The Worrisome Ghost of the Fourteenth Amendment’s Second Section

The Fourteenth Amendment’s first section contains some of the most widely known constitutional guarantees. It is home to the Equal Protection Clause, the Privileges or Immunities Clause, and the Due Process Clause. And it has been interpreted to secure a variety of individual liberties, from marriage rights to voting rights.

Despite the prevalence of Section One of the Fourteenth Amendment in modern political and legal discourse, few seem to know what’s in the section that immediately follows. Section Two provides:

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. 

In short, under Section Two of the Fourteenth Amendment, if a state denies men the right to vote, then that state can lose representation in Congress.

The Section had long been dead. But there are two camps of legal scholars who wish to revive it. The first consists of those who would like to see Section Two enforced to punish states that abridge their citizens’ right to vote, especially in the wake of Shelby County v. Holder. Recently, Joshua Geltzer, the executive director at Georgetown’s Institute for Constitutional Advocacy and Protection and the former senior director for counterterrorism at the National Security Council, added himself to this camp. The second camp is using Section Two, which distinguishes on the basis of gender, as evidence that Section One’s Equal Protection Clause does not prohibit gender-based discrimination. Jonathan Mitchell spearheads this movement.

In light of these arguments, it is important to consider why Section Two was included in the Fourteenth Amendment, and what problems it might create if revived.

When the Civil War was over, the pressing question was when and how to readmit the Southern states. Article I of the Constitution directed representation in Congress to be apportioned among the states according to their population, “including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” And slaves, of course, were the “other Persons.” So after slavery was abolished, Northerners were concerned about the effects of newly freed slaves being considered “persons” for Article I purposes.

This posed a huge political problem for the North. The freed slaves would be counted in full for purposes of representation even if readmitted Southern states denied them the right to vote. This would give the slave states more power than ever in Congress, while black voters would have no say over who their representatives were. The Northerners worried that with this power, Southern representatives could restore slavery, at least in effect.

The North intended the Fourteenth Amendment to be its solution. Section One granted citizenship to the newly free slaves (though never explicitly referencing race), and Section Two provided a penalty for states that disenfranchised their male citizens. Section Two was intended to discourage Southern states, some of which had a population that was half black, from denying their black citizens the right to vote.

However, some abolitionists thought differently, viewing Section Two as an implied endorsement of a state’s ability to disenfranchise voters, even if that ability came with consequences. Speaking about the Amendment, Frederick Douglass declared: “For to tell me that I am an equal American citizen, and, in the same breath, tell me that my right to vote may be constitutionally taken from me by some other equal citizen or citizens, is to tell me that my citizenship is but an empty name.” Less than a year later, Congress passed the Fifteenth Amendment, expressly prohibiting states from denying the right of US citizens to vote “on account of race, color, or previous condition of servitude.”

States still found ways to prevent black Americans from voting. Poll taxes, literacy tests, fraud and intimidation were just some of the techniques states used. Many of these tactics persisted until the 1965 Voting Rights Act, which prohibited states from using literacy tests and other methods to disenfranchise voters. Yet, Section Two’s mechanism for punishing states has never been invoked.

As previously noted, there is a movement to use Section Two to punish states that disenfranchise minority voters. The movement caught on after Shelby County, when the Supreme Court declared unconstitutional a section of the Voting Rights Act that required jurisdictions with a history of discrimination to submit to the federal government proposed changes in voting procedures to ensure the changes would not disenfranchise minority voters. Those hoping to revive Section Two in this context see the constitutional provision as a means to check states that reinstate harmful voting restrictions in a post-Shelby County world. But it is unclear how Section Two would actually work.

There was one failed attempt to enforce Section Two through the judiciary in Saunders v. Wilkins (4th Cir. 1945). Henry L. Saunders tried to file paperwork to become a candidate for Congress for the state of Virginia. The State Secretary of the Electoral Board refused to certify his candidacy, explaining that the position of Representative at Large did not exist because Virginia “had divided its territory into nine districts in conformity with the number of representatives allotted [to it] by Congress.”

Saunders argued that Virginia had disenfranchised 60 percent of its voting-age residents through certain voting requirements, including a poll tax, such that Congress had an obligation under Section Two of the Fourteenth Amendment to reduce the number of Virginia representatives from nine to four. On that basis, Saunders argued that both the congressional Act allotting Virginia nine representatives and the Virginia Act dividing the State into nine districts should be invalidated. And, accordingly, he urged that Virginians must choose their congressional representatives “from the State at large,” as if Virginia had never been divided.

The Fourth Circuit decided that Section Two issue presented a non-justiciable political question. The court further added:

It is well known that the elective franchise has been limited or denied to citizens in various States of the union in past years, but no serious attempt has been made by Congress to enforce the mandate of the second section of the Fourteenth Amendment, and it is noteworthy that there are no instances in which the courts have attempted to revise the apportionment of Representatives by Congress.

The Fourth Circuit’s ruling was not a fluke. Even today, the Supreme Court’s political question framework likely forecloses any Section Two litigation that seeks to enforce the reduction of a state’s congressional representation. Voting rights advocates will be better off turning to Congress itself.

And there’s one more problem. Section Two is the only part of the Constitution that facially discriminates on the basis of sex:

But when the right to vote at any election . . . 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.

And nothing in the Nineteenth Amendment repealed that language:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation.

Sure, the Nineteenth Amendment empowers Congress to legislate when a state is denying or abridging citizens’ voting rights on the basis of sex. But when the denial or abridgement is on the basis of anything other than sex—like race (or even political ideology)—Section Two remains the only mechanism by which a state’s representation can be reduced.

So, let’s say a hypothetical state with 1,000,000 voting-age people (500,000 men and 500,000 women) abridges voting rights for 100,000 black Americans. If women constitute 60 percent of those black Americans, then the state is punished only for the 40,000 black men, which reduces the state’s representation by 8 percent. If the women were counted, however, the state’s representation would be reduced by 10 percent. This means that the state can disenfranchise as many women as it wants without Section Two consequences. Female disenfranchised voters are freebies. As long as it is on the basis of race—or something other than sex—the state will not have its congressional representation reduced. In a small state like the one described, that 2 percent change could be the difference between losing one seat or no seats in Congress. In a state like Pennsylvania that has 10 times the amount of citizens and one of the largest black communities, it could make an even bigger difference.

Of course, there is a chance of Congress ignoring the text and enforcing Section Two indiscriminately. But that is far from a foregone conclusion. Section Two is discriminatory in its nature.

One can easily understand why voting rights advocates would be attracted to a Section Two remedy. Voting rights remain politically contentious as the effects of Shelby County are felt. Over 1,000 polling sites have closed since Shelby County. And the U.S. Commission on Civil Rights reported that discriminatory voting laws have increased since the decision. With that backdrop, Section Two gleams as a powerful tool with the ability to disrupt the current political warfare. Reducing a disenfranchising state’s representation in Congress would be an extreme form of public condemnation. It is a mechanism that undoubtedly has the power to deter voter suppression—just as its authors intended.

However, as this article discussed, Section Two enforcement is unlikely. A court will find the question non-justiciable, so the decision to reduce representation would have to come from Congress itself. And even if it were to be enforced, it would be enforced in a discriminatory manner. Voting rights advocates therefore should stick to more traditional anti-discrimination tools. The most likely outcome of Section Two’s revival is that it will shed a spotlight on the contradiction between the Court’s Section One jurisprudence, which deems sex discrimination to be covered by the Equal Protection Clause, and Section Two, which blatantly discriminates on the basis of sex.