But when the right to vote at any election ... is denied to any of the male inhabitants of such State ... 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.

I've abridged Section 2 but this is the gist.
I know that denial occurred for 100 years (at least) after passage of the amendment but I'm wondering if Congress ever reduced a state's representation due to denying citizens the right to vote.

  • Given the massive prison population of the US and the fact that felons are denied the right to vote, I suspect that that would be the vector through which any such penalties would originate, rather than racial discrimination. It also seems entirely possible that this is already taken into account during the tabulation of census results (if they ask about your criminal history on it), so you might want to look into the procedures for that to find out. – nick012000 Dec 28 '20 at 16:06
  • Section 2 also has the first sentence which you've omitted: "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." So it would be rare and dangerous for a state to outright exclude eligible voters, but this says nothing about gerrymandering, which is what happened as a result (and unlike other developed countries, there's no guarantee that each state's redistricting is done by neutral non-partisan civil servants, not political appointees). – smci Dec 29 '20 at 6:19

As far as I know this has never happened. I believe that this is because it is a really tough clause to do anything with:

  • To start with, it would typically take massive disenfranchisement (100k voters+) to cost a state a representative in Congress. (Sure, it's possible that a state is right on the edge and a handful of voters would make a difference, but it's pretty unlikely, and in nearly all cases of disenfranchisement, it won't be close.) The law works very much on a "no harm no foul" basis and the courts would not consider a case which made no material difference. Nor would Congress.

  • A law which makes it hard to vote is not the same as a law which denies the right to vote and it's only the latter which is prohibited here. When the Constitution uses categorical terms the courts -- correctly -- are loath to substitute their own judgment of what ought to be. It would be hard to get a Federal court to take such a case and it would not be easy to argue in Congress than the clause had been violated.

  • Historically, Congress is the judge of such things and has always viewed getting too deeply into judging individual states' electoral matters as a Can of Worms. And politicians don't like cans of worms. They tend to reserve such things to cases which (1) are really egregious or (2) benefit their own party (and preferably both!)

  • I think that if Congress were to take action, it would require a vote by both House and Senate, so in the first hundred years (when the South was solidly Democratic) the only time such a decision could have passed is when the Republicans had a big majority in both houses. (I say a "big majority" because I suspect that there would be moderates who would be uncomfortable with such an obviously partisan move.) This didn't happen often.

  • Finally, it would be a tough case for an individual to prosecute since the US court system does not allow theoretical suits. To file, the person filing the suit must have been personally harmed and it would be difficult to establish that you have been personally harmed by your own state failing to lose representation in Congress. Inhabitants of whatever state would have picked up a seat arguably would be harmed, but the courts usually say that such harms are too indirect to provide standing. (One state could sue another, but this is very rare and only the state that stood to gain a seat would have standing.)

Note that what the country eventually did do was pass the Voting Rights Bill which rather invasively regulated voting in many states where there was de facto denial of the opportunity to vote and because it dealt with de facto rather than de jure denials, was probably more effective.

  • Thanks so much for the answer. Really solid points. One thing that pops in to my head is that there must have been millions of African Americans in the south who had standing to sue over the next 100 years. The point of the law was to protect against disenfranchisement so their states not losing representation would seem to harm them. – jonstieg Dec 27 '20 at 23:05
  • Also, I think the only time when a suit would have been feasible is shortly after passage of the amendment when the Republicans were still in firm control of the House and Senate but the southern Democrats had already started to pass discriminatory laws. I'm in the middle of a book about reconstruction. I wonder if I'll be able to find an example. – jonstieg Dec 27 '20 at 23:06
  • I would hope that a court would have found that poll taxes and the like were violations of the 14th amendments. I read of at least one example where the Governor at the time admitted that the point of the restrictive voting law was to disenfranchise African Americans. – jonstieg Dec 27 '20 at 23:10
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    @nick012000 If you look at the whole text (not the elided portion in the question) you'll find that it says "...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..." The amendment specifically allows criminals and rebels to be deprived of their vote. – Mark Olson Dec 28 '20 at 16:22
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    There was massive disenfranchisement. I'm not sure what you mean by "A law which makes it hard to vote is not the same as a law which denies the right to vote". Would having a "literacy" requirement be in the "hard to vote" category or "denies the right"? What about ID requirement? – Acccumulation Dec 29 '20 at 3:02

Some legal scholars argue that section 2 was essentially revoked by the 15th Amendment, only a year and a half later.

Section 2 basically says, "If you insist on discriminating in voting rights, here's what's going to happen to you", whereas the 15th amendment flat out prohibits racial discrimination in voting rights.

There have been multiple cases that referenced section 2, but always at its margins (usually in relation to its criminal exemption). Hunter vs. Underwood is interesting, as a state tried to use section 2 to enable voting discrimination by employing a racist criminal statute.

It does seem that Congress made an attempt to invoke Section 2 after the census of 1870, but "was unable to identify enough disenfranchised voters to make a difference to any state's representation." There was also a lawsuit in 1945 against the Virginia poll tax that tried to employ it, but it got dismissed.

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    Good points. As I read it, the 14th provides a punishment for the violations which the 15th doesn't. I think. Or maybe not. That whole bit of Constitutional law is a mess and, fortunately, no longer a live issue. (I'd hate to see us ever again get to a point where it needed to be adjudicated!) – Mark Olson Dec 27 '20 at 17:25
  • Nice find with the 1870 Census attempt. I don't know about the 15th amendment revoking the 14th amendment (section 2). What about section 2 of the 15th that says "The Congress shall have the power to enforce this article by appropriate legislation." That "appropriate legislation" could be Section 2 of the 14th. – jonstieg Dec 27 '20 at 23:14
  • It's odd those legal scholars wouldn't see this as: 1) racial discrimination in voting rights is flat-out prohibited, and 2) if you violate such prohibition, or if you perform similar discrimination, against male citizen inhabitants that are 21+, here's what's going to happen to you. To me, that doesn't sound like a contradiction / overriding rule. – Panzercrisis Dec 28 '20 at 14:49
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    @Panzercrisis Because they happened in the other order. The 14th said "if you use the power to do X, then Y happens". Then the 15th said "You do not have the power to do X." Ergo, logically speaking, Y can never happen as a consequence of the 14th. In such an argument, the 14th made no express elimination of state powers here, it simply encoded consequences for the exercise of certain powers. The 15th is the one that removed a state power. – zibadawa timmy Dec 28 '20 at 16:03
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    @zibadawatimmy That doesn't make sense. Just because something is prohibited doesn't mean it won't happen. Furthermore, the 14th doesn't say anything about racial discrimination. If a bunch of black people end up not being able to vote for totally not racist reasons, the 14th still applies. – Acccumulation Dec 29 '20 at 2:58

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