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.
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