The Independent View: Right to Vote Under Section 2 of the Fourteenth Amendment

This is an abstract from, Remedial Equilibration and the Right to Vote Under Section 2 of the Fourteenth Amendment, Michael T Morley - Barry University School of Law on March 25, 2015, at the University of Chicago Legal Forum.

Repeated legal challenges alleging that proof-of-citizenship requirements for registration, voter identification laws, and other procedures aimed at protecting the electoral process violate the constitutional “right to vote.” In adjudicating such cases, courts make effectively subjective judgments about whether the challenged statutes or regulations make voting “too” burdensome.

Section 2 of the Fourteenth Amendment offers critical, and previously overlooked, insight into the scope of the right to vote. It imposes a uniquely severe penalty, reduction in representation in the House of Representatives and Electoral College, when that right is violated. The theory of “remedial deterrence,” a type of “remedial equilibration,” teaches that courts take into account the severity of the remedy for a violation of a legal provision when determining that provision’s scope. Stripping a state of its seats in Congress and votes in the Electoral College is a uniquely severe penalty, effectively nullifying the results of one or more elections, disenfranchising the people who voted for the ejected representatives, diluting the vote of each member of the state’s electorate, and potentially even changing control of Congress or the outcome of a presidential election.

For such a dramatic penalty to be appropriate, a State’s actions would have to be especially egregious, a direct disenfranchisement of certain disfavored groups of people. Facially neutral registration or voting procedures with which a person must comply in order to vote, in contrast, are insufficient to meet this highly demanding standard. This remedial deterrence interpretation of Section 2 is consistent with both the Fourteenth Amendment’s legislative history and Congress’ contemporaneous interpretation of that provision during its immediate attempt to enforce it. All of the state laws and constitutional provisions that Congress concluded violated Section 2 imposed additional qualifications for voting by disenfranchising entire groups of people, such as the poor, the illiterate, or racial minorities, due to their purportedly undesirable traits. The text and structure of Section 2, the debates leading to its enactment, contemporaneous interpretation and application of that provision, and the persuasive considerations underlying remedial deterrence itself all counsel in favor of construing the Fourteenth Amendment right to vote as prohibiting the actual, direct disenfranchisement of disfavored groups of people, and not administrative procedures for registration or voting.

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