Can this Forgotten Section of the Constitution Save Voting Rights?
The defining theme of America's political history is the expansion of the promise that "all men are created equal" to include greater and greater shares of our body politic. From the smallest share of rich, white, Christian men to women and people of color and, hopefully, everyone. Central to that struggle has been the effort to secure universal suffrage, the most fundamental security of a democratic system.
To be sure, this effort has not been easy. Those on the wrong side of history have always stood up and given their best college try to restrain justice. Every victory for voting rights has been answered by a new, ever more creative restriction by the enemies of democracy. Ruth Bader Ginsburg once compared voting restrictions to the mythical Hydra. "Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place." First it was outright prohibitions. Then it was poll taxes. Then it was having to count the bubbles in a bar of soap. Now we have discriminatory voter ID laws and redistricting to diminish the voting power of black voters. More than a century after the 14th amendment's adoption, how are we still incapable of ensuring equal protection?
In some part, this shortcoming is due to the process we have for correcting voter suppression. Before anti-voting laws can be overturned, they must be executed, harm someone's rights, and then be proven illegal in court. And that has to happen for every single law. Until 2013 we had a decent system to catch discriminatory laws before they went into effect. The Voting Rights Act of 1965 required places with a history of voter discrimination to get prior approval from the Department of Justice before they made any changes to their voting laws. This law prevented thousands of suppressive voting policies from ever taking effect, but the list of covered jurisdictions was struck down by the Supreme Court in the 2013 case of Shelby County v. Holder. There has been some effort to revive the preclearance practice, but I wouldn't hold my breath. In the mean time, we are left with no large-scale mechanism to prevent voter discrimination.
Or are we? One often overlooked section of the constitution might hold the key to saving voting rights.
The most famous section of the 14th amendment is definitely the first, which guarantees citizenship to every American and ensures equal rights for all. But there's a lot more to the amendment, and this article will examine section 2, which reads as follows:
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 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.
After repealing the three-fifths compromise, this section creates a punishment for states that "in any way abridge" the right to vote: they have their representation in Congress taken away. While the section specifies only those voters who are male and over twenty one, experts argue that those qualifications were modified by the 19th and 26th amendments. Taking this amendment to be updated by subsequent constitutional development, then, yields a proportional consequence for disenfranchisement. Abridge the right to vote of ten percent of your voters, and you lose ten percent of your seats in the House.
Thaddeus Stevens, the radical Reconstruction leader and proponent of section 2
The reduction of representation was also written into federal law, where it remains as 2 USC 6. Nevertheless, it has never been enforced; a state has never had its Congressional delegation reduced due to disenfranchisement. Although implementing it now would be challenging, post-Civil War leaders saw it as a key disincentive against disenfranchisement, viewing it as the "most important section in the article." Its potential genius is that it directly counters the political motivation lawmakers have to disenfranchise their opponents by adding political disincentives. Obviously, states would have to give up some of their power in Congress — a high cost on its own — but the politicians responsible for the discrimination would also pay a price at the ballot box. "Don't vote for Governor Beauregard," opponents could say in the next election. "He hurt our state by signing a racist law that lost us seats in Congress!" There is also a sense of justice in knowing that governments couldn't disenfranchise people and get away scott free.
That's all well and good, but the presence of a never-enforced provision of the constitution raises some questions. First, does it even apply anymore? Some people argue that section 2 was effectively repealed by the 15th amendment, which prohibits any racial discrimination in voting. Since racial voter discrimination is already outlawed, they say, its previously adopted consequences are null and void.
While it might sound appealing, this argument ignores some important historical context. First of all, the federal statute mandating delegation reduction as specified in the 14th amendment (2 USC 6), was passed by Congress in 1872, two years after the 15th amendment was ratified. If section 2 was nullified by the 15th amendment, Congress would not have subsequently incorporated its procedures into law. Secondly, the framers of the 14th amendment specifically chose to make section 2 more expansive than the 15th amendment, which only deals with racial discrimination. The House of Representatives originally passed a version of this section that limited the delegation reduction to cases of racial discrimination, but that version was rejected by the Senate as too narrow. In response, the Joint Committee on Reconstruction proposed a new version that was eventually adopted into the 14th amendment. So the 15th amendment couldn't possibly supplant another provision that was specifically designed to be more wide-reaching. Finally, the Supreme Court has suggested several times that section 2 remains in effect, including in the 1985 case of Hunter v. Underwood, in which the Court stated that "section 2 was not designed to permit the purposeful racial discrimination," as the repealed-by-15th-amendment argument assumes.
John Roberts delivers his opinion gutting the VRA in Shelby County, with Ginsburg looking especially displeased
Another obstacle in the way of enforcing section 2 is identifying and quantifying instances of disenfranchisement. Finding cases of voter suppression is not hard, especially since VRA preclearance was struck down in Shelby County. Courts across the country have invalidated state voter ID laws as discriminatory, including a North Carolina law that, according to a federal appeals court, "targeted African Americans with almost surgical precision." Jurisdictions previously covered by preclearance have embarked on a massive campaign to eliminate polling places, especially in predominately black areas. Courts have also ruled that partisan gerrymandering abridges the right to vote, such as the Pennsylvania Supreme Court, which held that that state's gerrymandered map violated the state constitution's guarantee of "free exercise of the right of suffrage." All of these instances would unambiguously count as the right to vote being "in any way abridged" under section 2.
The more challenging task would be quantify what share of voters are impacted by voter suppression, which would be necessary in order to reduce that much of the Congressional delegation. The first difficulty is that disenfranchizing policies are not super precise. Any number of voters disenfranchized by any policy would be an estimation. Another problem is that the number of disenfranchised voters would have to be relatively large in most states in order to effect the Congressional delegation. The median state by delegation size is Kentucky, with its six representatives. Thus, in order to lose one seat, Kentucky would need need to abridge the voting rights of about 16 percent of its voters. North Carolina, with its surgically precise racism, would need around 8 percent for one seat. Of all the usual anti-voting suspects, Texas would have the lowest threshold at 3 percent.
With all of that said, the language of the 14th amendment lends itself to expansive estimates of disenfranchisement. Section 2 applies this punishment to states when the "deny...or in any way abridge" the right to vote. The "in any way abridge" provision obviously allows for any restriction to count towards the disenfranchised total, not just the most severe policies.
Numerical estimates of disenfranchizement are not currently common. The only one I could find came from a 2014 district court opinion striking down a Texas voter ID law, finding that it disenfranchized about 600,000 Texans. (I should note that this ruling was later overturned by the appeals court.) Those 600,000 disenfranchized Texans would be enough to reduce the Texas Congressional delegation by one or two members.
If there was a concerted effort to quantify the extent of voter suppression, the estimates would surely increase. Every polling station closed, every DMV open two days per month, every form of ID eliminated from use, every day of early voting cut short — these all "in some way abridge" the right of people to vote. If 4.5 percent of Texas voters lacked an acceptable voter ID in the 2014 case, the amount of people disenfranchized by all the various voter suppression policies would almost certainly be enough to have a great effect until they are finally eliminated.
The final hurdle to seeing section 2 through to implementation would be to develop an actual implementation mechanism. The framers of the amendment weren't nice enough to detail how the policy should be carried out, and neither was Congress when they wrote 2 USC 6. So any effort to enforce section 2 would have to establish its own precedent. Some have suggested suing the Clerk of the House of Representatives to prevent them from certifying the size of each state's delegation. In 1945, Henry Saunders sued the government of Virginia attempting run for Congress representing the state at-large, alleging that the delegation should be reduced according to section 2 because of a poll tax. The court dismissed his case as a political question.
It would certainly be seen as political for any other arm of government to enforce this section as well, so any attempt to leave this duty to the executive branch would have to strive for non-partisanship. The most obvious enforcement agency would be the Department of Justice, which could establish an office for this purpose with independence like the FBI. Another option is an independent commission like the FEC, which is run by an equal number of Republican and Democratic commissioners.
Such agencies could survey voting laws and establish the extent of their suppressive impact. It could work with the nonpartisan administrative staff of the House to determine the appropriate size of each delegation. Any reduction would certainly be subject to litigation. Reviewing these reductions could be left up to the DC Circuit court, but the potential volume of complaints might warrant the creation of special court, like those for foreign surveillance and benefits claims, with appeal either to appellate courts or the Supreme Court.
The difficulties would not end once a delegation reduction finally occurred. Then would arise the matter of what the new delegation would look like. Would it be composed of several at-large Representatives, like Henry Saunders sought? Or would the state have to create new Congressional districts for the smaller delegation? Both of these strategies could eliminate minority representation, both political and racial. In the modern political landscape, the party of voter suppression is the GOP. Should a state with a GOP government be punished under section 2, the ruling Republicans could use the opportunity to knock out the remaining Democratic Representatives. If at-large elections would run, the majority GOP population would probably just elect a complete slate of Republican members, leaving Democrats with no representation. If the state government created new districts, it could gerrymander Democrats and people of color out of relevance.
These potential pitfalls highlight the need for further election reform even if section 2 were enforced. Gerrymandering can be solved by entrusting district creation to independent commissions or neutral algorithms, rather than the politicians who depend on district lines to stay in office. Political minorities can be better protected by proportional representation than our current first-past-the-post system. And don't even get me started on the Senate and the godforsaken Electoral College. But even if we don't have a system where everyone's participation is best translated into electoral results, we should at the very least have a system where no one is shut out from participating in the first place. The framers of the 14th amendment gave us a radical tool to ensure that equality. We should at least consider using it.