Ben Gray/AP Photo
People gather during a get-out-the-vote rally on November 27, 2022, in Atlanta, during early voting for the Senate runoff election.
We swear oaths on the Constitution. We are taught every word; indeed, every comma counts.
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.
Why is this case, styled Citizens for Constitutional Integrity v. Census Bureau, so important? Because a victory for the plaintiffs would, by overcoming 155 years of indifference, lead to a major shift in the composition of the House of Representatives.
With one exception, efforts to end disenfranchisement by applying Section 2 have yielded little except frustration.
The irony behind the indifference is extreme. When we think of the 14th Amendment, the focus is almost always on the ambiguous due process and equal protection clauses asserted daily in the courts. But in 1868, the members of the then-dominant Republican Party were far more concerned that the 13th Amendment, by abolishing slavery, had excised the infamous three-fifths clause of the original document. If no further action was taken, former slaves who were still blocked from voting by state policies and multiple forms of intimidation, would nevertheless be counted in the population of the rebel states, threatening to increase their representation in Congress.
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 few challenges to Section 2 inaction were dismissed without any serious effort to confront the ultimate issue of implementation. Courts said the parties who brought the suits failed to show they were specifically harmed, or ruled the matter was for Congress alone to tackle. That was the original finding in the case my boss at the NAACP Legal Defense Fund (LDF) Jack Greenberg and I brought in the mid-1960s on behalf of Blacks in flagrantly discriminatory states like Mississippi, and for citizens of states that would under the amendment have their voting power enhanced if denial of the vote persisted.
The trial judge ruled against us, holding that the gains sought were truly speculative and, therefore, not for a court to entertain. But we appealed to the circuit court, and the 1965 unanimous decision written by Judge Carl McGowan should give heart to those seeking relief today. Surprisingly, McGowan took a completely different tack than the lower court, failing to adopt any of the grounds for avoidance usually raised to defeat Section 2 claims. Instead, he pointed to the potential of the recently adopted Voting Rights Act of 1965 to end disenfranchisement. He would wait to see if the new law ended the obvious discrimination we alleged. There would be no court order “at this time,” but he added that he “think[s] it is also premature to conclude that Section 2 … does not mean what it appears to say.”
At LDF, we decided to accept this resolution and were proved right. Until Section 5 of the Voting Rights Act was gutted by the Roberts Court in 2013, it did much of the job that led us to bring the case. Black registration and voting numbers climbed dramatically, as did the number of minority legislators and government officials. But though the means are subtler today, there has been a startling return of efforts in some states to suppress the franchise. 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.
