Caldwell suit faces Constitutional, political problems

Maybe Louisiana Atty. Gen. Buddy Caldwell read this space a couple of years back and decided after he got reelected it was time to go for it. But his suit to redo the apportionment of the House of Representatives based upon the 2010 Census not just is a huge long shot on constitutional grounds, it’s impossible practically to achieve a remedy.

The suit asks that Louisiana be restored a seventh congressional district, on the basis that if citizens only were counted in the census, because of relatively low numbers of non-citizens living in the state compared to others, it would have not lost one of those seats in recent reapportionment. Caldwell insists data collected in this census exists to provide this relief.

This is a tough argument to make.

The original Constitution asked that all enumeration of all “persons” occur, a potentially ambiguous term that possibly could be interpreted to mean something other than a live human. For example, one could argue that the language of the Census Act of 1790, in choosing the word “inhabitants,” consistent with other uses of the word legally at the time, implied congruence with “citizens.” Or, that for a period the courts defined corporations as “persons” under the law, which clearly would not be subject to census. In other words, it argued that Congress can legally define “persons” to exclude non-citizens for enumeration purposes.

However, legislative history already suggests this, such as in the initial Act where Indians were excluded and some non-citizens, slaves, were included (discounted in the Constitution for apportionment purposes at three-fifths). To put it another way, that Congress made affirmative exceptions to what was a “person” means if it also intended to exclude non-citizens, it would have stated that in that instance. Absence of that means it was not intended, so no exclusion means intended inclusion.

Thus, as legislative intent seems clear with following census acts not indicating exclusion of non-citizens, to accomplish the argument it would have to be that the Constitution states this exclusion. While it’s true that the Supreme Court did interpret “person” liberally in assigning, for a period, the definition to include corporations, it rejected that variant decades ago, and current jurisprudence indicates the wording of the Fourteenth Amendment, in that it directs apportionment occur on the basis of “persons,” appears to buttress the argument that, given its standing precedents, the Court does think a “person” is a human being regardless of citizenship for purposes of apportionment.

This means that Caldwell asks the Court, which has original jurisdiction when a state sued the U.S., to provide a new definition of “person.” That will be a very difficult argument to sell, with four members whose rulings consistently display a strict constructionist view of the Constitution, and four others who have shown they have no qualms about making the Constitution read however they want congruent with a political agenda but will understand that kind of redefinition likely will lead to a political outcome undesirable to them (states with disproportionate liberal and Democrat sensibilities will lose representation), leaving little enthusiasm for producing a new judicial meaning for “person” that equates to “citizen.”

The only other possibility here is that there is an equal protection violation, regarding one man, one vote in that states with proportionately more non-citizens dilute the representation of citizens in state with less. But this jurisprudence has been based upon state conduct of elections in drawing boundaries, as defined at a national level by statute and Constitutional interpretation. Again, it would ask a lot to extend the principle to apportionment questions having nothing to do with state conduct of elections.

Yet even if these scenarios happened, relief simply is impossible. Unlike a long string of previous censuses, the 2010 version simply did not ask a question about citizenship status, period. It’s baffling how Caldwell can claim the data are there to make a citizen/non-citizen distinction, and if the Court was to grant him relief, the whole thing would have to be redone. This alone may make the Court hesitate to rule in his favor, even in the improbable circumstance that at least five justices would alter the definition of “person” or a new conception of equal protection gets produced, if the Court even would be willing to inflict on the country the lesser chaos of redoing on the basis of existing data.

Properly regard this attempt as bucking long odds. That doesn’t mean that it isn’t a worthwhile question and pursuit, to reach constitutional clarity on the issue, but that it is extraordinarily unlikely to achieve its end of supplying Louisiana with an additional representative going forward.