Does the 14th Amendment’s Sec. 2 means what it says?
“We swear oaths on the Constitution. We are taught every word; indeed, every comma counts,” writes Michael Meltzner at The American Prospect. Except when they don’t. Until they do:
This month, a special three-judge federal district court, and the Supreme Court eventually, will be asked to resurrect 135 words of the Constitution that have never been enforced, even though they were specifically intended to ensure all Americans could vote free of only the most minor government regulation.
Though few even know of its existence, Section 2 of the 14th Amendment is perfectly clear. It provides that, if any state abridges the franchise of males over 21, “except for participation in rebellion, or other crime,” that state loses the equivalent population numbers counted to determine representatives in Congress. Subsequent amendments to the Constitution erased the gender and age limitations, but the core meaning of Section 2 remains intact.
Whole lotta abridgin’ goin’ on out there. And as I’ve noted before, going unchallenged by that Section 2 provision. That is until Citizens for Constitutional Integrity v. Census Bureau. Lots of attention to the 14th’s due process and equal protection clauses, yes. But Section 2 was included for a reason, Meltzner explains.
Without it, former Confederate states would enjoy greater representation in Congress brought by the elimination of the three-fifths clause. Yet it would mean former rebels would wield disproportionate influence on legislation if they could prevent former slaves from exercising the franchise.
The result was a provision that by its terms applies to almost any means of disenfranchisement, not just racial. Think limiting voting sites and hours, doing away with drop boxes, and many more. In the pending lawsuit, plaintiff’s lawyer Jared Pettinato, a nine-year veteran of the Department of Justice, gives an example of how the provision would work. It is alleged in the suit that Wisconsin’s strict photo ID law, which former GOP staffers have acknowledged was intended to disenfranchise Democrats, results in abridging the votes of some 300,000 voters, approximately 9 percent of the state’s registrants. If Section 2 were applied as intended, Pettinato argues that Wisconsin would lose a congressional district due to this disenfranchisement, a seat that New York, for example, would gain.
With one exception, efforts to end disenfranchisement by applying Section 2 have yielded little except frustration. Unlike today, the Census Bureau in 1870 hadn’t the tools or the manpower to come up with the necessary statistics on how many individuals were intentionally denied the right to vote that year, and it therefore abandoned the effort. Occasional moves over the years by individual legislators were defeated. Once Jim Crow took hold, Southern states were left free well into the 20th century to adopt property and educational tests that made registration impossible for even those Blacks who tried to vote, despite threats of violence or loss of employment. Poll taxes were not finally banned until 1956.
The NAACP Legal Defense Fund (LDF) brought a case in the mid-1960s based on Section 2. Judge Carl McGowan deferred to invoke a Section 2 remedy, citing the recently adopted Voting Rights Act of 1965 as likely to address the issue of disenfranchisement. But, he added, “it is also premature to conclude that Section 2 … does not mean what it appears to say.” That was then, decades before the Roberts Court gutted Section 5 of the Voting Rights Act in 2013’s Shelby County v. Holder ruling.
As I noted, the 15-page Voter Information Verification Act (VIVA) working its way through the North Carolina state legislature at the time underwent an overnight metamorphosis:
[T]he North Carolina State Senate dumped in a laundry list of voter suppression provisions that ballooned HB 589 into a 57 page collection of the most restrictive voter suppression regulations since the Jim Crow era. All of this while at the same loosening campaign finance restrictions on politicians. Apparently the Republican Supermajority felt that the voters of North Carolina needed to be regulated, but for politicians to be kept under the government thumb was just too much.
Efforts like that are among “a startling return of efforts in some states to suppress the franchise,” Meltzner writes. “A vital Section 2 would stop them. The upcoming case before the three-judge court will ultimately decide if the words of the Constitution will be given life or rendered obsolete.”
Don’t hold your breath for originalists on the Roberts Court to grasp that the 14th Amendment’s Section 2 means what it says.
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