As Long As I’m Revisiting The Constitution

A couple of days ago, I suggested investing the Electoral College with some of that “original intent” conservative jurists love to apply to our anything -but-original problems. Today, I’m revisiting–or to be more accurate, actually visiting for the first time–another part of the Constitution.

I’m going to file this under “you learn something new every day.” Or perhaps under “Well, this is certainly interesting.” (Or even more likely, “I must be missing something!”)

I don’t know why I haven’t ever focused on the language of Section 2 of the incredibly important Fourteenth Amendment. That section reads:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when 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. (emphasis supplied)

Later Constitutional amendments extending the franchise would obviously mandate a somewhat different and more expansive reading of Section 2, but the language certainly would seem to provide a possible remedy to the rampant vote suppression being documented in several states.

This is not a subject I have previously researched, so I’d be grateful to any election lawyers–or other knowledgable folks– out there reading this who might answer the following questions:

  • Has there ever been litigation on the basis of this Section?( If so, please cite; if not, I assume the difficulty in establishing evidence of the percentage of votes suppressed would account for the lack.)
  • Who would have standing to bring a lawsuit? (It would seem to me that anyone improperly prevented from voting in a state would have standing, but the Court has narrowed standing doctrine in several ways–unfortunate ways, in my opinion–so perhaps not.)
  • What would count as probative evidence of the percentage of legitimate votes suppressed, the efficacy and intentional nature of suppression tactics, and how would a plaintiff acquire and verify such evidence? (Would the evidence compiled in Stacy Abrams’ new lawsuit suffice?)

If the evidentiary problems could be surmounted, wouldn’t this section provide a fitting remedy for the games currently being played by the GOP?

Wouldn’t it be wonderful if, for example, Georgia lost a couple of Congressional seats as a result of Brian Kemp’s egregious voter suppression tactics?

If lawsuits based on Section 2 are tenable, I would think simply bringing those suits–even if they were ultimately unsuccessful–would have a salutary effect. Perhaps the threat of losing representation would make some of those Republicans who are enthusiastically engaging in anti-democratic efforts to keep “some people” from voting (yes, Mississippi, we’re looking at you) might have second thoughts…..

I’m obviously missing something, but I’m not sure what. That said, I’m sure one of my more erudite readers can supply the answer.


  1. My best guess off the top of my head is that the (Republican?) governor would have to have the (Republican?) Statehouse redraw Congressional districts down to the appropriate number indicated, and would certainly ensure that it is Democratic seats lost, not Republican. I can’t think it would be as easy as simply sending home a couple of Congressmen (thus, leaving their districts completely without representation), and even if it were that easy, who would select them?

  2. Well, starting from today and working backward, didn’t the Koch owned Scalia lead the charge to overturn the Voting Rights Act of 1965?

    The 14th Amendment didn’t prevent the Jim Crow tests from implemented on blacks and using English only ballots to discriminate against Mexican immigrants.

    We had a major problem in this country for generations which initiated the VRA of 1965. I know even after the VRA was signed into law, there were amendments required to prevent continued discrimination.

    It seemed to work until Scalia’s brilliant argument which basically consisted of, “There are no signs of voter discrimination in the USA.”

    I also remember that one day after this heinous decision was rendered, there were numerous states throughout the South who implemented restrictions. It would be interesting to know if GA, TX, NC, and FL were among them. 😉

    The Koch’s have been orchestrating an attack against our democracy for a very long time. It’s coordinated and the “media” doesn’t expose their dark network because of the millions spent on elections annually keep the “media” in business.

    The most hideous example is allowing monies to flow in from outside a politicians district. That defies the obvious definition of a representative democracy. How can our so-called judicial branch even justify this obvious infringement of money influencing elections?

    It’s why our country has become a joke internationally. When Vladimir Putin mocks your democracy, and you can’t muster an argument against his statement of fact, then you know we have gone well beyond ‘losing our democracy’.

  3. Thank God, I’m not an idiot! By the time I reached the end of Section 2 of the Fourteenth Amendment, every time I read it, I was more confused than when I began. If those educated in the law (which is the basis of the Constitution), were confused by it, I will stop trying to understand it until and unless someone can explain it. Can someone also explain the LACK of required qualifications to be elected President of the United States in Article II, Section 1, clause 5?

    I have also never understood why Republicans stress concern over highly populated states having more Representation than those with lower population…isn’t population how the number of Representatives are decided? I have also never understood why there are 2 Senators representing each of the 50 United States; consider the population of California and Texas vs. the population of Rhode Island.

    Like Sheila; I’m obviously missing something(S), but I’m not sure what…or why. Such as why the Electoral College and the Popular Election when the Popular Election appears to be baseless?

  4. Well, I learned something too this morning…….that there are three more sections to the Fourteenth Amendment besides the first one!

  5. I think Stacy Abrams’s lawsuit just might be the most important case decided by the courts in the next decade. Remember Shelby didn’t eliminate the VRA. It eliminated the pre-certification of changes to election laws in certain states. Seems like the last two years are evidence that perhaps that clause should have been expanded to cover all fifty states. I’m particularly interested in how Justice Roberts rules in that case. Does he feel obliged to take up the Kennedy position as the swing vote?

  6. I am a lawyer but do not possess the degree of erudition Sheila has asked for in implementing this little known and rather punitive section of the 14th Amendment, and looking at the “original intent” of our forefathers in this case would not help since voting by their standards seems clearly limited to men and age as though women and males under age 21 are not citizens entitled to vote. This section seems to have been since put to rest since women and men under the age of 21 now vote, of course, which may explain why there is so little discussion of its terms. I don’t know, and do not have the research facilities at hand to find out.
    We can hope that the court’s findings in the Abrams’ case will be helpful since I know of no case law dealing with this little discussed section of the Constitution and would need an hour or so in a law library to check such an omission out, if any, because the law library and not the courtroom is where cases are won or lost, contrary to Perry Mason and other such dramas. Sheila, I recommend that in your copious spare time, either run over to the library or have some senior student run over and do some shepardizing on this topic so that we the uniformed can be informed of this section’s
    history and its current status where cited. Meanwhile, color me DUH. . . .

  7. I think that we’re seeing a problem that the framers anticipated and provided a remedy. The solution would be determined after bringing the case and letting the court opine on what sort of evidence would suffice. I’d say send the Q to Abrams lawyers and see if they’ll add it to their case

  8. In 2018 there were 110,983 thousand congressional votes cast. Dems got 54% of the vote and Repubs got 46%. In an entirely proportional system, the Dems would get 235 seats and the Repubs 200. How many did they get? You guessed it! Climate Change, anyone?

  9. seems the recent mob in washington would rather leave us guessing.since they have done considerable harm to the working class,and spent our future tax money,as a gift to those that try and screw us, january do we get to close a door,? or atleast,start damage control? weve seen what the so called conservitives can dish out,when they are left to play god. we can ask wether we can take action,or, we can sweep some trash out of the way,use it like a confederate statue,and a rememberrence of what a bunch of people with no regard for our laws, constitution and ethics. to pounce at this moment removes the time needed to take stock,and plan. if the present wall street demos,decide again to play money,again, we need to wipe that street clean too. its imperitive,if were to gain access to free and and accessable voting again, we need a bunch of voices to say it again NO MORE GAMES..were all in a spin cycle of words and actions. we need some direction again,and its got to be someone who calls the meaning of our nation,and as a whole.
    the working class needs to get off thier ass and again, gain some reconition and voice,as a whole. we need to again organize as a working class,we dont have to be union,we have to be one,and,expect,the rule of law be again,working for all..we need to take action on those who feel they are above the law… and those who gave our hard earned tax money to wall streets mob,they need to be sent home,to enjoy thier new found profits they made,giving it all away. what we really need to achive.. wages,wages,wages..and someone forgot how we support main street,not wall street..after all ,we could afford health care if wall street wasnt so damn greedy…..

  10. It is just silly to argue “original intent” when it comes to any amendments and wording to the Constitution. The reason Koch/Scalia proposed such a concept is because they saw the Constitution as a living changing instrument moving in what they considered the “wrong direction.” The idea that there was some kind of “known or perceived original intent” of the underlying assumptions of the myriad of compromises which went into the original document comes only from that end of Scalia’s anatomy where the sun does not or ever did shine. Such arguments, no matter how brilliant the right claims them to be, should be returned to that darkness – at least metaphorically. Serious scholars should just laugh when such arguments are proposed.

  11. Excellent observation! You have found the key. This cure can be applied by House in allotment of Representatives to the states post 2020 census. Even without federal protections in a Voting Rights Act Congressional like the Replicant Congresses let lapse saying it was no longer needed. Now, how much do you wish to wager that even the most overwhelmingly Democrat House, would hold hearings and invoke this penalty? It would cure Electoral College to only some extent. Potentially harm the very deprived voters that it is desired to help if their rights were restored before the 2030 census and Representatives. I apologize . It is difficult for me to be Progressive and pragmatic too. The fact is: The only way to solve these many issues is a Constitutional Convention. But only if it can be conducted in complete secret producing a completely new document. And, most importantly, by persons of high purpose , character and intelligence. In 21st century America……good luck.

  12. So many of the claims of “voter suppression” are utter nonsense. It is easier to vote than it has ever been. The numbers simply don’t back up a claim that there is widespread voter suppression going on. If you compare turnout v. voting age population, you’ll find turnout has not gone down one bit in response to such things as a photo ID requirement for voting.

    Democrats scream “voter suppression.” Republicans scream “vote fraud.” 90% of the claims by both sides are completely bogus. There is some voter suppression, some vote fraud…but the actual occurrences of either are extremely rare.

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