notably, the Lampkin plaintiffs were represented by then-attorney
William B. Bryant in their district court challenge, Lampkin v.
Connor, 239 F. Supp. 757 (D.D.C. 1965), who, mere months after
the case was decided, was appointed to serve as a judge on the U.S.
District Court for the District of Columbia and later served as the
first Black Chief Judge for that court. William B. Bryant, HIST.
SOC’Y D.C. CIR., https://dcchs.org/judges/bryant-william/
[perma.cc/5ZSR-DZSD]; William B. Bryant Annex History, U.S.
GEN. SERVS. ADMIN., https://www.gsa.gov/real-estate/gsa-
properties/visiting-public-buildings/william-b-bryant-annex/whats-
inside/history (Jan. 21, 2024) [perma.cc/836T-ASG8].

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11
provision. It is as if the Reduction Clause were written in
invisible, rather than indelible, ink. Its sister provisions in the
Fourteenth Amendment are summarily lauded—failure to
enforce them causes hand wringing and outcry—and yet the
abandonment of the Reduction Clause has been met with a
shrug.
III.
Part of the Bureau’s defense that it does not have the
authority to implement the Reduction Clause is that, by statute,
the Secretary is not “directed” to “report population counts that
are less than the ‘total population.’” Appellee’s Br. 11. To be
sure, 13 U.S.C. § 141 provides that the Secretary
“shall . . . every 10 years . . . take a decennial census of
population as of the first day of April of such year . . . in such
form and content as [s]he may determine” and “report[]” the
“tabulation of total population by States . . . as required for the
apportionment of Representatives in Congress among the
several States . . . within 9 months after the census date . . . to
the President of the United States.” The Report delivered to
President Biden in 2020, however, betrays the Bureau’s
argument in that it specifically calculated the “number of
apportioned representatives based on [the] 2020 Census”
according to the method of equal proportions as provided for
in 2 U.S.C. §§ 2a, 2b. A. 55 & n.2.
The Bureau cannot have it both ways. Contrary to the
Bureau’s representation at oral argument—that the Bureau
only “count[s] the total number of people in the United States”
and nothing else, Oral Argument Tr. 28—the Bureau
demonstrates that it has the authority to provide the President
with an apportionment count based on census data. It is thus
the Bureau’s responsibility to ensure that the apportionment

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12
count it is providing accords with the Reduction Clause as well
as the Clause’s statutory codification at 2 U.S.C. § 6.
The Bureau made a slapdash, one-time attempt to
effectuate the Reduction Clause in 1870, but that failed attempt
cannot now justify the agency’s ongoing failure to even try to
ensure that states denying or abridging the right to vote are
appropriately held to account. See Oral Argument Tr. 27. The
census remains the most natural established way of
ascertaining the data necessary to effectuate the Reduction
Clause, as both the House and Senate recognized in the late
1860s. See Zuckerman, supra, 107–08. The Bureau has
several tools at its disposal to identify ways to implement the
provision; it can promulgate rules, engage in notice and
comment, seek out implementation input from experts, or
generate reports for submission to the President and Congress.
I concede that implementing the Reduction Clause might be
difficult, but that is no excuse for the Executive Branch to
abdicate its responsibility to give effect to this important part
of the Constitution. Many constitutional provisions are
difficult to enforce, like the Second Amendment, the
preservation of the right to trial by jury, and the guarantee of
equal protection. But the government has a duty to enforce all
of the Constitution, not just some of it, and it is time that the
government stop treating the Reduction Clause as an
afterthought. Cf. Nebraska v. Wyoming, 325 U.S. 589, 616
(1945) (“The difficulties of drafting and enforcing a decree are
no justification for us to refuse to perform the important
function entrusted to us by the Constitution.”); Carey v.
Population Servs. Int’l, 431 U.S. 678, 691 (1977) (“[T]he
prospect of additional administrative inconvenience has not
been thought to justify invasion of fundamental constitutional
rights.”).

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