Amicus Curiae Brief — Citizens for Constitutional Integrity, Petitioner v. Census Bureau, et al.

No. 24-1102

IN THE

Supreme Court of the United States

CITIZENS FOR CONSTITUTIONAL INTEGRITY,

Petitioner,

v.

CENSUS BUREAU, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE MICHAEL L. ROSIN IN

SUPPORT OF PETITION FOR CERTIORARI

PETER K. STRIS

STRIS & MAHER LLP

777 S. Figueroa St., Suite 3850

Los Angeles, CA 90017

MICHAEL N. DONOFRIO

Counsel of Record

STRIS & MAHER LLP

15 E. State Street, 2d Floor

Montpelier, VT 05602

(802) 858-4465

mdonofrio@stris.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................. ii

INTEREST OF AMICUS .................................................. 1

SUMMARY OF ARGUMENT .......................................... 3

ARGUMENT ....................................................................... 6

I.

A Constitutionally Compliant

Apportionment of the House is the First

Constitutional Obligation of the

Government of the Union ........................................ 6

II.

The Penalty Clause’s operation and impact

on House apportionment ......................................... 9

A.

How the Penalty Clause operates .......................... 9

B.

How the Method of Equal Proportions

works ....................................................................... 11

III.

Recent census and other data demonstrate

that the Government of the Union must be

required to enforce the Penalty Clause ............... 14

CONCLUSION .................................................................. 19

-i-

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Citizens for Constitutional Integrity v. Census

Bureau, et al.,

115 F.4th 618 (D.C. Cir. 2024) ......... 4, 5, 6, 8, 15, 18

Evenwel v. Abbot,

578 U.S. 54 (2016) ...................................................... 12

Richardson v. Ramirez,

418 U.S. 24 (1974) ........................................................ 7

Utah v. Evans,

536 U.S. 452 (2002) ...................................................... 8

Veasey v. Abbott,

13 F.4th 362 (5th Cir. 2021) ...................................... 20

Veasey v. Abbott,

796 F.3d 487 (5th Cir. 2015) ............................... 19, 20

Constitutional Provisions

U.S. CONST., Amendment XIV, § 2 ........ 3, 4, 7, 8, 9, 13

U.S. CONST., Article I, § 2, cl. 3 ............................ 9, 15, 16

U.S. CONST., Article IV, § 4 .......................................... 8, 9

Federal Statutes

2 U.S.C. § 6....................................................................... 11

- ii -

13 U.S.C. § 141(a) ............................................................ 10

Appropriations Act of 1998, Pub. L. 105-119, §

209(a)(2), 111 Stat. 2440, 2481 .................................. 10

46 Stat. 21, 26–27 § 22(a)(1), (b), § 22(a)

(codified at 2 U.S.C. § 2a(a))..................................... 15

55 Stat. 761-762 ................................................................ 15

72 Stat. 339, 345 § 9 ......................................................... 15

73 Stat. 4, 8 § 8 ................................................................. 15

Legislative Materials

Cong. Globe, 39th Cong., 1st Sess. 141 (1866) ............ 6, 8

H. Doc. 77-45 .................................................................... 15

Published Authorities

Ethan Herenstein and Yurij Rudensky, The

Penalty Clause & the Fourteenth

Amendment’s Consistency on Universal

Representation, 96 N.Y.U. L. REV. 1021

(2021) ............................................................................ 6

Gerard N. Magliocca, Our Unconstitutional

Reapportionment Process ......................................... 6

LAURENCE F. SCHMECKEBIER,

CONGRESSIONAL APPORTIONMENT (1941) ............. 15

- iii -

Michael T. Morley, Remedial Equilibration

and the Right to Vote under Section 2 of the

Fourteenth Amendment, 2015 U. CHI.

LEGAL F. 279 (2015) .................................................... 6

MICHEL L. BALINSKI and H. PEYTON YOUNG,

FAIR REPRESENTATION: MEETING THE

IDEAL OF ONE MAN, ONE VOTE (2nd ed.

2001) ............................................................................ 15

U.S. Census Bureau, 2020 Census

Apportionment,

https://www2.census.gov/programssurveys/decennial/2020/data/apportionment

/presentation-2020-census-apportionmentresults.pdf ............................................................ 17, 20

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INTEREST OF AMICUS

Amicus curiae Michael L. Rosin is an

independent scholar whose work focuses on the Electoral

College and everything on which it is built. 1 Mr. Rosin has

conducted extensive historical research and analysis

about the interstate apportionment of the United States

House of Representatives and its impact on the Electoral

College. See, e.g., Who Is Excluded From the Basis of

Representation?

The

Trump

Apportionment

Memorandum and Section 2 of the Fourteenth

Amendment, 34(1) S. CAL. REV. OF L. AND SOC. JUST.

JUSTICE 45 (2025); The Three-Fifths Rule and the

Presidential Elections of 1800 and 1824, 15(1) UNIV. OF

ST. THOMAS L. J. 159 (2018). His scholarship also includes

an explanation of why Woodrow Wilson owed his 1916

election defeat of Charles Evans Hughes to Congress’s

failure to enforce Section 2 of the Fourteenth Amendment

following the 1910 census. See The Five-Fifths Rule and

the Unconstitutional Presidential Election of 1916, 46(2)

HIST. Methods 57 (2013). He is at work on a

comprehensive history of the interstate apportionment of

the U.S. House of Representatives. For a complete listing

of his published scholarship, see https://orcid.org/00000001-5029-3073.

Mr.

Rosin’s

research

on

interstate

apportionment—in particular his careful review of the

deliberations of the Thirty-Ninth Congress—formed the

basis of a merits-stage amicus brief in Trump v. New

Undersigned counsel notified counsel for all parties of Mr. Rosin’s

intention to file this brief on May 17, 2025. No party nor party’s

counsel authored this brief in whole or in part, or made a monetary

contribution intended to fund its preparation or submission. No

person other than amicus or his counsel made a monetary

contribution to its preparation or submission.

1

York. See Brief of Amicus Curiae Michael L. Rosin,

Trump v. New York, No. 20-366 (Nov. 13, 2020).

Based on his research on the Electoral College,

Mr. Rosin submitted petition-stage and merits-stage

amicus briefs in Chiafalo et al. v. Washington and

Colorado Department of State v. Baca et al. See Brief of

Amici Curiae Michael L. Rosin et al., Chiafalo, No. 19465 & Baca, No. 19-518 (Mar. 6, 2020); Brief of Amici

Curiae Michael L. Rosin & David G. Post in Support of

Petition for Certiorari, Chiafalo, No. 19-465 & Baca, No.

19-518 (Nov. 6, 2019). He also submitted amicus briefs in

Chiafalo and Baca to the Washington Supreme Court and

Tenth Circuit Court of Appeals, respectively.

Finally, drawing once again on his detailed

historical research, Mr. Rosin submitted a merits-stage

amicus brief in Moore v. Harper. See Brief of Amicus

Curiae Michael L. Rosin in Support of Respondents, No.

21-1272 (Oct. 24, 2022).

-2-

SUMMARY OF ARGUMENT

Section Two of the Fourteenth Amendment states:

But when the right to vote at any election for the

choice of electors for President and Vice President

of the United States, Representatives in Congress,

the executive and judicial officers of a state, or the

members of the legislature thereof, is denied to

any of the male inhabitants of such state, being

twenty-one years of age, and citizens of the United

States, or in any way abridged, except for

participation in rebellion, or other crime, the 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.

Section 2’s Penalty Clause 2 states a mandatory

rule: If a state denies or abridges the right to vote of any

The courts and parties in this case generally refer to this provision

as the “Reduction Clause.” This brief will use the term “Penalty

Clause.” See, e.g., Ethan Herenstein and Yurij Rudensky, The

Penalty Clause & the Fourteenth Amendment’s Consistency on

Universal Representation, 96 N.Y.U. L. REV. 1021 (2021); Gerard N.

Magliocca, Our Unconstitutional Reapportionment Process, 86

George Washington L. REV. 774, 777, 785-87 (2018); Michael T.

Morley, Remedial Equilibration and the Right to Vote under Section

2 of the Fourteenth Amendment, 2015 U. CHI. LEGAL F. 279 (2015).

This term reflects the fact that the clause functions to reduce a state’s

basis of apportionment for representation but not its basis of direct

taxation. It therefore “penalizes” a state that has denied or abridged

its citizens’ voting rights by potentially reducing that state’s

representation in Congress while leaving it on the hook for its full,

existing direct taxation basis. See Cong. Globe, 39th Cong., 1st Sess.

1257 (“I support it for the reason that it settles the basis of

representation and imposes a penalty on States that exclude any class

2

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of its voting-age citizenry, the numerical basis for

determining that state’s representation in the House

“shall be reduced in the proportion which the number of

such [denied/abridged] citizens shall bear to the whole

number of [voting-age] citizens . . . in such state.” Id.

Section Two also states an exception to that rule:

If the state in question denies or abridges the right to vote

of some of its voting-age citizens “for participation in

rebellion, or other crime,” then the number of those

disenfranchised participants “in rebellion, or other crime”

has no impact on the state’s “basis of representation.”

This Court has already addressed the exception.

Richardson v. Ramirez upheld the states’ authority to

deny or abridge the right to vote of its adult citizens who

participate in rebellion or are convicted of felonies. 418

U.S. 24, 49–55 (1974).

It is now time for the Court to invigorate the rule

itself. As Judge Wilkins observed in his concurrence,

When pressed further about which government

actor is responsible for enforcing the Reduction

Clause, if not the [Census] Bureau, the Bureau

took no position, abdicating any responsibility for

congressional action. The Bureau’s response, put

colloquially, was, “Not it.”

Citizens for Constitutional Integrity v. Census Bureau,

et al., 115 F.4th 618, 631 (D.C. Cir. 2024) (Wilkins, J.,

concurring) (cleaned up).

of men on account of race or color. It is in the nature of a penalty.”

(Sen. H. Wilson (R-MA) commenting on predecessor version of

Section 2)).

-4-

As explained in Point I, the government’s

“unacceptable position,” id., cannot be squared with the

indispensable role the Penalty Clause plays in fulfilling

the Constitution’s “guarantee to every State in this Union

a Republican Form of Government,” U.S. CONST., art. IV,

§ 4, elected by the entirety of its adult citizenry (other

than participants “in rebellion, or other crime”). The

Penalty Clause forces a state to ask itself, when

considering a change in the law or other action that might

reduce access to the ballot, “is this change in the law

worth risking losing one or more House seats?”. 3 And if

the Clause goes unenforced, “[o]ne State’s representation

in Congress” can be unconstitutionally “reduced while

another’s is fortified” by means of unconstitutional denial

or abridgment of voting rights. Utah v. Evans, 536 U.S.

452, 509 (2002) (Thomas, J., concurring in part and

dissenting in part) (discussing the use of statistical

methods to estimate the Census count).

Point II then explains how the Penalty Clause

operates and how it affects the interstate apportionment

of the House of Representatives. Finally, Point III applies

the Clause’s mathematics to recent Census figures. That

analysis shows that it is plausible (if not probable) that if

the Census Bureau had collected the information needed

Commenting on an early version of the Penalty Clause, James

Blaine (R-ME) was perhaps the first member of Congress to make

clear the intent to condition a state’s share of its political power in the

federal union on its fully sharing political power among its votingeligible citizenry. See Cong. Globe, 39th Cong., 1st Sess. 141 (1866)

(“The proposed constitutional amendment would simply say to those

States, while you refuse to enfranchise your black population you

shall have no representation based on their numbers; but admit them

to civil and political rights and they shall at once be counted to your

advantage in the apportionment of Representatives.”).

3

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to apply the Penalty Clause, at a minimum New York

would have received another House seat. By showing how

sensitive the process is to very small changes in states’

apportionment bases, it underscores the need for the

courts to intervene, now, and ensure that the executive

branch fulfills its constitutional obligation under the

Penalty Clause. “[T]he 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.” Citizens for Constitutional Integrity,

115 F.4th at 636 (Wilkins, J., concurring). For these

reasons, the Court should grant the petition.

ARGUMENT

I. A Constitutionally Compliant Apportionment of

the House is the First Constitutional Obligation of

the Government of the Union

The Constitution established a compact of rights,

powers, and obligations among the people of the United

States, the states they compose, and the Government of

the Union created by the Constitution. For example, the

Constitution obligates the federal government to

“guarantee to every State in this Union a Republican

Form of Government, and […] protect each of them

against Invasion; and … against domestic Violence.” U.S.

CONST., art. IV, § 4 (emphasis added).

However, the first obligation imposed on the

Government of the Union in the text of the Constitution is

the obligation to make an “actual Enumeration … within

every subsequent Term of ten Years,” U.S. CONST., art. I,

§ 2, cl. 3, in support of the most fundamental political issue

confronting a confederated republic: the allocation of

political power among its confederated members. In our

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constitutional system, this issue plays out in the interstate

apportionment of the House of Representatives (and

consequently the Electoral College).

To fulfill that mandate, the Census Bureau

currently “take[s] a decennial census of population” of

each state every ten years. See 13 U.S.C. § 141(a). As

Congress noted in 1997, “the sole constitutional purpose

of the decennial enumeration of the population is the

apportionment of Representatives in Congress among the

several States.” Appropriations Act of 1998, Pub. L. 105119, § 209(a)(2), 111 Stat. 2440, 2481.

In the wake of the Civil War and Reconstruction,

the framers of the Fourteenth Amendment realized that

more than a simple headcount of the population was

needed to achieve the goal of universal adult male citizen

suffrage so that each state’s government (and its

Representatives and presidential electors) were chosen

by the entirety of its adult male citizenry (except for

participants “in rebellion, or other crime”). Motivated by

the specter of the disenfranchisement of black voters,

they fashioned the Penalty Clause to make sure that the

basis of representation would be adjusted downward to

the extent that any state denied or abridged its adult male

citizens’ rights to vote. The Penalty Clause’s plain

language operates to prevent states from getting

apportionment “credit” for the number of adult citizens

whose rights they deny or abridge.

The 2020 census did not do that. It simply counted

the total number of persons in each state. Full

implementation of the Penalty Clause requires the federal

government to collect two additional sets of data: (1) the

number of voting age citizens in each state; and (2) the

number of voting age citizens in each state whose “right

to vote [in certain elections] is denied … or in any way

-7-

abridged, except for participation in rebellion, or other

crime.” U.S. CONST., amend. XIV, § 2.

The federal government is fully capable of

collecting that data. As Judge Wilkins’s concurrence

explains, “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 count it is

providing accords with the Reduction Clause as well as

the Clause’s statutory codification at 2 U.S.C. § 6.”

Citizens for Constitutional Integrity, 115 F.4th at 636

(Wilkins, J. concurring). Indeed, the decennial census

provides the exact infrastructure needed for this task.

And even if doing so would significantly complicate the

census process, “that is no excuse for the Executive

Branch to abdicate its responsibility to give effect to this

important part of the Constitution.” Id.

More importantly, the government has the

constitutional responsibility to collect the data needed to

effectuate the Penalty Clause. As Judge Wilkins’s

concurrence describes, it is a historically accurate

statement that “neither the [Census] Bureau nor any

other member of the Executive Branch appears to have

meaningfully attempted to figure out how to implement

this constitutional provision. It is as if the Reduction

Clause were written in invisible, rather than indelible,

ink.” Id. at 635. But that fact does not alter the bedrock

principle that “the government has a duty to enforce all of

the Constitution, not just some of it.” Id. at 636.

Therefore, “it is time that the government stop treating

the Reduction Clause as an afterthought.” Id. (cleaned

up).

In sum, it is “unacceptable,” id. at 631, for the

federal government to continue avoiding its obligation to

-8-

enforce the Penalty Clause. In the discussion that follows,

amicus provides a brief explanation of how the Clause

operates and shows that it is plausible (if not likely) that,

had the Census Bureau collected the required data, the

2020 census would have resulted in New York receiving

an additional House seat.

II. The Penalty Clause’s operation and impact on

House apportionment

A. How the Penalty Clause operates

Before providing an illustration of how the Penalty

Clause operates, for ease of reference, here is a version of

the Clause’s text, annotated (with strike-through for

deletions and bold type for insertions) to reflect the

impact of the Nineteenth and Twenty-Sixth

Amendments 4:

But when the right to vote at any election for the

choice of electors for President and Vice President

of the United States, Representatives in Congress,

the executive and judicial officers of a state, or the

members of the legislature thereof, is denied to

any of the male inhabitants of such state, being

twenty-one eighteen years of age, and citizens of

the United States, or in any way abridged, except

for participation in rebellion, 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 eighteen years of age in such

state.

See Evenwel v. Abbot, 578 U.S. 54, 103 n.7 (2016) (Alito, J.

concurring).

4

-9-

The following numerical example demonstrates

how the Clause works, with annotations to show how each

hypothetical figure correlates to the text of the Clause.

Suppose a state has

•

•

•

A total population of 10,000,000 (“the basis of

representation therein” initially, without penalty)

7,000,000 of whom are citizens over the age of

eighteen (“the whole number of male citizens

twenty-one eighteen years of age”)

350,000 of the adult citizenry have had their voting

rights denied or abridged for a reason other than

“participation in rebellion, or other crime” (“the

number of such male citizens” where “such”

denotes voting-age citizens for whom “the right to

vote . . . is denied . . . or in any way abridged”)

In this hypothetical, “the proportion which the

number of such male citizens shall bear to the whole

number of male citizens twenty-one eighteen years of age

in such state,” or the penalty rate, is:

5.00% = 350,000 / 7,000,000

To determine the absolute number by which the

“basis of representation therein” for apportionment must

be reduced, multiply the penalty rate and the state’s total

population:

500,000 = 5.00% * 10,000,000

Therefore, the reduced “basis of representation

therein” for apportionment purposes is:

9,500,000 = 10,000,000 – 500,000

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Table 1 summarizes this calculation:

Population

10,000,000

Adult citizenry

7,000,000

Adult citizens

disenfranchised for reasons

other than “rebellion, or

other crime”

350,000

Penalty rate

5.00%

Penalty number

500,000

Reduced apportionment

basis

9,500,000

Table 1

B. How the Method of Equal Proportions works

In June 1929, more than a year in advance of

receiving the 1930 census data, Congress fixed the size of

the House at its current membership of 435 and

prescribed the mathematical apportionment method by

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statute. 46 Stat. 21, 26–27 § 22(a)(1), (b). 5 In 1941, it

changed the apportionment method from the Method of

Major Fractions to the Method of Equal Proportions, see

55 Stat. 761-762, 6 which remains in effect today. See 2

U.S.C. § 2a(a). Here is how that method works. 7

The Constitution guarantees each state at least

one seat in the House. U.S. CONST., art. I, § 2, cl. 3 (“The

Number of Representatives shall not exceed one for every

thirty Thousand, but each State shall have at Least one

Representative”). The states compete for seats 51

through 435, so as to minimize the total variation of

representatives per person among the states as measured

by percentage at each step in the apportionment. 8

The Method of Equal Proportions begins by

determining each state’s priority factor, and then awards

the next seat to the state with the highest priority factor.

Suppose State X has already been apportioned N seats in

a hypothetical apportionment process. State X’s priority

Section 22(a) (codified at 2 U.S.C. § 2a(a)) instructs the Census

Bureau to deliver “an apportionment of the then existing number of

Representatives.” Congress, of course, has the power to revise the

size of the House as it did in the Alaska and Hawaii Admission Acts

that each added one seat to the size of the House and then called for

the size to be reset to 435 in the apportionment based on the 1960

census. See § 9, 72 Stat. 339, 345; § 8, 73 Stat. 4, 8.

6

This change switched the last seat in the House from Republican

leaning Michigan to reliably Democratic Arkansas. See H. Doc. 77-45,

at 2.

7

See MICHEL L. BALINSKI and H. PEYTON YOUNG, FAIR

REPRESENTATION: MEETING THE IDEAL OF ONE MAN, ONE VOTE

48–55 (2nd ed. 2001); LAURENCE F. SCHMECKEBIER,

CONGRESSIONAL APPORTIONMENT 22–27 (1941). Nothing in this case

depends on the method employed for interstate apportionment.

8

BALINSKI and YOUNG, supra note 7, at 48; SCHMECKEBIER, supra

note 7, at 21-24; 24-27 n.9.

5

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factor is equal to its apportionment basis, A, divided by

√ (N*(N+1)), or

A / √ (N*(N+1))

At each step in the apportionment process (i.e., the

allocation of each House seat from number 51 to number

435), every state’s priority factor is calculated, and the

state with the highest priority factor gets the next seat.

Suppose State X is awarded the next seat, increasing its

apportionment to N+1. As a result, State X’s priority

factor for its (N+2)th seat is decreased from

A / √ (N*(N+1))

to

A / √ ((N+1)*(N+2)).

The addition of a seat always decreases a state’s

priority factor, because it increases the denominator of

that state’s priority factor. For example, every state’s

initial priority factor (when each has only the single seat

assigned by Article I, § 2, cl. 3) is its apportionment basis

divided by √ (1 * (1+1)), or ~1.4142. Following assignment

of the 51st seat, the recipient state’s priority factor for its

next seat is its apportionment basis divided by √ (2 *

(2+1)), or ~2.4495.

The impact of the Penalty Clause on this process

could be significant. Because the Method of Equal

Proportions uses each state’s apportionment basis as the

unchanging numerator of each state’s priority factor, a

Penalty Clause reduction to State X’s apportionment

basis means that State X will have a lower priority factor

at every step of the apportionment process than it would

have, had it not denied or abridged the voting rights of

any of its adult citizenry (for reasons other than

“participation in rebellion, or other crime”).

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III. Recent census and other data demonstrate that

the Government of the Union must be required to

enforce the Penalty Clause

The results of the 2020 census and apportionment

process show that extremely small changes to one state’s

apportionment basis (including via a Penalty Clause

reduction) would have shifted seats among states,

underscoring the paramount need for enforcement of the

Clause. For example, in the 2020 apportionment New

York barely lost out to Minnesota for the 435th House

seat. The 2020 apportionment allocated 26 seats to New

York, and its census count was 20,215,751. 9 Because the

government did not collect the data needed to apply the

Penalty Clause, each state’s census count functioned as its

apportionment basis. Therefore, New York’s priority

factor (rounded to two places to the right of the decimal

point) for an additional, 27th seat in 2020 was:

762,994.35 = 20,215,751 / √ (26*27).

Meanwhile, the 2020 apportionment process

awarded the final House seat to Minnesota, giving it a

total of eight. With a 2020 census count (and therefore also

an apportionment basis) of 5,709,752, Minnesota’s priority

factor for its eighth and final seat was:

762,997.71 = 5,709,752 / √ (7*8).

If Minnesota’s apportionment basis had been

decreased by a mere 26, or 0.0004%, for whatever reason,

its priority factor would also have been decreased to be

U.S. Census Bureau, 2020 Census Apportionment, at 11, available at

https://www2.census.gov/programssurveys/decennial/2020/data/apportionment/presentation-2020census-apportionment-results.pdf.

9

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just smaller than New York’s priority factor for its 27th

seat.

762,994.23 = (5,709,752 – 26) / √ (7*8).

The point of this example is not to suggest that

Minnesota’s eighth seat should be taken away and given

to New York or any other state. Instead, it shows just how

sensitive the apportionment math is to very tiny changes

in states’ apportionment bases. That, in turn, shows just

how significant an impact application of the Penalty

Clause plausibly would have, and therefore how

imperative it is, now, for the courts to ensure that the

executive branch fulfills its constitutional obligation to

enforce it. As Judge Wilkins put it, “it is time that the

government stop treating the Reduction Clause as an

afterthought.” Citizens for Constitutional Integrity, 115

F.4th at 636 (Wilkins, J., concurring). Minnesota was not

an outlier in the 2020 process.

The crossover points (in percentages and absolute

numbers) that would have reduced each state’s priority

factor to be lower than New York’s, for the states that

received the in ascending crossover percentage order

appear in Table 2 below:

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Penalty-Free

NY Crossover

Revised

Apportionment

Priority

Last Seat State House

Percent Absolute Factor

Priority Seat Seat

State

2020

Census

Count

MN

5,709,752 762,997.71 8

435

0.00%

26

762,994.23

MT

1,085,407 767,498.65 2

434

0.59%

6,371

762,993.67

CA

39,576,757 768,516.94 52

433

0.72%

284,400 762,994.35

CO

5,782,171 772,675.10 8

432

1.25%

72,445

762,994.23

OR

4,241,500 774,388.41 6

431

1.47%

62,408

762,994.32

NC

10,453,948 774,898.18 14

430

1.54%

160,592 762,994.31

AL

5,030,053 776,154.03 7

429

1.70%

85,285

RI

IL

TX

1,098,163 776,518.50 2

12,822,739 777,492.75 17

29,183,290 778,290.25 38

428

427

426

1.74%

1.86%

1.97%

19,127 762,993.67

239,114 762,994.34

573,546 762,994.33

762,994.27

Table 2

Litigation concerning Texas’s voter identification

laws also sheds additional light on the real-world impact

of enforcement of the Penalty Clause. Before a Fifth

Circuit panel in 2015, Texas attempted to rebut a claim

that SB 14, a Texas law requiring voters to present certain

types of photo identification in order to vote, was racially

discriminatory by arguing “that there is no disparate

impact where, as here, the gross number of Anglos

without SB 14 ID — 296,156 people — almost totals the

number of African-American, Hispanic, and ‘other’ voters

without SB 14 ID — 312,314 people.” Veasey v. Abbott,

796 F.3d 487, 499, 509 n.25 (5th Cir. 2015). The panel

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affirmed the district court’s conclusion that SB 14

“violates Section 2 of the Voting Rights Act through its

discriminatory effects” and remanded for consideration of

an appropriate remedy. Id. at 520. The en banc Fifth

Circuit then affirmed that finding and directed the district

court to enter an interim remedy. Veasey v. Abbott, 13

F.4th 362, 366 (5th Cir. 2021) (citing Veasey v. Abbott, 830

F.3d 216, 264, 272 (5th Cir. 2016) (en banc)). In 2017, the

Texas legislature essentially turned the interim remedy

the district court had fashioned following the 2016 en banc

ruling into law. Veasey, 13 F.4th at 366-67.

Assume that the figures Texas argued to the Fifth

Circuit in 2015 were a reasonable count of the voters who

had been disenfranchised by SB 14. Under that

assumption, SB 14 denied or abridged the right to vote of

608,470 (296,156 + 312,314) adult citizens. Below, that

hypothetical figure is incorporated into the 2020

apportionment mathematics to show the impact of such a

change in Texas’s apportionment basis.

In the context of the 2020 apportionment process,

reducing Texas’s apportionment basis by 608,470 would

have reduced its priority factor for its 38th and final seat

to be lower than New York’s priority factor for its wouldbe 27th seat, shifting a seat from Texas to New York. As

shown in Table 2 above, a reduction of at least 573,546

would have given Texas a lower priority factor than New

York. Using the denial/abridgment figure Texas argued

in Veasey, Texas’s 2020 apportionment basis would have

been 28,574,802—its 2020 census count of 29,183,290 10 less

608,470. It priority factor for its 38th seat would have been

10

U.S. Census Bureau, 2020 Census Apportionment, at 11,

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762,062.94 = 28,574,820 / √ (37*38)

As explained above, New York’s 2020 priority

factor for a would-be 27th seat was 762,994.35. Therefore,

New York would have received a 27th seat and Texas

would not have received its 38th.

Again, this discussion is not intended to suggest

that a seat should shift from Texas to New York. The

examples discussed above show that collecting and

processing that data—as the Penalty Clause’s plain

language commands—plausibly (if not probably) would

have resulted in a different apportionment of House seats

than the current one. None of this can be known, however,

unless and until the Census Bureau gathers information

on the number of adult citizens whose right to vote has

been denied or abridged in the several states. Given the

government’s position in this litigation—which Judge

Wilkins accurately described as “not it”—the judiciary

must step in to ensure the government fulfills its

constitutional obligation to enforce the Penalty Clause.

“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.” Citizens for Constitutional

Integrity, 115 F.4th at 631 (Wilkins, J., concurring).

*

*

*

available

at

https://www2.census.gov/programssurveys/decennial/2020/data/apportionment/presentation-2020census-apportionment-results.pdf.

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CONCLUSION

For the foregoing reasons, the petition should be

granted.

Respectfully submitted,

PETER K. STRIS

STRIS & MAHER LLP

777 S. Figueroa St., Suite 3850

Los Angeles, CA 90017

MICHAEL N. DONOFRIO

Counsel of Record

STRIS & MAHER LLP

15 E. State Street, 2d Floor

Montpelier, VT 05602

(802) 858-4465

mdonofrio@stris.com

Counsel for Amicus Curiae

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