A recent New Republic piece about an obscure section of the 14th Amendment suggests an intriguing possibility for punishing (Republican-run) states that try to make it harder for some citizens, especially non-whites, to vote.
The post-Civil War 14th, which the defeated Confederate states mostly refused to ratify until Congress in 1867 made it a condition of rejoining the Union from which they had seceded, is the powerful amendment containing several, provisions that the Southern states found it hard, but ultimately necessary, to swallow.
The 14th included the “due process” and “equal protection” clauses that were so powerful that the amendment has sometimes been said to be a “new constitution” as U.S. democracy headed into its second century.
The relatively obscure but currently newsworthy provision to which I alluded above reads thus:
“[W]hen the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
The immediate purpose at the time seems fairly clear. As they rejoined the Union and elected members of Congress and their legislatures and other key positions, and participated in presidential elections, the Southern states had to allow the freed slaves to vote. If they abridged that right, the number of U.S. House seats to which they were entitled would be reduced proportionately.
(This provision was, in some way, the end of the despicable three-fifths compromise of the original Constitution, which allowed Southern states to get credit toward their number of seats in the U.S. House for their slaves on the ridiculous basis of counting a slave as three-fifths of a person. The new deal was going to be: Let the freed slaves (at least the males, since females hadn’t yet been granted the right to vote) vote, or the state would lose a large portion of their seats in Congress.)
All but one (Tennessee) of the former Confederate states refused to ratify the amendment until it became clear that they would continue to be governed by pro-Union military governments until they ratified the 14th, which they ultimately did.
The language of the 14th Amendment, of course, remains in the Constitution and the New Republic piece suggests a way to use that language in the context of the latest efforts by Republicans to construct clever ways to make it harder for black and brown citizens (and others suspected of wanting to vote for Democrats) to vote.
That constitutional language doesn’t refer to race per se. It says that if a state takes measures that “in any way abridges” the right of some of its citizens to vote, the state can and should be penalized by losing representation in Congress in proportion to the number of its citizens whose right to vote has been “abridged.”
I have no idea how seriously to take this, but it’s intriguing to contemplate, and enforcing this law would seem to be utterly in keeping with the desire to guarantee voting rights. And it seems especially interesting at a time when many states seem to be toying with ideas for abridging the likelihood of Democrats — certainly including black and brown voters although the language of the 14th Amendment doesn’t require it to be limited to those of color – from voting or having their votes counted.
I doubt this will happen. But it’s an intriguing idea at a time when all kinds of schemes for making it harder to vote are in the air, all of them coming from Republicans and many with elements of race built into them.
I’ll stop here and just offer this link to the full New Republic piece.