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Wednesday, October 05, 2016

The Two Sections 2s and Some Thoughts on Frank v. Walker

Thanks for having me this month. My scholarship focuses on election law and federalism. In the last few years, I have written about Section 2 of the Fourteenth Amendment and the Elections Clause of Article I, Section 4. Section 2, in particular, rarely gets any attention from the courts or the scholarly literature. In fact, Michael Morley (also blogging this month) and I are among the few scholars who have written about this provision at length. My forthcoming book, A Promise Unfulfilled: Section 2 of the Fourteenth Amendment and the Future of the Right to Vote, will hopefully bring Section 2 out of the obscurity in which it has languished for over 100 years.

In my book, I argue that the scope of Congress’s enforcement authority under Section 5 of the Fourteenth Amendment should be read in light of Congress’s authority to reduce representation pursuant to Section 2. Section 2 allows Congress to reduce the state’s representation in the House if the state abridges or denies the right to vote. It is the only provision of the Fourteenth Amendment that actually mentions voting, and it can provide guidance to courts in determining the nature of substantive voting rights violations and the appropriate remedy. Section 2 has never been enforced, although Congress has threatened to use it at various points, most notably in the wake of the disenfranchisement of African-Americans through various state constitutions in the 1890s. In my view, if the Fourteenth Amendment is interpreted through the lens of Section 2, then Congress’s power to enforce its terms through “appropriate legislation” also includes the authority to impose lesser penalties than reduced representation in effectuating the goal of broad enfranchisement that underlies Section 2.  

One of the implications of incorporating Section 2 back into the interpretive framework of the Fourteenth Amendment is that, contrary to current caselaw, Congress does not have to establish that states engaged in a pattern of racially discriminatory behavior in order to enact voting rights legislation. Section 2 does not require that the state act with racially discriminatory intent in abridging the right to vote; the provision does not reference race and is triggered whenever the right to vote is abridged or denied.

In a recent article, I explored the implications of this argument for the constitutionality of Section 2 of the Voting Rights Act. Section 2 of the VRA, like Section 2 of the Fourteenth Amendment, also penalizes abridgments or denials of the right to vote, but unlike the latter, Section 2 of the VRA speaks in terms of race based denials or abridgments. Some commentators have suggested that Section 2 of the VRA, which extends beyond the substantive mandates of the Fifteenth Amendment, might be unconstitutional because the statute’s use of race-conscious remedies and its focus on the racially discriminatory effect of various state laws unduly infringes the states’ sovereignty over elections.

My article dispels any notion that Congress must establish a record of racially discriminatory behavior by states before it can enact a statute like Section 2 of the VRA (which I will discuss in another post). For purposes of the upcoming election, I want to focus on another question: what types of state laws abridge or deny the right to vote? Arguably, Section 2 of the Fourteenth Amendment informs which types of laws count as abridgments and therefore might run afoul of Section 2 of the VRA, which also speaks of abridgment. A good case study is the Wisconsin voter identification law, which has been the subject of challenges in both state and federal court. I want to focus on two of the opinions that emerged over the course this litigation – the Seventh Circuit panel opinion in Frank v. Walker upholding the law and Judge Posner’s dissent from the Court’s refusal to hear the case en banc.

In rejecting the facial challenge to the law, the Seventh Circuit adopted a reading of Section 2 of the VRA that raised the evidentiary burden to one that would essentially require plaintiffs to show that the voter identification law amounts to an absolute barrier to voting. The Frank majority observed that Section 2 of the Voting Rights Act “does not condemn a voting practice just because it has a disparate effect on minorities,” and concluded that the voter identification law did not violate Section 2 because African-Americans had high voter registration rates overall. As Wisconsin’s voter-identification law will only impact about two percent of the electorate and still leave African-American turnout significantly high, the discriminatory effect of the law was too small, in the court’s view, to violate Section 2. Frank raises important questions about the degree of disenfranchisement required to violate federal law. How many people have to be disenfranchised before a law will be found to violate Section 2 of the Voting Rights Act?

Section 2 of the Fourteenth Amendment, and its penalty of reduced representation, provides substantial guidance on this question. During the congressional debates that preceded the enactment of Section 2, Congress rejected language in draft Section 2 that would have excluded “all persons of such race or color . . . from the basis of representation” whenever the right to vote is abridged. Pursuant to this language, discrimination against one African-American could have conceivably removed the entire population of African-Americans from the state’s basis of representation. Instead, Section 2 removes only the number of citizens whose right to vote has actually been abridged, which implies that some abridgment is inevitable but there is no minimum threshold that must be crossed before the penalty of Section 2 is triggered.

This legislative history provides broad support for an approach to Section 2 of the VRA in which the degree of disenfranchisement is part of the court’s overall “totality of the circumstances” assessment of whether the statute has been violated, as opposed to serving as an absolute bar to Section 2 liability if the effect is minimal. For this reason, the Seventh Circuit’s speculation that less than two percent of minority voters will be impacted by Wisconsin’s voter-identification law (and is therefore insufficient to show a discriminatory effect in violation of Section 2 of the VRA) misses the point.

Indeed, if a regulation is enacted with very little empirical or evidentiary support as to its necessity, then an impact of two percent of the electorate not only runs afoul of Section 2 of the Voting Rights Act, but it is exactly the type of regulation that would trigger the penalty of Section 2 of the Fourteenth Amendment. Not only is two percent significant in close elections, but as Judge Posner points out in his dissent from the denial of rehearing en banc: “There is evidence both that voter-impersonation fraud is extremely rare and that photo ID requirements for voting, especially of the strict variety found in Wisconsin, are likely to discourage voting. This implies that the net effect of such requirements is to impede voting by people easily discouraged from voting, most of whom probably lean Democratic” and, as recent events have borne out, tend to disproportionately be people of color. Thinking about voter identification laws within the broader context of Section 2 of Fourteenth Amendment suggests that the facial challenge should have succeeded, but this is of very little comfort to those voters who, thanks to state DMVs, probably won’t have the requisite ID before the upcoming election.

Posted by Franita Tolson on October 5, 2016 at 10:10 AM | Permalink

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