In the United States, we grow up believing that every citizen has a voice in our government. But some states are taking away their citizens' rights to vote. It has become too hard to vote, and those difficulties undermine our democracy. Recently, some states have increased barriers to register, cut back on vote-early options, and required photo identifications. We want to ensure every citizen has a voice in their government by making it easier to vote.
Civil War problems require Reconstruction solutions.
The United States’ history shows the forces in power seeking to exclude some citizens from voting, so those forces could perpetuate their power. Citizens pushed repeatedly with new constitutional amendments. Since the Bill of Rights, half of the constitutional amendments have updated election qualifications or voting effects.
In July, President Biden called the recent wave of voting abridgments the worst threat to democracy since the Civil War. Civil War problems require Reconstruction solutions.
During Reconstruction after the Civil War, the northerners in Congress saw a perverse consequence of the 13th Amendment. At the founding, the Constitution had allocated representatives based on free persons and three-fifths of other persons (enslaved persons). After the 13th Amendment, formerly enslaved people each now counted as five-fifths of a person—and Congress knew the rebel states would not let formerly enslaved people vote. That would have given the rebel states thirteen extra seats in the U.S. House of Representatives as a reward for starting the Civil War!
Congress feared allowing that “spirit of oligarchy” to remain in the rebel states. It designed Section 2 of the 14th Amendment to reduce a state’s population proportionately to the extent that state denied or abridged “in any way” its citizens’ rights to vote (except for crimes or participation in rebellion).
In other words, when a state disenfranchises X percent of its citizens over the age of 18, the Constitution requires the Census Bureau to discount the state's population by X percent when divvying up seats in the U.S. House of Representatives. So, for example, if North Carolina’s population were 63 percent white and it allowed only white people to vote, the Fourteenth Amendment would require the Census Bureau to count only 63 percent of North Carolina's population for receiving representative seats.
Implementing the Fourteenth Amendment
The Census Bureau has never implemented that 14th Amendment requirement because it lacked sufficient data. Well, we have plenty of data, now. Vermont Senator Justin Morill, one of the Framers, predicted future difficulties. He lamented the United States’ inability to implement the 14th Amendment’s requirement, but wanted to preserve it for the future: “If not needed today, it may be tomorrow.”
Implementing the 14th Amendment will move House seats and presidential electors from some states to others. For example, it will move seats from Wisconsin and Indiana to Pennsylvania and Virginia.
Photo voter identification requirements also make voting harder—even for registered voters. A federal district judge determined that 300,000 Wisconsin registered voters lack sufficient photo IDs to vote. Discounting Wisconsin’s population by 300,000 people moves a seat from Wisconsin to New York.
Our Lawsuit to Compel the Analysis
We want a court to compel the Census Bureau to do its duty by completing the analysis and calculations the Constitution requires. In August, we sent a letter to the Census Bureau pointing out its failure. In October, it told us it had no such duty. If we wanted justice, the Census Bureau told us, the United States has a whole Department of Justice across the street. Try them. We listened.
On November 17, 2021, we filed our lawsuit in federal court in Washington, D.C. The Department of Justice will defend the lawsuit. On December 13, the Court granted our application for a three-judge court.
In April 2023, the district court threw out our case because, they told us, we failed to demonstrate injury. They made up a new requirement that a plaintiff needs to show not only injury resulting from an illegal procedure, but that the government acted illegally in a procedure that allowed the plaintiff to participate in the procedure. The Supreme Court has held the opposite of that at least three times. We appealed, and we're drafting our brief now. Stay tuned!