Lost 110 Words

The Lost 110 Words of Our Constitution

The 14th Amendment says states that infringe the vote must lose representation in Congress. It’s time to make this happen.

By JOSHUA GELTZER

The U.S. Constitution is famously short—a mere 7,591 words, including its 27 amendments. That makes it all the more remarkable that 110 of those words have been, in effect, lost to the ages.

These forgotten words form Section 2 of the 14th Amendment, which was designed to guard against the infringement of voting rights. The lost provision is simple: States that deny their citizens the right to vote will have reduced representation in the House of Representatives.

I bet you’ve never heard of that part of our founding document. That’s because, throughout U.S. history, legal ambiguities and confusion over implementation authorities have kept this provision from realizing its potential. But there are ways to put it to work right now. And there’s no better time. From widespread closure of polling locations and expanding imposition of voter identification laws to escalating purges of voter rolls, assaults on the right to vote nationwide illustrate that we need these lost words back, urgently.

The 14th Amendment is divided into five sections, all aimed at protecting civil rights in the wake of the Civil War and the abolition of slavery. Section 2 states:

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.

The first sentence will, at least in its principle, be familiar to many: It ensured that apportionment in the House of Representatives would fully count the recently emancipated black Americans, thus supplanting the provision in the original constitutional text that counted enslaved persons as three-fifths of a person. But most Americans—indeed, even most American lawyers and judges—have no familiarity with the second sentence of Section 2 that would penalize those states that abridge or deny the right to vote. It may well be the Constitution’s most important lost provision.

The Radical Republicans who crafted the 14th Amendment thought Section 2’s second sentence was quite important—critical, in fact, to ensuring the rest of the amendment’s guarantee of equality would become a reality, especially in the face of states sure to resist implementation of its guarantees. The Amendment’s framers worried, in particular, that recalcitrant states would respond to the formal expansion of the vote by devising new ways to abridge that vote. Section 2’s second sentence would be a powerful threat, saying that, should a state dare to try that, it would have to reduce its number of representatives in the House proportional to the vote infringement carried out by that state. Call it the Constitution’s “reduction clause,” punishing infringement of voting rights with the stiff penalty of a reduction in representation.

Let’s be clear: The reduction clause fell considerably short of what, today, we’d consider appropriate and just, or even what should have been deemed appropriate and just in 1868, when the 14th Amendment was ratified. First, the reduction clause’s insistence on voters being “male inhabitants” perpetuated the Constitution’s original denial of the vote to women, an inequity partially corrected by the 19th Amendment and more fully addressed by the Voting Rights Act of 1965. Second, the clause’s focus on voters “twenty-one years of age” and older became out of step afterpassage of the 26th Amendment, which lowered the voting age to 18. And, third, the clause’s entrenchment of felon disenfranchisement looks increasingly anachronistic today, especially in light of Florida’s landmark restoration of voting rights to felons by referendum in 2018.

All told, the reduction clause was far from a modern marvel. But it did add much-needed oomph to the dramatic, if incomplete, step forward that the 14th Amendment represented—or at least that’s what the clause was supposed to do. If the reduction clause were intended as a loaded gun to be wielded against those states that might infringe on voting rights, it’s never been fired—or even pointed in their direction in earnest. Somewhere along the way, these 110 words of our Constitution got lost.

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It’s natural at this point to wonder why the American people haven’t heard of lawsuits seeking to enforce the reduction clause, given its potential. A key reason is that the clause doesn’t make clear how it is to be enforced—including, critically, by whom. This ambiguity has left Congress, the executive branch and the courts all uncertain about what role they can and should play in enforcing the clause, and thus generally backing away from trying to do so.

Overall, it appears the reduction clause’s framers expected Congress, rather than the judiciary, to be the primary enforcer of the rule. And that includes determining when voting infringement has occurred, responding by depriving disenfranchising states of the level of representation in Congress, and, finally, figuring out when that representation should be restored. According to legal scholars Richard Re and Christopher Re, that responsibility is reflected in the original congressional discussions and debates over the clause and, ultimately, in the fact that apportioning House representation overall is a responsibility assigned to Congress, leaving Congress the natural entity to adjust that apportionment as needed. So, where has Congress been for the past century and a half, and how did it let this potent threat dwindle and effectively disappear?

Scholars like Michael Kent Curtis have told the story of the basic historical trajectory, which saw the massive discriminatory voter suppression that occurred in the post-Civil War South overwhelm whatever potential the clause held and thus contribute to its retreat—in other words, the problem became so vast, so fast that it wasn’t clear how to assess it and then respond with this novel, uncertain tool.

Boiled down, the biggest flaw in the reduction clause might have been this one: The clause failed to specify how Congress was to obtain the data that could serve as a first step in pursuing a punitive reduction in representation.

This proved a serious obstacle when, in the 1870s, Congress made its one serious push to impose the penalty of diminished representation. That push was a response to widespread post-Civil War disenfranchisement, ranging from states’ imposition of poll taxes to their failure to address outright violence to deter black voters. A select committee of the House of Representatives focused on administering the country’s ninth census made a list of state laws that the committee regarded as infringing on voting. Then the committee decided to ask census respondents nationwide whether their right to vote had been denied or abridged on constitutionally impermissible grounds. So, the committee reported out a bill that would have the secretary of the Interior—then responsible for administering the census—determine where and how much voting infringement was occurring and, in turn, proportionally reduce any offending state’s representation in the House.

This proposal elicited an objection that the Interior secretary was being made the final arbiter of a responsibility entrusted by the reduction clause to Congress itself. And the bill’s sponsor eventually backed down, hoping to address the matter in a separate bill and noting that the 15th Amendment—then being ratified by the states—would offer protection against voting infringement. An attempt in the Senate to pass a bill directing the Interior secretary to make good on the reduction clause also failed.

But the matter didn’t end there. The Interior secretary directed those taking the census to list adult male citizens whose votes had been denied or abridged anyway. However, the numbers of such citizens provided to the House of Representatives by the secretary were so “trifling,” as one scholar put it, as to cast doubt on the accuracy and reliability of what he reported. With House members calling the reporting “utterly inaccurate,” the effort at proportional reduction stalled and eventually died, leaving as a trace only an unenforceable new statutory provision affirming that the reduction clause existed. No Congress has asked for a similar census report since.

The silence from Congress has led some to look to the courts to invoke the reduction clause.

Victor Sharrow was a criminal defendant accused of refusing to provide answers to the 1960 census. Creatively—perhaps too creatively—he looked to the reduction clause as a defense. In particular, he argued that the Census Act under which he’d been charged was unconstitutional because it failed to include a question about voting abridgments or denials as required (in Sharrow’s view) to fulfill the terms of the reduction clause. Without this question on the census, his argument went, there was no way to know if states should have their congressional representation reduced; and so, he continued, he shouldn’t have to participate in a constitutionally deficient census.

Sharrow lost in the trial, and he lost again in the 2nd U.S. Circuit Court of Appeals, which upheld his conviction. The court concluded that, whatever the reduction clause meant, it didn’t require Congress to seek, as part of the constitutionally mandated decennial census, “information relative to disenfranchisement.” What the clause might, in fact, demand of Congress was a question left for another day.

Others who chose to go to court to invoke the reduction clause have also fared poorly. Almost 20 years before Sharrow invoked the clause in a failed attempt to stave off criminal prosecution, a Virginia citizen named Henry Saunders sued Virginia’s secretary of state, Ralph Wilkins. Saunders wanted to run for the U.S. House of Representatives as an at-large candidate, and Wilkins refused to certify his candidacy on the grounds that Virginia didn’t have an at-large position in its congressional delegation. So Saunders sued Wilkins, arguing that, because Virginia had infringed its citizens’ right to vote, the reduction clause required that Virginia’s nine representatives be reduced to no more than four who, in turn, would have to be elected as at-large candidates. Both the trial court and the 4th U.S. Circuit Court of Appeals rejected Saunders’ challenge, with the latter deeming his grievance a political question unsuited for resolution in the courts.

Indeed, two legal scholars, Richard Re and Christopher Re, argue that, in the eyes of its framers, the reduction clause’s “apportionment penalty [was] not viewed as justiciable,” meaning suitable for enforcement in court. That characterization of a wholly congressional responsibility devoid of any possible judicial involvement may overstate the views of key framers, however, especially as they continued to reflect on the matter.

In 1966, a different pair of federal courts provided a rather more nuanced take on the possibility of going to court to enforce the reduction clause. That year, the Court of Appeals for the D.C. Circuit agreed with a lower court’s dismissal of a challenge brought by voters seeking a court order requiring the Census Bureau to count abridgments of the right to vote so as to enforce the reduction clause. The court ducked the question, indicating that the newly enacted Voting Rights Act should be given time to serve its intended function and perhaps render unnecessary this type of lawsuit. But, intriguingly, the court also threw a bone to the challengers, noting that, “in telling appellants that events have made their complaint unsuitable for judicial disposition at this time, we think it also premature to conclude that Section 2 of the Fourteenth Amendment does not mean what it appears to say.”

Perhaps encouraged by that language, Victor Sharrow—yes, the same Sharrow who’d tried to raise the reduction clause to fend off criminal prosecution—decided to try again. This time, he initiated the litigation, suing the Census Bureau’s director for failing to count the number of voters disenfranchised in states other than New York, on the theory that such a count would decrease the disenfranchising states’ representation in Congress and increase New York’s, thus boosting his political influence as a New York voter. In 1971, the 2nd Circuit handed him another defeat, holding that he failed to show the particularized harm to his own voting rights to allow him to pursue his claim in court.

At the same time, the judges who dispensed of Sharrow’s 1971 challenge identified a difficult question even if they ducked in providing an answer: Even if the Census Bureau collected the disenfranchisement data what, precisely, would happen next?

The judges were right that figuring out how to realize the lost promise of the reduction clause, especially through litigation, implicates a host of complicated, interrelated questions. To begin with, what exactly qualifies as a disenfranchisement for these purposes, anyway—for example, does a voter ID law count? And how much disenfranchisement would have to be found—that is, how many voting-eligible citizens would such a voter ID law need to affect? Measured how, exactly?

Then who would strip the disenfranchising states of the right number of representatives: Congress or a federal court? Would the states immediately need to redistrict to reflect their reduced number of representatives and vote for that number of House members in newly formed districts? Or would representatives in those states all become, at least temporarily, at-large members, as Saunders argued in his lawsuit?

And what would happen to the “slots” in the House of Representatives now taken from the disenfranchising states: Would they be allocated to other states so that the total number of House members would remain at 435, as most scholars agree would be required? If so, which ones—by giving (loaning?) them to the states already closest, in population terms, to having additional House members anyway or through some other method (such as reallocating them to the states performing best in ensuring voting rights, perhaps)?

And how long would this punishment last? The clause’s text gives no sense of how a disenfranchising state can make amends and earn back its lost representation. Does a disenfranchising state automatically get back, at the next set of federal elections, the full slate of House members it would otherwise have? Or must data collected from that state show that disenfranchisement has now ceased? And who makes that call: Congress, or a federal court?

Even to those passionate about resurrecting a portion of our Constitution intended to vindicate the full promise of the Reconstruction amendments, these are hard questions raised by any attempt to enforce the reduction clause. And the text of the clause itself doesn’t provide the answers.

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As creative litigants continue to rethink their strategies for judicial enforcement, we should also look to Congress, as the clause’s framers anticipated, to make good on the clause’s now-forgotten promise.

But what went wrong in the 1870s—a failure to figure out what data to collect, how to collect it and how to analyze it—has remained a major obstacle to realizing the promise of the reduction clause. Recall that Congress has relatively limited practical ability to gather data on its own. Congress does, of course, hold hearings that can yield voluminous factual records that, in turn, can inform the laws that Congress proposes (and, once in a while, even enacts), as well as the oversight that Congress conducts. But that’s indirect data-gathering: Congress is generally reliant on witnesses, apart from its exceedingly small staff of investigators who conduct their own analysis on particularly important (and often sensitive) issues.

So, utilizing the reduction clause demands data that Congress has a hard time obtaining on its own. But Congress can require the executive branch to go out and get that data. And that’s the most immediate way to revitalize this lost provision of the Constitution.

In particular, Congress should require by federal law that the Census Bureau survey Americans regarding voting infringement. This would be the first word, not the last word: Self-reporting surely would demand follow-up investigation rather than serving, on its own, as the basis for calculating the proportion of a state’s citizens—now to include all of its voting-eligible citizens—whose right to vote has been infringed. But it’d be a start, and an important one. And it’s probably what the clause’s framers anticipated, given that, at the time, the decennial census asked about a wider range of information than it does today, likely leading the clause’s framers to view it as natural for questions about voting infringement to be added.

Congress must make sure of something else, too: that the Census Bureau pursues this work not through the decennial census but through the American Communities Survey that the bureau conducts on an ongoing basis. The decennial census has a single goal assigned to it by the Constitution: to achieve an “actual Enumeration” of all of those present in the United States. That’s why Congress has required the Census Bureau to stick to that goal and demanded that it pursue other interesting, important data through other means, such as the ACS. This issue was at the heart of the recent fight over the Trump administration’s effort to add a citizenship question to the 2020 census, with opponents emphasizing that any question that could detract from achieving an actual enumeration should not be added.

But the ACS serves broader goals by gathering information from 3.5 million households each year on an ongoing basis. And asking about voting infringement seems like an eminently sensible addition to the ACS. How, exactly, the ACS should ask about voter infringement in a way that elicits the most useful answers for further study is the type of challenge the Census Bureau tackles all of the time; and the bureau’s experts would be well placed to engage in extensive testing and sampling to refine what series of questions, phrased in particular ways, would yield the information most helpful for reduction clause enforcement, including data on known forms of voter discrimination as well as the identification of new forms. (There’s also a lot to be learned here from the work of Yale Law School’s dean, Heather Gerken, in developing a “democracy index.”) All told, as a first step toward—finally—living up to its reduction clause responsibilities, Congress should require that question be added to the ACS for analysis by the Census Bureau and Justice Department Voting Rights Section, including over a presidential veto if necessary.

There’s historical precedent that shows the executive branch to be more than capable of carrying out this type of work successfully. Investigating voter suppression and intimidation is precisely what a team at the Justice Department’s Voting Rights Section did to important effect for decades—until the Supreme Court, in its 2013 Shelby County decision, gutted the law it was enforcing. Its work provides a road map for how reduction clause investigations could proceed. Those investigators often would begin with self-reported voter suppression, as well as with proactive efforts to scan for problems. They would then interview local election officials, key advocates and ordinary voters to determine whether voting was infringed by, for example, proposed changes to polling locations or proposed alterations to the hours such locations would be open on election day. And then the investigators would analyze what they heard to determine whether an intended change would rise to the level of an infringement on voting. Nothing this complex can ever be reduced to a formula of mathematical precision, of course, but that doesn’t make it impossible to achieve through rigorous research and structured analysis. And, to maximize revitalization of the reduction clause, the Census Bureau and the Justice Department’s Voting Rights Section should be ordered, by statute, to collaborate on this work.

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Even as we wait for Congress to act, the reduction clause needn’t remain totally fallow. Section 2 of the Voting Rights Act of 1965 is a central provision of landmark anti-discrimination legislation. It prohibits discriminatory voting practices or procedures. And, when a legal challenge to Section 2 went all the way to the Supreme Court in 1980, the court upheld it on the grounds that Congress had authority to enact it under the 15th Amendment—the Reconstruction amendment focused on protecting voting rights.

That was a narrow victory for voting rights, delivered by a four-justice plurality of the court bolstered by two justices who concurred in the result but declined to join the plurality opinion. With the court having subsequently gutted a different provision of the Voting Rights Act in 2013 and given the court’s increasingly right-leaning composition, it’s not hard to imagine a legal challenge revisiting the 1980 decision making its way to the court.

This time, in defending Section 2 of the Voting Rights Act, litigants shouldn’t rely only on the 15th Amendment—they should look to the reduction clause, as well. Properly understood, the clause’s capacious language penalizing infringements that “in any way abridged” voting rights means that the subsequent Voting Rights Act should not be limited to banning only abridgment by intent. To the contrary, as Franita Tolson, a law professor at the University of Southern California, has explained, “Section 2 of the Fourteenth Amendment justifies any law that prevent states from unduly circumscribing the electorate, regardless of intent, and it provides ample constitutional support for section 2 of the Voting Rights Act.” That’s true, as Tolson has further elaborated, even if the Congress that enacted the Voting Rights Act didn’t explicitly invoke the reduction clause at the time as a constitutional basis for the law.

In the here and now, the reduction clause can and should be used in court to protect and defend a vital provision of the Voting Rights Act—even as the clause bides its time for full utilization in Congress.

Over 50 years ago, attorney Eugene Sidney Bayer called the reduction clause “a neglected weapon for defense of the voting rights of southern negroes.” So it remains today.

It’s time to resurrect these 110 words of the most important amendment to the world’s most important constitution. The authors of those words looked to Congress to ensure that the most fundamental aspect of American democracy—the right to vote—would be upheld. Today, with the closure of polling locations, spread of voter identification laws, and purging of voter rolls, the right to vote is, yet again, under siege.

Perhaps, a skeptical reader might say, Congress will never actually strip a state of its representatives in the House, and perhaps a court will never actually order that penalty to be imposed. Perhaps. But that neither excuses nor counsels against the House from taking the first step by demanding, by law, the data on how much voting infringement is actually occurring around the country. We deserve to know that, as a nation. What’s more, taking the first step toward making good on the penalty authorized by the reduction clause can serve as at least something of the powerful deterrent the clause’s framers anticipated—a deterrent we so desperately need right now to vindicate, once again, the promise of the Reconstruction amendments: the promise of the right to vote.