The 14th Amendment says states that infringe the vote must lose representation in Congress. It’s time to actually make this happen, Joshua Geltzer writes.
, assaults on the right to vote nationwide illustrate that we need these lost words back, urgently.
The Reconstruction Republicans who crafted the Fourteenth Amendment thought Section 2’s second sentence was quite important—critical, in fact, to ensuring that 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.
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.
Others who chose to go to court specifically to invoke the Reduction Clause have also fared poorly. Almost 20 years before Sharrow raised 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 election to the U.S.
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? And how long would this punishment last? The Clause’s text itself gives no sense of how a disenfranchising state can make amends and earn back its lost representation.
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