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Wednesday, September 18, 2013

Has the Moment in the Sun Finally Arrived for Section 2 of the Fourteenth Amendment?

I blogged  not long ago about my argument that the Fifteenth Amendment impliedly repealed Section 2 of the Fourteenth Amendment.  Section 2 imposes a penalty of reduced representation for states denying the right to vote, at least potentially implying that states have the right to do it.  Meanwhile, the Fifteenth Amendment prohibits states from denying the right to vote on the basis of race.  It seems to me that Section 2 and the Fifteenth Amendment are basically inconsistent.  Since Section 2 has never been applied in spite of decades of race-based disenfranchisement, some explanation for its somnescence is called for. 

Franita Tolson responded in a comment that "[u]nlike the Fifteenth Amendment, section 2 is not limited to abridgments of the right to vote based on race, which is a powerful source of authority to address facially neutral abridgments of the right to vote."  Similarly, in their fascinating Yale Law Journal article Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments, Richard Re and Christopher Re likewise argue that Section 2 is not limited to race.  My argument fails if Section 2 applies in any case where the Fifteenth Amendment does not, so if they are right, I am not.  These scholars do have the plain language of the text in their favor:

The relevant language 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.

True, Section 2 nowhere mentions race.  True, considered in isolation from the circumstances of its enactment, Section 2 seems to contemplate universal adult male suffrage, it seems to have decided (by prohibiting) almost all of the voting issues Americans have fought about since: poll taxes, literacy tests, registration requirements, voter ID, long lines at polls, etc.  If the right to vote is "in any way abridged" for any reason other than those expressly listed, the state loses House seats and electors.

In my paper, I concluded that the fact that the Constitution was often euphemistic about slavery--including in the very apportionment provision which Section 2 replaced, which referred to 3/5ths of "all other persons"--left room for Section 2 to be understood as applicable only to African Americans.  It also struck me that amendments often repealed the text they replaced by implication, rather than expressly, again, including in the very apportionment provision which Section 2 replaced.

Section 2 seemed to be a Solomonic threat, meant to induce action rather than to be carried out.  It would work well if a state prohibited categories of people from voting by statute.  But, if discriminatory governments, none of which were accused of lacking creativity in their efforts to disenfranchise African Americans before or after passage of the Fourteenth Amendment, used tricks and as-applied discrimination, of the non-voting African American males, it would be very hard to figure out how many were denied the right to vote, and how many simply failed to vote.  This problem would be much compounded if Section 2 applied to things like denial of the right to vote for failure to pay poll taxes or to have ID.  When it was clear that Section 2 did not induce compliance, Congress and the states immediately moved to Plan B, the Fifteenth Amendment.

But I admit the possibility that I am wrong, and that the Constitution since 1868 has provided for punishment of states refusing to implement universal adult (male?) suffrage.  The Supreme Court has held that apportionment claims under Section 2 are justiciable, so there is apparently nothing standing in the way of a test case.  Given that serious scholars claim that Section 2 is a valid and existing part of the Constitution, I hope the ACLU, NAACP LDF and other groups interested in protecting voting rights will litigate it. 

Posted by Jack Chin on September 18, 2013 at 05:25 AM | Permalink


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Thanks for your post Jack, very interesting. I agree that implementation of the penalty could be tricky (which is probably why it has lain dormant for so long). In my draft article, "The Constitutional Structure of Voting Rights Enforcement," I deal with this issue by suggesting that section 2 could have implications for congressional enforcement authority beyond the penalty of reduced representation because of language in section 5 that gives Congress the authority to enforce all of the provisions of the Fourteenth Amendment through appropriate legislation (including section 2). Congress arguably could impose penalties other than reduced representation under section 2 to address racially neutral abridgments of the right to vote. The draft is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2303155.

Posted by: Franita Tolson | Sep 18, 2013 8:38:22 AM

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