Section 3 of the 14th Amendment isn’t the only one forgotten
Move over Section 3. Michael Meltzner reminds readers of The American Prospect that America should not treat Section 2 of the 14th Amendment as a dead letter either. There is another lawsuit pending based on it:
About a year ago, I reported in the Prospect on a pending lawsuit filed on behalf of a citizens group by former Department of Justice lawyer Jared Pettinato. The suit asks that the Census Bureau be required to enforce Section 2 of the 14th Amendment, enacted in 1868 to strip congressional representation from states that disfranchise voters. The text applies to general methods states adopt that keep people from voting and is not limited to racial discrimination. The proportional loss of congressional representation would also reduce the votes that states would get in the Electoral College.
The Section 2 case is now moving toward resolution. Briefs have been filed, and oral argument is expected shortly before the court of appeals in Washington, D.C
It’s another one of those constitutional sections that seems to have been ratified and quickly forgotten. As someone who lives in one of the most heavily gerrymandered states in the nation and where voting law fuckery is a growth industry….
On a structural level, enforcing Section 2 for the first time would conceivably sanction and thus potentially eliminate the web of restrictions and hurdles that keep substantial numbers of citizens from casting a vote. Some states would lose representatives, and electoral votes, to states that make it easier to vote. In contrast, the Section 3 insurrection issue is individualized, dealing only with a former president whose misdeeds are unique in American history.
What the pending Section 2 case is about:
Wisconsin’s 2011 voter ID law prevented 300,000 registered voters who lacked identification from casting a ballot, according to U.S. District Court Judge Lynn Adelman. This finding was accepted as true on appeal, and should be accepted as true at this stage of the Section 2 litigation. As 300,000 registered voters is approximately 9 percent of Wisconsin’s total registrants, the complaint reasons that Wisconsin should lose 9 percent of its representatives, equal to one member of Congress and one electoral vote. Another state would gain that representative.
Yet, we know how these things tend to play out. Little guys who mistakenly violate election law or get stopped for driving while Black face the law’s full weight (and/or extrajudicial execution). The elite walk. Righting that problem is what the Section 3 lawsuits and prosecuting Donald Trump’s 91 felony indictments is about. Or is all our boasting about the rule of law no more than that?
Lucky us, the Roberts Supreme Court will likely decide whether their chosen profession is obsolete too.
It’s amazing that, given the central role courts construing constitutional texts play in our public life, the terms of operationalizing the 135 words of Section 2 have never been settled in over 150 years. The few lawsuits brought under its terms have almost all found ways to avoid enforcement. Only one case, which I filed in the 1960s when I was first assistant counsel at the NAACP Legal Defense Fund, had a different and unusual outcome. In that case brought by a group led by feminist and civil rights leader Daisy Lampkin, the judges unanimously took remedying disfranchisement by enforcing Section 2 seriously, but stayed their hand because they supposed the Voting Rights Act of 1965 might make enforcing it unnecessary.
Regardless of the outcome in the court of appeals, the Supreme Court will be asked to decide whether the Constitution’s explicit remedy for disfranchisement has life or should be ignored. The Court has many tools that can be used to continue the tradition of nonenforcement. Standing to sue doctrine allows avoiding decisions on the merits; but with respect to Section 2, continued use of it in case after case amounts to saying that what the Constitution says doesn’t matter. For a judiciary that roams across the scope of American life in its decisions, such an outcome can only be seen as random, and thus really political, decision-making. And deciding the Section 3 case to allow Trump back onto the ballot while avoiding a decision in the Section 2 case would have clear political overtones.
And social ones. That is, your JDs are BS.