of Commerce and the Bureau of the Census should 'count * * * people' while the President, 'with (their) figures in hand', would report the census figures together with a table showing 'how, under these figures, the House would be apportioned * * *.' S.Rep.No. 2, 71st Cong., 1st Sess. 4 (1929).
When the legislation (S. 312) was before the House of Representatives for consideration, congressman Tinkham of Massachusetts offered several amendments. One of those amendments would have required the Director of the Census to include in each decennial census 'the number of inhabitants in each State being 21 years of age and citizens of the United States, whose right to vote at the election next preceding such census 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 has been denied or abridged except for rebellion or other crime.' 71 Cong.Rec. 2271 (1929).
A second Tinkham amendment would have included within the restricted census inquiries one relating 'to the denial or abridgment of the right to vote.' Id. And the third Tinkham amendment would have the President's statement to Congress exclude from the whole number of persons in each State not only untaxed Indians but also 'the number of inhabitants in each State whose right to vote has been denied or abridged.' Id.
In giving notice of offering the amendments, Congressman Tinkham stated that they provided 'for the carrying out of the provisions of the constitutional amendment (sectio
, Fourteenth Amendment) in full in the most practical way possible, namely, the collection of statistics to ascertain as nearly as can be the number of persons who are disfranchised.' 71 Cong.Rec. 2271 (1929). At one time during the consideration of the legislation, one of Congressman Tinkham's amendments was adopted by the House. Id. at 2364. But before final passage the amendment was eliminated. Id. at 2483.
Thus, Congress in 1929 denied defendants the authority plaintiffs now claim for those officials. And Congress has not since changed its position.
In enacting the Civil Rights Act of 1964, Congress did grant the Secretary of Commerce authority to collect and compile limited registration and voting statistics. Section 801, Title VIII of the Civil Rights Act of 1964 (78 Stat. 266, 42 U.S.C.A. 2000f). However, the Secretary may not compel any person to furnish any pertinent information as he can when taking the census. 13 U.S.C. §§ 221-225 (1958). The Civil Rights Act of 1964 does not implement section 2 of the Fourteenth Amendment. When under consideration in both the House and the Senate this was made clear. Congressman Stratton expressed this understanding when he stated (110 Cong.Rec. 2768 (1964)):
'Title VIII as it now stands is at least a step in the direction I have proposed that we go, that is, toward the full enforcement of the second section of the 14th Amendment. It does not, however, require an immediate new census nor does it give the Bureau of the Census the authority, as I personally believe it should be given to determine not only the extent of the abridgment of voting rights in this country but also the extent to which the representation of various States must be correspondingly reduced by reason of this voting abridgment.'
Both before and since the enactment of the Civil Rights Act of 1964, attempts have been made to implement section 2 of the Fourteenth Amendment. Thus far none has succeeded. As recently as February 17, 1965, Senator McNamara renewed his attempt to enact legislation which would achieve the purpose of section 2. In introducing his bill -- S. 1101, 89th Congress, 1st Session -- he said, 'Congress has shirked its responsibility for enforcing this provision (section 2, 14th Amendment) with the legislative machinery.'
The courts also have recognized that Congress has never implemented section 2 of the Fourteenth Amendment. In Saunders v. Wilkins, 152 F.2d 235, 237-38 (4th Cir. 1945), cert. denied, 328 U.S. 870, 66 S. Ct. 1362, 90 L. Ed. 1640 (1946), it was said: 'It is well known that the elective franchise has been limited or denied to citizens in various States of the union in past years, but no serious attempt has been made by Congress to enforce the mandate of the second section of the Fourteenth Amendment, * * *.' See also United States v. Sharrow, 309 F.2d 77 (2d Cir. 1962), cert. denied, 372 U.S. 949, 83 S. Ct. 939, 9 L. Ed. 2d 974 (1963); Dennis v. United States, 84 U.S.App.D.C. 51, 171 F.2d 986 (1948), aff'd, 339 U.S. 162, 70 S. Ct. 519, 94 L. Ed. 734 (1950).
If plaintiffs had standing to sue I would rule that the Code sections relied on by them do not direct or authorize the defendants to exclude disfranchised citizens in taking the census and to compute a statement showing a reapportionment of Representatives on the basis of such exclusion. But plaintiffs contend that to so hold would require 2 U.S.C. § 2a (1958) and 13 U.S.C. §§ 4, 5, 11, 21 and 141 (1958) to be declared unconstitutional, null and void. Plaintiffs cite no authority for that contention.
I have found none. On the other hand, United States v. Sharrow, 309 F.2d 77, 79-80 (2d Cir. 1962), cert. denied, 372 U.S. 949, 83 S. Ct. 939, 9 L. Ed. 2d 974 (1963), held: 'Irrespective of the Fourteenth Amendment's mandate the Congress, in the present state of the law, is not required to prescribe that census-takers ascertain information relative to disfranchisement. * * * There was nothing unconstitutional in the omission from the census form of a question relating to disfranchisement.' And Chief Judge Lumbard stated in his concurring opinion: 'There is no language in the Constitution which directs that the Congress designate the census questionnaire as the means to determine disfranchisement. Although the 1960 census may have provided an occasion to make that factual determination, * * * it cannot be said to be the constitutionally required means.'
If plaintiffs had standing to sue I would grant defendants' motion for summary judgment.
But since they do not I grant defendants' alternative motion to dismiss.