The 14th Amendment Says State's that Infringe the Vote Must Lose Representation in Congress

This post is from an Article by Joshua Geltzer, Politico Magazine, Law and Order Section.

The Forgotten Words form Section 2 of the 14th Amendment, which was Designed to guard against the Infringement of Voting Rights. The seemingly Lost Provision is Simple: States that Deny their Citizens the Right to Vote will have a Reduction of Representation Equal to the Lost Votes in the House of Representatives.

Throughout U.S. History, Legal Ambiguities and Confusion over Implementation Authorities have kept this Provision from Realizing its Potential. But there are ways to put it to Work Right Now. And there’s no better time.

From Widespread Closure of Polling Locations, Expanding Imposition of Voter Identification Laws, to Escalating Purges of Voter Rolls with many States Violating the Voting Rights Act, and Assaults on the Right-to-Vote Nationwide, illustrates that we need these Lost Words Back, Urgently.

The Reduction Clause has some Problems for Today. First, the Reduction Clause’s insistence on Voters being “Male Inhabitants” perpetuated the Constitution’s Original Denial of the Vote to Women, an Inequity partially Corrected by the 19th Amendment and more Fully addressed by the Voting Rights Act of 1965. Second, the Clause’s focus on Voters “twenty-one years of age” and Older became out of step after Passage of the 26th Amendment, which lowered the Voting Age to 18. And, third, the Clause’s Entrenchment of Felon Disenfranchisement looks increasingly Anachronistic today, especially in Light of Florida’s Landmark Restoration of Voting Rights to Felons by Referendum in 2018, with many States look to follow.

It’s Natural at this point to wonder Why the we haven’t heard of many Lawsuits seeking to Enforce the Reduction Clause, given its Potential. A Key Reason is that the Clause doesn’t make Clear how it is to be Enforced and Critically, by Whom. This Ambiguity has left Congress, the Executive Branch, and the Courts All uncertain about what Role they can and should Play in Enforcing the Clause, and thus generally Backing Away from trying to do so.

Overall, it appears the Reduction Clause’s Framers expected Congress, rather than the Judiciary, to be the Primary Enforcer of the Rule. And that includes Determining when Voting Infringement has Occurred, responding by Depriving Disenfranchising States of the Level of Representation in Congress, and, finally, Figuring Out when that Representation should be Restored.

The Silence from Congress has led some to look to the Courts to invoke the Reduction Clause.

Victor Sharrow was a Criminal Defendant Accused of Refusing to provide Answers to the 1960 Census. He looked to the Reduction Clause as a Defense, Arguing the Census Act under which he’d been Charged was Unconstitutional because it Failed to Include a Question about Voting Abridgments or Denials to Fulfill the Terms of the Reduction Clause. Without this Question on the Census, his Argument went, there was No Way to know if States should have their Congressional Representation Reduced and by How many.

Sharrow Lost in the Trial, and he Lost again in the 2nd U.S. Circuit Court of Appeals, which Upheld his Conviction. The Court concluded that, whatever the Reduction Clause Meant, it didn’t Require Congress to Seek, as part of the Constitutionally Mandated Decennial Census, “information relative to disenfranchisement.” What the Clause might, in fact, Demand of Congress was a Question Left for another Day.

Almost 20 years before Sharrow invoked the Clause in a Failed Attempt to stave off Criminal Prosecution, a Virginia Citizen named Henry Saunders Sued Virginia’s Secretary of State, Ralph Wilkins. Saunders wanted to Run for the U.S. House of Representatives as an At-Large Candidate, and Wilkins Refused to Certify his Candidacy on the Grounds that Virginia didn’t have an At-Large Position in its Congressional Delegation. So Saunders Sued Wilkins, arguing that, because Virginia had Infringed its Citizens’ Right to Vote, the Reduction Clause required that Virginia’s Nine Representatives be Reduced to No More than Four who, in turn, would have to be Elected as At-Large Candidates. Both the Trial Court and the 4th U.S. Circuit Court of Appeals Rejected Saunders’ Challenge, with the latter deeming his Grievance a Political Question unsuited for Resolution in the Courts.

In 1966, a different pair of Federal Courts provided a rather more Nuanced take on the Possibility of going to Court to Enforce the Reduction Clause. That year, the Court of Appeals for the D.C. Circuit Agreed with a Lower Court’s Dismissal of a Challenge brought by Voters seeking a Court Order requiring the Census Bureau to Count Abridgments of the Right to Vote so as to Enforce the Reduction Clause. The Court ducked the Question, indicating that the newly Enacted Voting Rights Act should be given time to Serve its Intended Function and perhaps render Unnecessary this type of Lawsuit. But, intriguingly, the Court also threw a Bone to the Challengers, noting that, “in telling appellants that events have made their complaint unsuitable for judicial disposition at this time, we think it also premature to conclude that Section 2 of the Fourteenth Amendment does not mean what it appears to say.”

Perhaps encouraged by that Language, Victor Sharrow again tried to Raise the Reduction Clause to fend off Criminal Prosecution, this time, he initiated the Litigation, Suing the Census Bureau’s Director for Failing to Count the Number of Voters Disenfranchised in States other than New York, on the Theory that such a Count would Decrease the Disenfranchising States’ Representation in Congress and increase New York’s, thus Boosting his Political Influence as a New York Voter. In 1971, the 2nd Circuit handed him another Defeat, holding that he Failed to Show the particularized Harm to his Own Voting Rights to Allow him to Pursue his Claim in Court.

At the same time, the Judges who dispensed Sharrow’s 1971 Challenge identified a Difficult Question even if they Ducked in Providing an Answer: Even if the Census Bureau Collected the Disenfranchisement Data what, precisely, would happen Next?

The judges were right that figuring out how to realize the lost promise of the reduction clause, especially through litigation, implicates a host of complicated, interrelated questions. To begin with, what exactly qualifies as a disenfranchisement for these purposes, anyway—for example, does a voter ID law count? And how much disenfranchisement would have to be found—that is, how many voting-eligible citizens would such a voter ID law need to affect? Measured how, exactly?

Then who would Strip the Disenfranchising States of the Right Number of Representatives: Congress or a Federal Court? Would the States immediately need to Redistrict to Reflect their Reduced Number of Representatives and Vote for that Number of House Members in Newly Formed Districts? Or would Representatives in those States All become, at least Temporarily, At-Large Members, as Saunders argued in his Lawsuit?

What would happen to the “slots” in the House of Representatives now taken from the Disenfranchising States: Would they be Allocated to Other States so that the Total Number of House Members would Remain at 435, as most Scholars Agree would be Required? If so, which Ones—by giving, or Loaning?, them to the States already Closest, in Population Terms, to having Additional House Members anyway or through some other Method, such as Reallocating them to the States performing Best in ensuring Voting Rights?

How Long would this Punishment Last? The Clause’s Text gives No sense of How a Disenfranchising State can make Amends and Earn Back its Lost Representation. Does a Disenfranchising State Automatically get Back, at the Next Set of Federal Elections, the Full Slate of House Members it would otherwise have? Or must Data Collected from that State show that Disenfranchisement has now Ceased? And Who makes that Call: Congress, or a Federal Court?

Utilizing the Reduction Clause demands Data that Congress has a Hard Time obtaining on its own. But Congress can Require the Executive Branch to go out and get that Data. And that’s the most immediate way to Revitalize this Lost Provision of the Constitution.

Congress could Require by Federal Law that the Census Bureau Survey Americans regarding Voting Infringement. But Self-Reporting surely would Demand Follow-Up Investigation rather than Serving, on its own, as the Basis for Calculating the Proportion of a State’s Citizens, now to Include All of its Voting-Eligible Citizens, whose Right to Vote has been Infringed. It would be a Start, and an Important One. And it’s probably what the Clause’s Framers anticipated, given that, at the time, the Decennial Census asked about a Wider Range of Information than it does Today, likely leading the Clause’s Framers to View it as Natural for Questions about Voting Infringement to be added.

The Census Bureau pursues this Work Not through the Decennial Census but through the American Communities Survey (ACS) that the Bureau conducts on an Ongoing Basis. The Decennial Census has a Single Goal Assigned to it by the Constitution: to Achieve an “actual Enumeration” of All of those Present in the U.S.

But the ACS Serves Broader Goals by gathering Information from 3.5 Million Households each year on an Ongoing Basis. And asking about Voting Infringement seems like an eminently sensible Addition to the ACS. How, exactly, the ACS should Ask about Voter Infringement in a way that Elicits the most Useful Answers for further Study is the Type of Challenge the Census Bureau Tackles all of the time; and the Bureau’s Experts would be well placed to Engage in Extensive Testing and Sampling to Refine what Series of Questions, Phrased in particular ways, would Yield the Information most helpful for Reduction Clause Enforcement, including Data on known Forms of Voter Discrimination as well as the Identification of New Forms.

Even as we wait for Congress to act, the Reduction Clause needn’t remain Totally Fallow. Section 2 of the Voting Rights Act of 1965 is a Central Provision of Landmark Anti-Discrimination Legislation. It Prohibits Discriminatory Voting Practices or Procedures. And, when a Legal Challenge to Section 2 went all the way to the Supreme Court in 1980, the Court Upheld it on the Grounds that Congress had Authority to Enact it under the 15th Amendment, the Reconstruction Amendment focused on Protecting Voting Rights.

But the Supreme Court just Refused to Handle Future Redistricting Violation Cases and made it a State Court Issue.

Over 50 years ago, Attorney Eugene Sidney Bayer called the Reduction Clause “a neglected weapon for defense of the voting rights of southern negroes.” So it remains today.

It’s time to Resurrect these 110 words of the Most Important Amendment to the World’s most Important Constitution. The Authors of those Words looked to Congress to Ensure that the most Fundamental Aspect of American Democracy, the Right to vote, would be Upheld.










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