The Forgotten Constitutional Weapon Against Voter Restrictions

[elleng]

A former Justice Department lawyer thinks he’s found a way to penalize states that undermine voting rights.

It’s been a hard few years for people worried about voting rights in America. Republican-controlled states are imposing a raft of new restrictions. A divided Congress has failed to pass any legislation in response. And the Supreme Court just agreed to hear a case that could give state legislatures unchecked power over election rules.

But perhaps a largely forgotten provision of the Constitution offers a solution to safeguard American democracy. Created amid some of the country’s most violent clashes over voting rights, Section 2 of the 14th Amendment provides a harsh penalty for any state where the right to vote is denied “or in any way abridged.”

A state that crosses the line would lose a percentage of its seats in the House of Representatives in proportion to how many voters it disenfranchises. If a state abridges voting rights for, say, 10 percent of its eligible voters, that state would lose 10 percent of its representatives — and with fewer House seats, it would get fewer votes in the Electoral College, too.

Under the so-called penalty clause, it doesn’t matter how a state abridges the right to vote, or even why. The framers of the constitutional amendment worried that they would not be able to predict all the creative ways that states would find to disenfranchise Black voters. They designed the clause so that they wouldn’t have to. “No matter what may be the ground of exclusion,” Sen. Jacob Howard, a Republican from Michigan, explained in 1866, “whether a want of education, a want of property, a want of color, or a want of anything else, it is sufficient that the person is excluded from the category of voters, and the State loses representation in proportion.”

That approach could come in handy for discouraging states from imposing more limits on voting, as the country witnesses what Adam Lioz, senior policy counsel at the NAACP Legal Defense Fund, calls “the greatest assault on voting rights since Jim Crow.”

There’s just one problem: The penalty clause isn’t being enforced — and never has been. . .

Analysis by a data scientist cited in the lawsuit found that seven states — Arizona, Maryland, Mississippi, New Jersey, Ohio, Tennessee and Virginia — would gain at least one seat each if the Census Bureau fully applied the penalty. . .

Still, simply because the provision may be difficult to interpret doesn’t mean it can easily be ignored. It’s still a piece of the Constitution, even if it’s been gathering dust. Meanwhile, voting rights for millions of Americans — particularly people of color — are increasingly imperiled.

It will be months, perhaps years, before Pettinato’s lawsuit is finally resolved. But for all the hurdles facing him, he remains enthusiastic.

“I just feel very lucky to be able to bring this case,” Pettinato says, “and to try to revive a part of the Constitution that’s laid dormant for 150 years.”'

https://www.politico.com/news/magazine/2022/07/27/penalty-clause-voting-rights-00046973?

[bucolic_frolic]

1. You enforce the Constitution through litigation in the courts and with the Court /nt

[brush]

2. Tell us which states would lose reps. instead of...

those seven which would gain seats. And how could Mississippi of all states, and Tennessee, another southern state, and Arizona, which may as well be one after all the voter shenanigans that have gone on there, gain seats instead of losing them?

[FBaggins]

3. No more legit than Trump having Pence declare him the winner

This isn’t going anywhere

[G2theD]

8. Not legit? It's in the Constitution!

[FBaggins]

9. No it isn't

They’re talking about not letting the former slaves vote at all. They aren’t talking about limiting the number of early voting days (there were none at all at the time) or drop boxes (ditto) or gerrymandering (which existed well before the amendment. )

What happens when the Republican version of this nonsense pops up again and they interpret the constitution’s requirement that each state have a “republican form of government”?? You’ll just accept that “it’s in the constitution!”?

[G2theD]

10. Really?

Section 2 of the 14th Amendment provides a harsh penalty for any state where the right to vote is denied “or in any way abridged.”

[FBaggins]

13. Yes, really

It simply can't be argued that someone who retains the right to vote (indeed, likely does vote) has had that right "abridged" by not being able to get water while waiting in line or having one fewer weekend available for early voting.

[G2theD]

15. No, that's not a good example

But many other things the republicans are doing would qualify, I would think.

[FBaggins]

17. "I would think" is the key

There is no such legal standard.

Democrats want as many people to vote as possible and therefore want it to be as easy to do as possible. But that isn’t legally at all the same thing as saying “anything other than our preferred policies are tantamount to disenfranchisement” when nobody actually loses the right to vote

[G2theD]

19. You are quite wrong and I'll leave it at that.

[G2theD]

11. But it doesn't say that, does it?

[FBaggins]

12. Sure it does

Article IV Section II

"The United States shall guarantee to every State in this Union a Republican Form of Government"

All that is needed is for some Republican to creatively define that have a Democratic state legislature or Governor is not a Republican form of government.

[G2theD]

14. But they already have a republican form of government

So I don’t think that would fly. Unless it went to the current SCOTUS, then all bets are off.

[FBaggins]

16. Duh.

They also have an unabridged right to vote.

I didn’t say that it made sense… just that it made as much sense as this nonsense

[G2theD]

18. Duh yourself.

[Joinfortmill]

4. Fascinating. Thanks for sharing.

[housecat]

5. It's worth trying. At least people will know it exists

[mjvpi]

6. Let's see how the "originalist" judges vote on this one.

Thank you for posting this. It sounds like our current situation is exactly why this was put into the constitution.

[elleng]

7. and never yet addressed!

Should be 'fun!'

[FBaggins]

20. I read the lawsuit. It isn't at all what this reporting implies

Their primary claim re "if the Census Bureau filly applied the penalty" is tied to state voter registration requirements. Not so much recent republican efforts to change laws.

Essentially that only allowing registered voters to vote (which every state does) denies/abridges the right to vote.

https://www.constitutionalintegrity.org/_files/ugd/867a00_1f0812e6013147c88fd08ec9089bf5cd.pdf

The lawsuit isn't going anywhere.

[scipan]

21. No that's not what it says

It says that any laws beyond what is enumerated in the 14th Amendment that restrict the right to vote, like CA's law denying voter registration to people who have been declared insane, etc. would count.

In addition, state laws denying the ability to vote, like WI's voter ID law (which you have to show when you try to vote), some 300k people, would also count.

From your link.