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.
2

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twenty-one years of age’ has been superseded by the Nineteenth and 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).
3

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 
4

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, 
5

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 thenexisting 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 
6

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/congressionalapportionment/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/publicsector/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 
7

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.
8

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 voterID 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 
9

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. 
10

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.
11

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 
12

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, 
13

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 
14

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 
15

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-NashShe-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 
16

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. 
17

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 
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, 
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 
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., 
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.
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 
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 
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.
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
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].
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.
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 
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. 
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 
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 TwentyFourth 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/gsaproperties/visiting-public-buildings/william-b-bryant-annex/whatsinside/history (Jan. 21, 2024) [perma.cc/836T-ASG8]. 
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 
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.”).