Petition for Writ of Certiorari — Citizens for Constitutional Integrity, Petitioner v. Census Bureau, et al.

No.

In the Supreme Court of the Anited States

CITIZENS FOR CONSTITUTIONAL INTEGRITY

PETITIONER

VU.

CENSUS BUREAU, ET AL.,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Michael Meltsner Jared Pettinato

Of Counsel Counsel of Record

The Pettinato Firm

1802 Vernon St. NW

PMB 620

Washington, DC 20009

Jared@JaredPettinato.com

(406) 314-3247

QUESTIONS PRESENTED

To apportion U.S. House of Representatives seats,

the 14th Amendment, Section 2 (the Reduction

Clause), and 2 U.S.C 6 require an additional

procedure after the “actual Enumeration” in Article I,

Section 2. The Reduction Clause directs, with

exceptions, each state’s “basis of representation ...

shall be reduced” to the extent that state denies or

abridges its citizens’ rights to vote. Congress

delegated responsibility to the Secretary of

Commerce, every decade, to report on “the

apportionment.” 13 U.S.C. 141(b). No one can deny

that some states have denied or abridged some

citizens’ rights to vote, yet the Secretary’s 2021 Report

did no reducing. It ultimately apportioned one fewer

seat to two states where Citizens for Constitutional

Integrity’s members reside and vote. The questions

presented are:

1. Whether the Administrative Procedure Act and

the Mandamus Act gave Citizens procedural rights to

claim the Secretary failed to complete the 14th

Amendment, Section 2, and 2 U.S.C. 6 procedure

when issuing the 2021 Report.

2. Whether, when a plaintiff demonstrates agency

action apportioned fewer Congressional seats to states

where the plaintiffs members reside and vote, the

plaintiff established fair traceability to claim the

agency based that action on an improper legal ground.

(I)

PARTIES TO THE PROCEEDING

Petitioner Citizens for Constitutional Integrity

was the plaintiff in the district court and the appellant

in the court of appeals.

Respondents the Census Bureau, the U.S.

Department of Commerce, the Secretary of

Commerce, and the Director of the Census Bureau

(collectively, the Census Bureau) were defendants in

the district court and appellees in the court of appeals.

CORPORATE DISCLOSURE STATEMENT

Petitioner is a nonprofit corporation without stock.

No parent or publicly held company owns ten percent

or more of its stock.

RELATED PROCEEDINGS

United States District Court (D.D.C.):

Citizens for Constitutional Integrity v. Census

Bureau, No. 1:21-cv-03045-CJN-JRW-FYP

(Apr. 18, 2023)

United States Court of Appeals (D.C. Cir.):

Citizens for Constitutional Integrity v. Census

Bureau, No. 23-5140 (Sept. 10, 2024) (initial

panel opinion)

Citizens for Constitutional Integrity v. Census

Bureau, No. 23-5140 Wan. 24, 2025) (rehearing

en banc denial and panel rehearing denial)

(II)

TABLE OF CONTENTS

Questions Presented ..............cccesccseseceesecensensevenceseceesees I

Parties to the Proceeding ...............cssccccsssseceesecceeseees I]

Corporate Disclosure Statement...............cccccccssseeeees I]

Related Proceedings.............cccssscccsessecneeseceeeseceneaseeeees I]

Table of Contents .............ccccscssesceceeeeceeeceeenenseaanaenaeses II

Table of Authorities ...............cccccccceeeeceeceeeeeenneeneeeeeees VI

Petition for a Writ of Certiorar ..............ccccssessseeeeeeees 1

Opinions Below .............ccccccessececesecccsessscsecescsecnesceeenscss 1

Statement of Jurisdiction ................cccccceeeeeceeeeeceeeeeeees 1

Constitutional and Statutory Provisions Involved.... 1

StateMent.........cccccccssccccsseccceseeccceneccseesectsneeesenseceeaneess 1

I. Legal Background. ...............cccceesccceeeeeeeeeeeseseenseees 4

II. Factual and Procedural Background ................. 8

A. In April 2021, the Census Bureau finalized

its Report that apportioned seats. ..............008 8

B. Citizens showed the Report apportioned

fewer representatives to two members’

STATES. ......ceccecsecseceecsecsecsecsecsccscescesceeceeceeceeceecene 9

C. The three-judge district court recognized

the Report apportioned fewer

representatives to two of Citizens’

members’ states, but denied the Reduction

Clause was “designed to protect” Citizens

and required Citizens to prove fair

traceability a SecONd WAY. .........ccccscssssseeeeeeees 10

D. The D.C. Circuit denied Citizens’ claims

they had a procedural right because

(IIT)

Citizens sought relief for “substantive”

injuries; and although the Report

apportioned fewer representatives to two of

Citizens’ members’ states, it required

Citizens to prove fair traceability a second

WAY. crcsscsscsccsccsccscceccecscsscseceeceeeesesteusessescescescess 11

Reasons for Granting the Petition ...............cccccceeeees 13

I. Certiorari is needed to resolve a conflict over

the D.C. Circuit’s outlier test for determining

procedural rights, which ten other courts of

appeals do not apply. ...........cccseccsssceesecsesecceeeeees 14

II. Certiorari is necessary to provide guidance on

whether, after plaintiffs demonstrate an

agency action caused them concrete harm,

Article III allows courts to require plaintiffs to

establish fair traceability a second way before

claiming the agency based its action on an

improper legal Ground. ............:cccccsseeeceseeceeaeees 16

III. This case provides a good vehicle to resolve

these issues because the agency action’s text

presents a clean, irrefutable demonstration of

fair traceability, because this case presents no

other justiciability issues, and because of the

Reduction Clause’s importance to United

States CEMOCLACY. ..........cccccessececeseeeeesseseneneeeeenes 21

Conclusl0n ...........cccceccecceceececceececcecceccercutcuteusautencaecees 24

Appendix A: Opinion of the United States Court

of Appeals for the District of Columbia Circuit

(Sept. 10, 2024) oo... ceceeesecceeeesensseeeesenees la

Appendix B: Memorandum Opinion of the United

States District Court for the District of

Columbia (Apr. 18, 2028)...........cccccesseseseseceeees 37a

(IV)

Appendix C: Letter from Secretary of Commerce

Raimondo to the President (Apr. 21, 2021).... 51a

Appendix D: Letter from United States Census

Bureau Acting Director Ron S. Jarmin to Jared

Pettinato (Oct. 1, 2021).......... eee cceeececeeeecceeees 57a

Appendix E: Order Denying the Petition for

Rehearing En Banc by the United States Court

of Appeals for the District of Columbia Circuit

(Jan. 24, 2025).........ccccccccssessesseeeeeeeeeeeseseneeeees 59a

Appendix F: Order Denying the Petition for Panel

Rehearing by the United States Court of

Appeals for the District of Columbia Circuit

(Jan. 24, 2025)...........ccssescccscsseesccseensssesseeeusecess 6la

Appendix G-1: U.S. Const., art. I, Section 2, cl.

DB icccsseccecssscsecsscseescsecsscccceaccccesvescssuceceusueseeeacsseees 63a

Appendix G-2: U.S. Const., art. III, Section 2.... 63a

Appendix G-3: U.S. Const. amend. XIV, sec. 2 .. 64a

Appendix G-4: 2 U.S.C. 28 .....ccececcccccssssssssseeeeeeees 65a

Appendix G-5: 2 U.S.C. 6... ceeccccccssseesceeeesenseeees 67a

Appendix G-6: 5 U.S.C. 706.0... eeccccesececesececenees 67a

Appendix G-7: 13 U.S.C. 141 occ ceceeseeeeeees 69a

Appendix G-8: 28 U.S.C. 1861.0... eeeseeeeeees 72a

Appendix G-9: 28 U.S.C. 1258 0... eeecccesseseeseeees 73a

Appendix G-10: Act of November 26, 1997, Pub.

L. No. 105-119, 111 Stat. 2440, 2480............. 73a

TABLE OF AUTHORITIES

Cases

Am. Hosp. Ass’n v. Price, 867 F.3d 160 (D.C. Cir.

QZOLT) .occccsssscccccssssececscssececeaessececsansecessauaeesessueasesceees 9

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S.

1755 10) 16

Baker v. Carr, 369 U.S. 186 (1962) «0... cece 19, 23

Bensman v. U.S. Forest Serv., 408 F.3d 945 (7th

Cir. 2005) ...........cessecccccessseccccceseesccsenssececseaeeseceesenees 14

Cohens v. Virginia, 19 U.S. 264 (1821) we 20

Collins v. Yellen, 594 U.S. 220 (2021)... 16,17

Ctr. for Biological Diversity v. EPA, 937 F.3d 533

(Sth Cir, 2019) ou... eeecccccccsssesseececceeeeenenseceececeeseees 14

Czyzewski v. Jevic Holding Corp., 580 U.S. 451

(2QOLT) ....ccccesscccccccessecccccesseccecceseeseessasesesseasseeseeeeunes 19

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332

(2ZOOG) .........sssccccccccscesssececccsceeeeeseecececeecseenscececcess 7,18

Daniels v. Williams, 474 U.S. 327 (1986) .................. 3

Data Processing Serv. v. Camp, 397 U.S. 150

(1970) ......ccceseccccsessescecseesescccceeseesecseensesecseenaceceesonaes 17

Dep'’t of Commerce v. Montana, 503 U.S. 442

(1992) ooo. eeececccccccccesseceeccceeeecesseseeeeesetseeaeseereneess 6, 23

Dep't of Commerce v. New York, 588 U.S. 752

(AO) ho) 6

Dep't of Commerce v. U.S. House of

Representatives, 525 U.S. 316 (1999) ............0. 7,17

Dep't of Educ. v. Brown, 600 U.S. 551 (2028)...... 8,15

(VI)

Desuze v. Ammon, 990 F.3d 264 (2d Cir. 2021)....... 14

Evenwel v. Abbott, 578 U.S. 54 (2016) .........essseeeeeeees 4

FEC v. Akins, 524 U.S. 11 (1998)... eeeeeeeees 7,17

FEC v. Ted Cruz for Senate, 596 U.S. 289

CAO) 7,17

Frank v. Walker, 17 F. Supp. 3d 837 (E.D. Wis.

7A: re 9

Free Enter. Fund v. Pub. Co. Accounting Oversight

Bd., 561 U.S. 477 (2010) ..........cessseeccceeeeeeeneees 11,18

Friends of the Earth, Inc. v. Laidlaw Enutl. Servs.

(TOC), Inc., 528 U.S. 167 (2000).............cccccceeeeeees 22

Giaccio v. Pennsylvania, 382 U.S. 399 (1966)............ 7

Gill v. Whitford, 585 U.S. 48 (2018)...........cccccccceeeeee 22

Hertz Corp. v. Friend, 559 U.S. 77 (2010)............06. 16

Hodges v. Abraham, 300 F.3d 482 (4th Cir. 2002) .. 14

Hyde v. Stone, 61 U.S. 170 (1857) ou... ec ceeeeseeeeeees 16

J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S.

B73 (2011) oo... ceeessscecccecceceesescescceeeseeeeneeseeeesseeeees 7

K. J. ex. rel. Johnson v. Jackson, 127 F.4th 12389

(Oth Cir. 2025) ou... cceeccccccessessseeeeeccseeeeensneeseeseesenes 14

Lexmark Int, Inc. v. Static Control

Components, Inc., 572 U.S. 118 (2014)........... 15, 20

Lujan v. Defs. of Wildlife, 504 U.S. 555

(1992) ooo. eecccceceeseeeeeeeenees 3, 7, 8, 15, 18, 20, 22, 23

Lujan v. Natl Wildlife Fed’n, 497 U.S. 871 (1990).. 15

Lyshe v. Levy, 854 F.3d 855 (6th Cir. 2017)............. 14

(VIJ)

Massachusetts v. EPA, 549 U.S. 497 (2007)....... 6, 8, 9

Minor v. Happersett, 88 U.S. 162, 176 (1874)............ 7

New Mexico v. Dep’ of the Interior, 854 F.3d 1207

(LOth Cir. 2017) ........ cc ceccccccccesecceceeenseceeesenseeseesenses 14

New Orleans Pub. Serv., Inc. v. Council of City of

New Orleans, 491 U.S. 350 (1989)...........cessseeeeeees 16

Nulankeyutmonen Nkihtaqmikon v. Impson, 503

F.3d 18 (1st Cir. 2007) 20.0... eeeeeeceeeeeseeseeceeaeees 14

Oregon v. Mitchell, 400 U.S. 112 (1970)... eee 2

Ramos v. Louisiana, 590 U.S. 83 (2020)..............006 23

Reynolds v. Sims, 377 U.S. 5838 (1964)... ceeeseeee 17

Richardson v. Ramirez, 418 U.S. 24 (1974)...........00. 2

Robertson v. Methow Valley Citizens Council, 490

U.S. 382 (1989)... ccesseccecceseeeccereeseeeseteeeeeeees 18

Salmon Spawning & Recovery All. v. U.S. Customs

& Border Prot., 550 F.3d 1121 (Fed. Cir. 2008)... 14

Seila L. LLC v. CFPB, 591 U.S. 197 (2020)............. 18

Shapiro v. McManus, 577 U.S. 39 (2015) uu... eee 4

Sheetz v. Cnty. of El Dorado, 601 U.S. 267 (2024).....5

Sierra Club v. Johnson, 436 F.3d 1269 (11th Cir.

A010] 5) ee 14

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll., 600 U.S. 181 (2028)..... 21

Summers v. Earth Island Inst., 555 U.S. 488

Swann v. Adams, 385 U.S. 440 (1967).......... eee 20

(VIII)

TransUnion LLC v. Ramirez, 594 U.S. 413

(2021) oo. eeeseeeeessessetsetsesseseneoneeacaaeaseseeeeeseneess 3, 15

Trump v. Anderson, 601 U.S. 100 (2024)............... 5,6

Trump v. New York, 592 U.S. 125 (2020) ................ 23

Utah v. Evans, 536 U.S. 452 (2002)... eeceees 7, 22

Willcox v. Consol. Gas Co., 212 U.S. 19 (1909)........ 16

Constitutional Provisions

U.S. Const. amend. V...... ccc ccecceecceseeeseeeseeeeseesees 3, 7

U.S. Const. amend. XIII]... eeeeeeeeeeeseeseseteeneeaeees 4A

U.S. Const. amend. XIV, sec. 2....... I, 2, 3, 4, 5, 6, 8, 9,

seaaueeececceceeeeeeeeeeeeeeeeseeeseseeeees 10, 12, 18, 18, 19, 21, 23

U.S. Const. amend. XIV, sec. 8........ cc cceccsesscceesseeesees 5

U.S. Const. amend. XIX... ccc eccececcssesceeeeseeeseees 4,7

U.S. Const. amend. XXVI...... eee eeeeeeeeseseesteseteeteeaeees A

U.S. Const. art. I, SeC. 2... cceceeeceeeveesecesssessceeecens I, 4

U.S. Const. art. ITI........ 1, 3, 7, 8, 9, 10, 11, 12, 13, 14,

sanecceceeceeeeeeeeeseeceeseeeeseeeees 15, 16, 17, 18, 19, 20, 21, 22

Statutes

18 U.S.C. 141 ec cccccccceeeeeeeeeeeseeseesentensenaaeaeeas I,6

2 U.S.C. 6 one cccccccecceeseeeeeteeteeseesensessaasaaeans I, 2, 4, 5, 23

28 U.S.C. 1254 oo cccsssesseccceceseessseseceesensaeaseeseeeess 1

28 U.S.C. 1861 oo... ccc cceccceceeeeeeeeeeeeeessessesnennnneaeees 3, 7,9

28 U.S.C. 2284 ooo. ccccccceseeseeeseeeeseeteesestetsessaseaaeaaeees 23

5 U.S.C. 706 00... eccecccccesesesesessessecnceneeaesaeeaeeeeeseneeeeeeeeeess 6

Act of November 26, 1997, Pub. L. No. 105-119, sec.

209(e), 111 Stat. 2440, 2481.0... eecesccseeeneeees 23

Administrative Procedure Act, 5 U.S.C. 701-706. 3, 6,

9

National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. §§ 4821-4347 ..0... cece ee eeeee 18

Voting Rights Act of 1965, Pub. L. No. 89-110, 79

Stat. 487 (Aug. 6, 1965)... eeccceeeessseeseseeeaeees 10

Rules

Federal Rule of Civil Procedure 81 ................c.ccc eee eeee 9

Other Authorities

Br. for the U.S. as Amicus Curiae in Supp. of

Appellees and Resp’ts 27, Merrill v. Milligan,

Nos. 21-1086 and 21-1087 (July 2022), renamed

Allen v. Milligan, 599 U.S. 1, 36 (2028) ........0...... 10

Cong. Globe, 39th Cong., 1st Sess. (1866)..............00. 4

Cong. Globe, 42nd Cong., 2nd Sess. (1872)............ 2,5

Report of the Joint Committee on Reconstruction,

H.R. Rep. No. 30, 39th Cong., 1st Sess.

(186) ..........ccccccesecccessecceeececeeesccseesceecneseees 2, 4, 5, 21

(X)

PETITION FOR A WRIT OF CERTIORARI

Petitioner Citizens for Constitutional Integrity

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit (the D.C. Circuit)

in this case.

OPINIONS BELOW

The D.C. Circuit’s opinion, with Judge Wilkins’s

concurring opinion, is reported at 115 F.4th 618 (D.C.

Cir. 2024). App. la-36a. The district court’s

memorandum opinion is reported at 669 F. Supp. 3d

28 (D.D.C. 2023). App. 37a-50a.

STATEMENT OF JURISDICTION

The D.C. Circuit entered judgment on September

10, 2024. It denied the petition for panel rehearing

and for rehearing en banc on January 24, 2025. App.

59a-60a; 61la-62a. Petitioner invokes this Court’s

jurisdiction under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The appendix reproduces’ the pertinent

constitutional and statutory provisions. App. 63a-80a.

STATEMENT

This petition involves the long-neglected yet “most

important” clause in the Fourteenth Amendment, and

it provides this Court an opportunity to provide

needed guidance on recognizing procedural rights and

determining Article III fair traceability. See Report of

the Joint Committee on Reconstruction XIII, H.R.

1

Rep. No. 30, 39th Cong., 1st Sess. (1866)

(Reconstruction Report). The Reduction Clause states,

“when the right to vote. ..is denied... or in any way

abridged, except for participation in rebellion, or other

crime, the basis of representation [in that state] shall

be reduced.” This Court called it “as much a part of the

[Fourteenth] Amendment as any of the other

sections.” Richardson v. Ramirez, 418 U.S. 24, 55

(1974). Justice Brennan called its objective one of

“critical importance” and its operation sometimes

“andispensable.” Oregon v. Mitchell, 400 U.S. 112, 277

(1970) (concurring in part and dissenting in part). Yet

it is languishing.

The concurring opinion called the Reduction

Clause “essentially a dead letter.” App. 30a. “It is as if

the Reduction Clause were written in invisible, rather

than indelible, ink.” App. 34a. Congress feared this

outcome and passed a statute to preclude it. Joint

Committee on Reconstruction member Senator Justin

Morill urged passing 2 U.S.C. 6, to execute the

Reduction Clause in statute, because “[w]e must do

nothing to impair the vitality of [the Reduction

Clause] or any other provision of the Constitution. If

not needed today, it may be tomorrow. [tf must not

become a dead letter.” Cong. Globe, 42nd Cong., 2nd

Sess. 670 (1872) (emphasis added).

Despite Congress’s effort, lower courts for decades

have avoided the merits in every Reduction-Clause

lawsuit. Citizens for Constitutional Integrity’s case

cured the defects that plagued earlier cases. But as

the case moved toward the merits, the lower courts

blinked, moved the goalposts, and dismissed the case.

The D.C. Circuit diverged from ten other circuit

courts and created a new test for procedural rights. It

uses plaintiffs’ demonstration of concrete harm to

prove plaintiffs have no procedural rights. Citizens

2

claimed the Administrative Procedure Act (APA), 5

U.S.C. §§ 701-706, and the Mandamus Act, 28 U.S.C.

1361, gave them procedural rights to assert the

Census Bureau violated the Reduction Clause.

Procedural rights allow a plaintiff to demonstrate

Article III standing “without meeting all the normal

standards for redressability and immediacy.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 572 n.7 (1992).

Procedural rights are “special,” id., because they

prevent “arbitrary” and “oppressi[ve]” government

actions. See Daniels v. Williams, 474 U.S. 327, 331

(1986). The Due Process Clause, based on the Magna

Carta, requires the Government to follow every

procedure the law requires before taking rights from

citizens. The D.C. Circuit effectively eliminated those

rights. It held that, when a court can find, in the

“heart” of a complaint, the plaintiff seeking to remedy

substantive injury, the plaintiff has no proceduralright claim. But Article IIT always requires plaintiffs

to prove they are seeking redress for concrete injury.

TransUnion LLC vu. Ramirez, 594 U.S. 418, 417 (2021).

The D.C. Circuit’s test thus uses proof of concrete

injury to preclude procedural-rights claims.

The D.C. Circuit also ignored Citizens’

demonstration of fair traceability. The Report caused

Citizens vote-dilution injury by removing seats from

members’ states. Yet the D.C. Circuit demanded a

second showing: that the Census Bureau’s future

report, after remand, would give members’ states

additional seats. When plaintiffs demonstrate fair

traceability once, Article III prohibits courts from

creating new jurisdictional hurdles to require proving

fair traceability a second time.

This case calls for the United States to live up to

its commitments to democracy that the Framers set

forth in the Reduction Clause. It calls for this Court to

3

hold the Census Bureau accountable to the

Constitution. It merits a writ of certiorari.

I. Legal Background

14th Amendment, Section 2, and 2 U.S.C. 6

Emerging from a bloody Civil War, the Framers

saw the Thirteenth Amendment had freed 3.6 million

formerly enslaved persons in the rebel states. Cong.

Globe, 39th Cong., lst Sess. 74, 2767 (1866). The

Framers recognized that Article I, section 2, required

apportioning representative seats by counting those

newly-free persons as whole persons instead of “three

fifths” of a person. Reconstruction Report XIII. But

they knew the “oligarch[s]” in the rebel states would

not let the formerly enslaved people vote. Jd. If

nothing changed, Article I, section 2, would give those

oligarchs about thirteen additional seats in the U.S.

House of Representatives as a reward for starting the

Civil War. Id.; Cong. Globe, 39th Cong., 1st Sess. 74;

Evenwel v. Abbott, 578 U.S. 54, 99 (2016) (Alito, J.,

concurring). The Civil War victors could not let that

injustice stand.

The Framers intended a “fundamental” shift in

apportioning seats in the U.S. House of

Representatives. Reconstruction Report XIII. The

Reduction Clause requires each state’s “basis of

representation . .. shall be reduced” to the extent the

state denies or abridges its citizens’ “right to vote.”!

The word “shall” makes the reduction mandatory. See

Shapiro v. McManus, 577 U.S. 39, 43 (2015). The

passive-voice construction “shall be reduced” makes

1 The text references males, twenty-one years and older, but the

Nineteenth and Twenty-Sixth Amendments amended it. See

Evenwel, 578 U.S. at 102 n.7 (Alito, J., concurring).

4

every branch of the United States responsible. See

Sheetz uv. Cnty. of El Dorado, 601 U.S. 267, 276, 279

(2024). Thus, the Reduction Clause requires the

United States to calculate, for each state, the

percentage of resident citizens eighteen years old and

older who can vote (with exceptions), to multiply that

percentage by the state’s population, and to use that

new basis of representation to apportion seats. See

Reconstruction Report XIII.

Take 1870 North Carolina. Its population split

roughly into two-thirds white people and one-third

black people. Immediately after the Civil War, North

Carolina did not allow black citizens to vote. See

Reconstruction Report, Va., N. Carolina, 8. Carolina

174. Assume for simplicity the census reflected

citizens and North Carolina did not disenfranchise

anyone for criminal convictions or rebellion. Then,

when apportioning seats, the Reduction Clause would

have allowed counting only two-thirds of North

Carolina’s enumerated population.

The United States has never implemented the

Reduction Clause. For the 1870 census, the Executive

Branch produced “utterly inaccurate” and

“confessedly unreliable” results. Cong. Globe, 42nd

Cong., 2nd Sess. 79, 609-10 (1872). Congress passed 2

U.S.C. 6 to “carry out” the Reduction Clause. Id. at

610.2. That statute, effectively, implements the

Reduction Clause by repeating much of the language.

2 Three circumstances compel a different result here than in

Trump v. Anderson, 601 U.S. 100, 109, 112 (2024). That case

dismissed Fourteenth Amendment, Section 3, claims to

disqualify federal candidates because Congress had implemented

no remedy, and it could not have left the states to enforce the

section. Jd. at 110, 116-17. First, Congress implemented the

Reduction Clause by statute, 2 U.S.C. 6. Second, the United

+)

The Apportionment Process

In 1941, Congress delegated its “broad authority”

over the census and assigned the Census Bureau the

duty to “fairly account[] for the crucial

representational rights that depend on the census and

the apportionment.” Dep’t of Commerce v. New York,

588 U.S. 752, 769, 773 (2019) (quotations omitted);

Dep't of Commerce v. Montana, 503 U.S. 442, 452

(1992). Congress made the apportionment “process

self-executing.” Montana, 503 U.S. at 452 n.25.

Congress requires the Secretary of Commerce to

report to the President the “tabulation of total

population by States .. . as required for the

apportionment of Representatives in Congress.” 13

U.S.C. 141(b).

Procedural Rights and Standing

Plaintiffs have a “procedural right” when a statute

allows them to claim the government (a) failed to

complete a mandatory procedure or (b) completed a

procedure arbitrarily and capriciously when causing

concrete injury. See Massachusetts v. EPA, 549 U.S.

497, 517-18, 520 (2007). The APA includes an explicit

procedural right. It requires courts to “hold unlawful

and set aside agency action, findings, and conclusions”

made “without observance of procedure required by

law.” 5 U.S.C. 706(2)(D). The Mandamus Act gives a

separate procedural right “to compel an officer or

employee of the United States or any agency thereof

States has responsibility for apportioning seats. Third, the

Reduction Clause restricts states’ authorities. See id. at 112-13

(citing the Reduction Clause as an example of restrictions on

states).

6

to perform a duty owed to the plaintiff.” 28 U.S.C.

1361.

Article III assigns federal courts jurisdiction when

individual plaintiffs demonstrate injury, fair

traceability, and redressability. Summers v. Earth

Island Inst., 555 U.S. 488, 498 (2009). For this

threshold analysis, courts assume the correctness of

plaintiff's positions on the legal merits. FEC v. Ted

Cruz for Senate, 596 U.S. 289, 298 (2022).

This Court recognized procedural rights as

“special,” but it never explained why. Lujan, 504 U.S.

at 572 n.7. Procedural rights are special because they

arise from the Due Process Clause. “Certainly one of

the basic purposes of the Due Process Clause has

always been to protect a person against having the

Government impose burdens upon him except in

accordance with the valid laws of the land.” Giaccio v.

Pennsylvania, 382 U.S. 399, 408 (1966); J. McIntyre

Machinery, Ltd. v. Nicastro, 564 U.S. 8738, 879 (2011)

(plurality). Among other rights, the Due Process

Clause protects voting rights. Minor v. Happersett, 88

U.S. 162, 176 (1874), superseded on other grounds by

U.S. CONST. amend. XIX.

Plaintiffs establish concrete injury when they show

their state lost a representative. Dept of Commerce v.

U.S. House of Representatives, 525 U.S. 316, 331-32

(1999) (pre-census claim); Utah v. Evans, 536 U.S.

452, 459-61 (2002) (post-census claim).

Plaintiffs demonstrate fair traceability when the

agency action causes the concrete injury. Ted Cruz for

Senate, 596 U.S. at 297. Article III does not require

plaintiffs to prove the alleged legal violation caused

their injury. DaimlerChrysler Corp. v. Cuno, 547 U.S.

332, 353 n.5 (2006); FEC v. Akins, 524 U.S. 11, 25

(1998).

When a statute gives a plaintiff procedural rights,

the plaintiff can establish redressability “without

meeting the usual ‘standards for redressability.”

Dept of Educ. v. Brown, 600 U.S. 551, 561 (2023)

(quoting Lujan, 504 U.S. at 572 n.7). Article III

“tolerate[s] uncertainty over whether observing

certain procedures would have led to (caused) a

different substantive outcome.” Id. at 565. A plaintiff

“never has to prove that if he had received the

procedure the substantive result would have been

altered.” Massachusetis v. EPA, 549 U.S. at 518

(quotations omitted). Plaintiffs need only show “some

possibility that the requested relief will prompt the

injury-causing party to reconsider the decision that

allegedly harmed the litigant.” Jd.

II. Factual and Procedural Background

A. In April 2021, the Census Bureau finalized its

Report that apportioned seats.

The Census Bureau issued the Report and

apportionment in April 2021. App. 51a. In the

attached table, under the heading “Change from 2010

Census Apportionment,” the Report states for

Pennsylvania “-1,” for New York, “-1,” and for

Virginia, “0.” App. 54a, 55a. Citizens sent a letter

requesting the Census Bureau to complete the

Reduction Clause procedure. App. 41a; cf. 5 U.S.C.

5538(e). The Census Bureau responded that it lacked

authority to do so. App. 58a. It “suggest[ed] that

[Citizens] reach out to the Civil Rights Division of the

Department of Justice regarding enforcement of the

Fourteenth Amendment or any civil or voting rights

law.” Id.

B. Citizens showed the Report apportioned fewer

representatives to two members’ states.

Within weeks, Citizens filed claims under the APA

and the Mandamus Act for declaratory relief,

injunctive relief, vacatur, and mandamus.? Citizens

challenged the Report and alleged it violated the

Reduction Clause. The district court judge empaneled

a three-judge panel.

Citizens moved for early summary judgment.

Members from New York and Pennsylvania declared

they suffered vote-dilution injury from having fewer

representatives for their states, and a Virginia

member sought an additional representative.

To prove “some possibility” of redress under Article

III, see Massachusetts v. EPA, 549 U.S. at 518,

Citizens also attached a declaration from Data

Scientist Ayush Sharma. Sharma provided

mathematical calculations that showed different

possible results of the Census Bureau completing the

Reduction Clause procedure, in three scenarios. For

one scenario, Sharma based his figures on the Census

Bureau’s voter registration statistics for each state.

Based on this approach, Virginia would have gained a

seat. For a second scenario, Sharma relied on a court’s

finding that Wisconsin’s 2011 photo’ voter

identification law disenfranchised 300,000 registered

voters. Frank v. Walker, 17 F. Supp. 3d 837, 842, 854,

884 (E.D. Wis. 2014), overturned on other grounds by

768 F.3d 745, 746 (7th Cir. 2014), r’hrg en banc

denied, 773 F.8d 783 (2014). Accounting for that

3 Citizens technically seek relief “in the nature of a writ of

mandamus” because Federal Rule of Civil Procedure 81(b)

eliminated the writ. See Am. Hosp. Ass’n v. Price, 867 F.3d 160,

164 n.2 (D.C. Cir. 2017).

9

abridgement would have moved a seat from Wisconsin

to New York. For a third scenario, Sharma combined

both of the other scenarios. Under that approach,

Pennsylvania would have gained a seat.

Citizens never claimed the Census Bureau would

apportion seats exactly according to their scenarios.

As the U.S. Department of Justice explained in

another malapportionment context, “[e]ven if a

[Voting Rights Act] Section 2 violation is proven, the

defendant [government] need not adopt one of those

maps; instead, it has wide latitude to adopt any map

that remedies the violation.” Br. for the U.S. as

Amicus Curiae in Supp. of Appellees and Resp’ts 27,

Merrill v. Milligan, Nos. 21-1086 and 21-1087 (July

2022), renamed Allen v. Milligan, 599 U.S. 1, 36

(2023).

C. The three-judge district court recognized the

Report apportioned fewer representatives to

two of Citizens’ members’ states, but denied the

Reduction Clause was “designed to protect”

Citizens and required Citizens to prove fair

traceability a second way.

The district court dismissed the case for lack of

Article II] standing. App. 38a. It concluded Citizens

had no procedural right because Citizens failed to

show the Reduction Clause procedure was “designed

to protect” their interests. It held that those

“procedures are usually found in statutory provisions

that give private parties a right to participate in a

government process.” App. 49a (emphasis added). It

never identified what other situations also give

procedural rights—or whether this qualified as an

“unusual” situation.

Because Citizens could not rely on any procedural

rights, the district court held, Citizens failed to

10

establish fair traceability. App. 44a. The district court

admitted, “the 2020 apportionment did decrease the

number of representatives in two states in which

Citizens’s members reside — both New York and

Pennsylvania.” App. 42a-43a. But it held that

Citizens’ proof of vote-dilution injury was insufficient

for standing because, “in this context,” Article III

requires Citizens to determine the denials and

abridgments “in all states . . . to provide us with a

scenario that illustrates what apportionment might

look like if Citizens’s legal theory is correct.” App. 46a.

Citizens had argued that Article III “standing does not

require precise proof of what the [agency’s] policies

might have been in that counterfactual world.” Free

Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561

U.S. 477, 512 n.12 (2010). Yet the district court

required proof of that counterfactual: “we have no way

of knowing if the Bureau’s failure to apply the

[Amendment], in accordance with Citizens’s legal

theory, led to fewer representatives in Pennsylvania,

New York, or Virginia.” App. 47a.

D. The D.C. Circuit denied Citizens’ claims they

had a procedural right because Citizens sought

relief for “substantive” injuries; and although

the Report apportioned fewer representatives to

two of Citizens’ members’ states, it required

Citizens to prove fair traceability a second way.

On appeal to the D.C. Circuit, Judge Wilkins

authored the majority opinion, which upheld the

dismissal, and a concurring opinion, which rejected

the Census Bureau’s merits defenses.

1. The D.C. Circuit upheld the conclusion that

Citizens lacked procedural rights, but for different

reasons. It concluded there was “no established test in

this Circuit for determining whether a claimed right

11

is procedural or not.” App. 13a. The D.C. Circuit found

the “heart” of Citizens’ challenge “substantive”

because Citizens seek redress for substantive injury.

App. 14a. Therefore, it concluded Citizens lacked

procedural rights. App. 17a.

The D.C. Circuit proceeded to determine Article III

standing without a procedural right. It recognized

that “the Report reduces the seat allocation for New

York and Pennsylvania.” App. 20a. But like the

district court, it held that Citizens’ “factual

allegations are not enough to establish” fair

traceability. App. 19a. It found Citizens’ calculations

“premised on a selective enforcement of the Reduction

Clause with respect to only one state—Wisconsin,”

without analyzing New York’s, Pennsylvania’s, or

Virginia’s voting requirements. Jd. It held that,

because Citizens did not provide “the entire story,” by

providing a “feasible, alternative methodology” that

accounted for all of the denials and abridgments in

those states and showed Citizens’ members’ states

would receive a new seat, they had not established fair

traceability. App. 20a.

2. Judge Wilkins filed a concurring opinion that

excoriated the Census Bureau for contending it had no

responsibility to comply with the Reduction Clause.

He stated, “The Bureau’s response, put colloquially,

was, ‘Not it.” App. 24a. Judge Wilkins placed

responsibility on the Executive Branch to faithfully

execute the Reduction Clause. App. 23a-24a. He

showed the Census Bureau’s position contradicted the

agency’ earlier position, which in 1870 had

recognized the agency’s obligation to implement the

Reduction Clause. App. 24a, 27a-29a, 35a. He rejected

the possibility that the Census Bureau’s 1870,

“slapdash, one-time attempt” to implement the

Reduction Clause could “justify the agency’s ongoing

12

failure to even try to ensure that states denying or

abridging the right to vote are appropriately held to

account.” App. 35a.

Judge Wilkins even described how the Census

Bureau could complete the procedure that Citizens

sought: “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.”

Id.

Ultimately, he rejected the Census Bureau’s

excuses that compliance was too hard. “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.”

35a-36a. Yet, he concluded, “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.” Id.

3. Citizens petitioned for panel rehearing and

rehearing en banc. The D.C. Circuit denied the

petitions without comment. App. 59a-60a; 61a-62a.

REASONS FOR GRANTING THE PETITION

The courts of appeals disagree on how to identify

procedural rights, and this case illuminates these

conflicts clearly. Moreover, lower courts are requiring

more proof than Article III requires and are denying

jurisdiction when the Constitution assigns it, and that

results in agencies making arbitrary and oppressive

decisions without consequences. Finally, the

momentous context requires this Court’s input on

grave impacts of the Framers’ fundamental

13

democratic principles. The courts of appeals need this

Court’s further guidance.

I. Certiorari is needed to resolve a conflict

over the D.C. Circuit’s outlier test for

determining procedural rights, which ten

other courts of appeals do not apply.

The D.C. Circuit created a new Article III standing

test to determine when a litigant establishes

procedural-rights standing, and that test effectively

eliminates procedural rights. No other court of

appeals uses any similar test. That makes the D.C.

Circuit an extreme outlier.

1. The D.C. Circuit held that it had “no established

test” for determining when plaintiffs have procedural

rights. App. 13a. It created a new test by asking

whether, in the “heart” of the complaint, the plaintiffs

seek “substantive” or “procedural” relief. App. 14a.

Ten other courts of appeals recognize proceduralrights standing when (1) a plaintiff asserts an agency

violated a mandatory procedure, and (2) Congress or

the Framers “designed [the statute or constitutional

provision] to protect” people like the litigants. See K.

J. ex. rel. Johnson v. Jackson, 127 F.4th 1239, 1252

(9th Cir. 2025); Desuze v. Ammon, 990 F.3d 264, 268-

69 (2d Cir. 2021); Ctr. for Biological Diversity v. EPA,

937 F.3d 533, 543 (Sth Cir. 2019); Lyshe v. Levy, 854

F.3d 855, 859 (6th Cir. 2017); New Mexico v. Dep't of

the Interior, 854 F.3d 1207, 1215-16 (10th Cir. 2017);

Salmon Spawning & Recovery All. v. U.S. Customs &

Border Prot., 550 F.3d 1121, 1182 (Fed. Cir. 2008);

Nulankeyutmonen Nkihitaqmikon v. Impson, 503 F.3d

18, 26-28 (1st Cir. 2007); Sierra Club v. Johnson, 436

F.3d 1269, 1278 (11th Cir. 2006); Bensman v. U.S.

Forest Serv., 408 F.3d 945, 951-53 (7th Cir. 2005);

Hodges v. Abraham, 300 F.3d 432, 444 (4th Cir. 2002).

14

These tests derive from Lujan, which recognized

Article ITI allows litigants to enforce procedural rights

“so long as the procedures in question are designed to

protect some threatened concrete interest of his that

is the ultimate basis of his standing.” 504 U.S. at 573

n.8.4 The D.C. Circuit is an outlier. This clear circuit

split requires certiorari to resolve it.

2. This circuit split raises grave concerns because

it effectively eliminates all procedural rights in the

D.C. Circuit, which reviews innumerable agency

actions. The D.C. Circuit’s test uses plaintiffs’

demonstration of concrete harm to prove they have no

procedural right. App. 14a. It creates two categories of

dismissals for procedural-rights cases:

e Category 1: Plaintiff demonstrates a procedural

right, but no concrete injury. No standing.

TransUnion, 594 U.S. at 417 (“No concrete

harm, no standing.”).

e Category 2: Plaintiff demonstrates concrete

injury. Then, Plaintiff cannot establish a

procedural right. App. 14a. No standing.

By effectively eliminating procedural-rights, this

result contradicts this Court’s repeated holdings that

procedural rights exist. See, e.g., Dep’t of Educ., 600

U.S. at 561-62; Lujan, 504 U.S. at 573 n.8 (collecting

cases).

The doctrines on procedural-rights standing need

clearer rules, so courts can hold agencies accountable.

“(C]jourts benefit from straightforward rules under

4 The “designed to protect” standard adopts the zone-of-interests

test. See Lexmark Int'l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 1380 n.5 (2014); Lujan v. Nat’ Wildlife Fed’n, 497

U.S. 871, 886 (1990) (using the “designed to protect” language for

the zone-of-interests test).

15

which they can readily assure themselves of their

power to hear a case.” Hertz Corp. v. Friend, 559 U.S.

77, 94 (2010). Without addressing this split, the

Government will harm more people without courts

taking jurisdiction. “In this world, real people are

injured by actions taken without lawful authority.”

Collins v. Yellen, 594 U.S. 220, 279 (2021) (Gorsuch,

J., concurring in part). The D.C. Circuit created an

outlier test for determining procedural rights, and it

effectively precludes procedural-rights standing. The

courts of appeals need this Court’s guidance.

II. Certiorari is necessary to provide guidance

on whether, after plaintiffs demonstrate an

agency action caused them concrete harm,

Article ITI allows courts to require plaintiffs

to establish fair traceability a second way

before claiming the agency based its action

on an improper legal ground.

Article III gives courts no power to add additional

standing requirements. Plaintiffs can often prove

standing “in various ways.” See Ariz. Christian Sch.

Tuition Org. v. Winn, 563 U.S. 125, 129 (2011). When

litigants carry their burden, Article III requires courts

to assert jurisdiction and to consider the merits. New

Orleans Pub. Serv., Inc. v. Council of City of New

Orleans, 491 U.S. 350, 358 (1989); Hyde v. Stone, 61

U.S. 170, 175 (1857) (“the courts of the United States

are bound to proceed to judgment and to afford redress

to suitors before them in every case to which their

jurisdiction extends.”). Article III prohibits courts

from dismissing cases because the plaintiff did not

prove standing in the way the court would have

preferred. See Willcox v. Consol. Gas Co., 212 U.S. 19,

40 (1909) (“When a Federal court is properly appealed

16

to in a case over which it has by law jurisdiction, it is

its duty to take such jurisdiction.”).

1. Citizens proved an agency action caused their

concrete injury, and that demonstrates fair

traceability. When a plaintiff alleges a defendant’s

action caused them concrete injury, and when the

defendant based that action “upon an improper legal

ground,” the plaintiff has demonstrated fair

traceability. Akins, 524 U.S. at 25; see Ted Cruz for

Senate, 596 U.S. at 297 (“an injury resulting from the

application ... of an unlawful enactment remains

fairly traceable to such application.”); Data Processing

Serv. v. Camp, 397 U.S. 150, 152 (1970) (recognizing

standing if “the challenged action has caused [the

plaintiff's] injury in fact.”); see also Collins, 594 U.S.

at 264 (Thomas, J., concurring) (recognizing fair

traceability when “the shareholders allege the

Government acted unlawfully, [and] their alleged

injury can be traced to those allegedly unlawful

actions....”).

Citizens demonstrated fair traceability because

the Report caused Citizens’ New York and

Pennsylvania members’ vote-dilution injuries by

stating “-1” next to those states’ apportionments. App.

54a, 55a. A single citizen’s “loss of a Representative to

the United States Congress undoubtedly satisfies the

injury-in-fact requirement of Article III standing.”

Dep't of Commerce, 525 U.S. at 331; Reynolds v. Sims,

377 U.S. 533, 567 (1964) (“To the extent that a

citizen’s right to vote is debased, he is that much less

a citizen.”).

No one disputed that chain of causation here. Both

courts admitted the Report caused Citizens’ members’

states to lose seats. App. 21a; App. 38a. That injury

will last until at least the next reapportioned

legislature sits in 2088. Proving that causation

17

neither requires speculation nor involves any third

party. This straightforward chain of causation

establishes fair-traceability under Article III.

2. Both lower courts demanded a_ second

demonstration of fair traceability from the legal

violation to the injury. App. 18a-20a (“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”); App. 44a (same). Article III, however,

does not require plaintiffs to prove that in addition to

showing the agency action cause the concrete injury.

When a plaintiff establishes “standing to request

invalidation of a particular agency action,” it may

raise “all grounds on which the agency may have failed

to comply with its _ statutory mandate.”

DaimlerChrysler, 547 U.S. at 353 n.5 (quotations

omitted, emphasis added). Every National

Environmental Policy Act of 1969 (NEPA), 42 U.S.C.

§§ 4321-4347, case proceeds on this basis. The agency

decision (like building a dam) causes the injury,

Lujan, 504 U.S. at 572 n.7, but the legal violation

happens earlier—when the agency fails to give an

opportunity to comment, Summers, 555 U.S. at 497,

or when it fails to develop mitigation measures for

environmental impacts. Robertson v. Methow Valley

Citizens Council, 490 U.S. 332 (1989). The lower

courts required the wrong proof of fair traceability.

3. Effectively, the lower courts required Citizens to

prove the findings the Census Bureau would make in

a counterfactual world. But Article III does not

require that proof. See Seila L. LLC v. CFPB, 591 U.S.

197, 211 (2020); Free Enter., 561 U.S. at 512 n.12

(“petitioners’ standing does not require precise proof

of what the Board’s policies might have been in that

18

counterfactual world.”). The district court rejected

Citizens’ proof of fair traceability as insufficient

because they did not “show that their states would

have had an additional representative but for the

government's error.” App. 43a. The D.C. Circuit also

concluded Citizens’ “factual allegations are not

enough.” App. 19a. It demanded more proof to

“establish that there is a comparable ‘feasible,

alternative methodology’ that would have produced a

different result” and accounted for “the entire story.”

App. 19a-20a. It demanded Citizens also show the

impacts of the Reduction Clause on New York,

Pennsylvania, and Virginia and show, for a

counterfactual world, that New York and

Pennsylvania would not have lost a seat, anyway.

App. 18a-19a. When Citizens did not provide that

evidence—because they already demonstrated fair

traceability—the D.C. Circuit dismissed the case.

App. 19a-22a.

This Court has rejected arguments that Article III

requires malapportionment plaintiffs to prove the new

apportionment would cure their injury. Baker v. Carr,

369 U.S. 186, 208 (1962) (“It would not be necessary

to decide whether appellants’ allegations of

impairment of their votes by the 1901 apportionment

will, ultimately, entitle them to any relief, in order to

hold that they have standing to seek it.”); cf.

Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 463-

64 (2017) (“Of course, the lawsuit—like any lawsuit—

might prove fruitless, but the mere possibility of

failure does not eliminate the value of the claim or

petitioners’ injury in being unable to bring it.”).

Moreover, this Court affirms plaintiffs’ standing for

malapportionment claims when they “placed before

the court their own plan” that demonstrated a “closer

approximation” to the legal ideal—even if “their

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