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In April, pundits feasted on the U.S. Census Bureau’s announcement of state population figures for 2020 and the resulting reapportionment of seats in the House of Representatives prior to the 2022 elections. The winners? Texas, Florida, North Carolina, Colorado, Oregon, and Montana. The losers? California, New York, Illinois, Pennsylvania, Ohio, Michigan, and West Virginia. Using 2020 presidential election results as a proxy, that’s a potential net gain of five seats in Congress—and five Electoral College votes—for the Republican Party.
Not so fast.
The decennial census and the reapportionment of seats in the House are both governed by the U.S. Constitution.
So is the proportional reduction in the size of each state’s House delegation for each adult male over the age of twenty-one whose right to vote in national or state elections is denied or abridged, unless based on participation in rebellion or crime. If a state denies or abridges the voting rights of ten percent of such men, for example, the Constitution requires it to be punished with a ten percent reduction in its population count when House seats are apportioned.
Strict constructionists need to pay attention: this is what the second section of the 14th Amendment, ratified in 1868, says. Those lines are as much a part of the U.S. Constitution as the words of the Second Amendment are. Designed primarily to protect the voting rights of freed male slaves in the former Confederacy, the 14th Amendment’s second section offered all U.S. states a stark choice: enfranchise those freedmen (and other adult male citizens previously denied voting rights) or suffer a loss of voting power in the House of Representatives and Electoral College.
It’s a powerful weapon against the attempts to limit the franchise that are sprouting up in legislatures around the country now. So why hasn’t Secretary of Commerce Gina Raimondo announced the results of the Census Bureau’s annual report on voting rights denials and abridgements—as well as the resulting reductions in Census Bureau population counts for reapportioning seats in the House?
Why hasn’t Attorney General Merrick Garland released the Justice Department’s statistics for voting rights violations during the 2020 elections?
When is Speaker Nancy Pelosi going to announce the House’s plans for adjusting the Census Bureau’s population figures in accordance with the 14th Amendment?
When are California Attorney General Rob Bonta, New York Attorney General Letitia James, and the attorneys general of five other states at risk of losing seats in the House going to file lawsuits against the Census Bureau, the Commerce Department, and the House of Representatives for diluting their representation in the House and Electoral College, in violation of the 14th Amendment?
The answer to all of these questions?
Not any time soon, because neither the executive nor the legislative branches of the federal government have ever enforced the second section of the 14th Amendment. Not ever. Millions of adult male U.S. citizens, mostly people of color, were denied voting rights in the century after the ratification of the 14th Amendment, but no state was ever penalized by having its representation in the House or Electoral College reduced.
Some say that this is because the 15th Amendment, which prohibited race-based denials of voting rights, superseded these provisions of the 14th Amendment. But the 15th Amendment only deals with race-based denials of voting rights. The 14th Amendment’s second section is much broader, covering a larger set of denials and abridgements of the right to vote for males over the age of twenty-one. The 14th Amendment covers all voting rights denials and abridgements for adult males over the age of twenty-one, regardless of the cause. The only permitted exceptions were for participation in rebellion or crime.
Some might wonder if the 19th and 26th Amendments, which prohibited voting rights denials based on sex and age (for those over the age of eighteen), broadened the reach of the 14th Amendment second section. Should state delegations to the House be reduced proportionally for men and women over the age of eighteen who are denied the right to vote?
That’s a valid topic for debate and discussion. So let’s have it.
Some might ask if there were enough voting rights denials in 2020 to lead to real adjustments in the allocation of seats in the House. The answer is: we don’t know, but we should. After all, the Census Bureau’s recent figures suggest that some states gained or lost seats based on very small population numbers.
But even if the numbers of voting rights denials in 2020 were too small to make a difference, and even if documenting and counting them would be difficult, reporting on those figures would serve an important educational function. They might even influence future actions by states tempted to limit and restrict voting rights.
There can be no debate or discussion about what the words of the 14th Amendment’s second section require. It’s right there, printed on the page.
In the current political moment, when Florida, Georgia, Texas, and other states are enacting laws that threaten to deny and abridge voting rights, it is time to use the tools that the authors of the 14th Amendment placed in our hands.
That is why they are there.
Marc Stein is the Jamie and Phyllis Pasker Professor of History at San Francisco State University. His next book, Queer Public History: Essays on Scholarly Activism, will be published by the University of California Press in 2022.