The Forum

As the country grapples with the ongoing legacy of the January 6 insurrection at the U.S. Capitol, the Republican party is already angling to reprise the script behind the failed coup attempt. GOP leaders and strategists are mobilizing voter-suppression efforts to deploy during the 2022 midterms. According to a recent Washington Post report, more than half of GOP candidates in this year’s primaries thus far have claimed that the 2020 presidential balloting was fraudulent. The GOP has fielded 23 election-denying candidates for secretary of state in 18 states—along with 54 out of 87 statewide candidates charged with certifying presidential election results in the six key swing states likely to determine the outcome of the 2024 presidential balloting.

And in order to keep the stolen-election narrative afloat, former President Donald Trump himself has been continuing to recklessly stoke misinformation and looking to recruit state officials to his anti-democratic cause. Robin Vos, the speaker of Wisconsin’s state Assembly, recently reported that Trump asked in July 2022—20 months after the 2020 presidential election—to overturn the results of the 2020 presidential election in Wisconsin.

Trump made his appeal to Vos after the Wisconsin Supreme Court ruled that most absentee ballot drop boxes in the state are illegal. The ruling, which was issued on July 8, applies to future elections—not the 2020 election that Trump lost. After the court’s decision, Vos told a Milwaukee television station that he refused Trump’s push to overturn the results, saying “it’s not allowed under the Constitution.”

But what the broader political trauma of the Trump years has shown is that constitutional authority is very much a provisional, politically conditioned arbiter of how and whether our democracy functions. Indeed, throughout our history, we’ve seen that what is allowed under the federal Constitution is not always right. And as a whole battery of authoritarian forces on the contemporary right, from Trump’s GOP to the United States Supreme Court, affirms the obverse truth: what is right in the Constitution is not always allowed.

Consider once more in this connection the January 6 insurrection and its fallout. It would undoubtedly be a triumph if Donald Trump and his enablers were to be convicted on criminal charges for conning his supporters into violently breaching the Capitol building on January 6. The U.S. Department of Justice has already arrested and charged hundreds of ordinary citizens who trespassed into the Capitol, ransacked its hallowed hallways, and defiled the sacred process of the transfer of presidential power.

The prospect of creating individual accountability for Trump’s henchmen is refreshing in a country that has allowed white men to terrorize Black voters and enact voter suppression laws with impunity. Yet even if the January 6 proceedings produce individual accountability at the highest level, the structural mechanisms embedded in our Constitution to ensure the right to vote are languishing in disuse, a century and half after they were enacted as part of the Fourteenth Amendment.

The story of this state of malign neglect speaks volumes about our vote-challenged and racially bisected electoral system. After the Union Army occupied the South during the aftermath of the Civil War in 1865, the 39th Congress contemplated how the restored Union would hold insurrectionists accountable for their actions. One remedy was section 2 of the Fourteenth Amendment, which reads as follows:

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.

It’s important, in spelling out the unclaimed legacy of this section of the Fourteenth Amendment, to recall the broader objective of the Amendment itself. Its explicit purpose, as the Radical Republicans who championed it clearly affirmed, was to secure civil rights for Black Americans during Reconstruction. On May 8, 1866, the House of Representatives debated whether to consider the Fourteenth Amendment as reported by Congress’s joint committee on Reconstruction—and Radical Republican Thaddeus Stevens, a co-chair of the committee, told his peers that the anti-insurrection language of the second section was critical. “The second section I consider the most important in the article,” he said, and then underlined the importance of securing the franchise for Black freedmen. “It fixes the basis of representation in Congress. If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion.”

And the flip side of securing Black franchise in the South was the threat of denying it to unreconstructed Southern secessionists. Just a few months after Robert E. Lee surrendered to Union forces in 1865, former Confederate soldiers attempted to make their way into the Union as elected officials in slaveholding states. The results of the first authorized elections from the South at the end of 1865 yielded four confederate generals, five Confederate colonels, six members of the Confederate cabinet, and 58 members of the Confederate congress. This all-white, traitorous electorate, including the former vice president of the Confederacy, Alexander H. Stephens, was setting itself up to reclaim power at the summit of the country they were still trying to overthrow and destroy just months earlier.

In response to this urgent threat, the 39th Congress created the joint committee on Reconstruction in December 1865 to “inquire into the condition of the States which formed the so-called confederate State of America, and report whether they or any of them are entitled to be represented in either House of Congress . . . and until such report shall have been made and finally acted upon by Congress, no member shall be received into either House from any of the said so-called confederate States.” As the committee convened, the southern states had already unleashed a new reign of terror on formerly enslaved Blacks by passing “Black codes,” to produce a racial hierarchy rooted in the coercive hatreds of slavery. The earliest Black codes were legislated Journal of Mississippi legislature in Mississippi on November 22nd 1865, honoring future President Andrew Johnson’s 1864 proclamation in the hall of the House of Representatives: “I am for a white man’s government, and in favor of free white qualified voters controlling this country, without regard to negroes.”

The subsequent history of racial power in the South vindicated Johnson’s political vision—and jettisoned Stevens’s. And the vital second section of the Fourteenth Amendment that Stevens saw as the centerpiece of racial justice in the South consequently went unenforced. The reassertion of white supremacy in the former Confederacy came with no political costs for the postbellum white oligarchy. And in our own age of militant white backlash, as the key provisions of the 1965 Voting Rights Act were rolled back under the right-wing Roberts Court, states across the country have ushered in the same dynamic of disfranchisement and white retrenchment.

Just look at the handiwork of Republican state legislatures in 2021. As the January 6 committee investigated Trump after his defeat, states enacted a bevy of laws to disenfranchise voters. Between January 1 and December 7, at least 19 states passed 34 restrictive laws creating onerous obstacles to ballot access that disproportionately target Black voters and communities of color. This is all work that picks up where the white elite of the postbellum South left off.

It’s also why the backers of Section 2 understood that enforcement was key. The year after the Fourteenth Amendment was ratified, the Republicans resumed the fight to enforce section 2 by creating a select committee to prepare for the taking of the ninth U.S. census; this body would investigate laws in each state that disenfranchised citizens from voting. The head of the committee and superintendent of the census was Ohio Republican Congressman James A. Garfield. Garfield well understood that the stakes of the inquiry: The apportionment of congressional seats in 1870 would draw directly on the census’s findings. But the members of the committee faced a problem: they were surprised by the ramifications of the Fourteenth Amendment in the traditional scrum for representational power in Congress, since it not only secured the voting rights of the historically disenfranchised Black male electorate, but also revoked representation for the disenfranchisement of anyone who hadn’t participated in rebellion or other crimes.

Garfield called attention to these issues. “It was not discovered, until after the committee had been in session some time, that the fourteenth amendment required a readjustment of our schedule of population; and it is a curious fact—perhaps not new to every gentleman in this House, though it certainly was to me—that the provisions of the fourteenth amendment to the Constitution changes the representative basis of the national Legislature in a way that no one, so far as I remember, supposed it would when that amendment was before Congress,” Garfield said. “Everybody knew, of course, that there was a change, but none seemed to be aware how radical and sweeping that change was . . .  The fourteenth amendment, so far as it related to suffrage, was generally understood as referring exclusively to the denial of the right to vote on account of race or color. But the language of the Constitution is much broader. It is in substance that wherever the right to vote is denied or abridged in any State, not merely on account of race or color, but for any other reason than rebellion or crime, in that State the basis of representation shall be reduced proportionately.” These issues have never been resolved in America’s politics of representation since Garfield raised them.

Fast forward 142 years. In May 2011, the GOP-dominated Wisconsin Legislature passed Wisconsin Act 23 under the leadership of Republican Gov. Scott Walker. The law required Wisconsin residents to present a photo ID to vote. In April 2014, U.S. District Judge Lynn Adelman ruled that Act 23 disenfranchised 300,000 registered voters—9 percent of the state’s total—because they did not have identification that met the law’s requirements. Three months later, the Wisconsin Supreme Court upheld Act 23.

Act 23, as it now happens, is the subject of a lawsuit filed by DC-area attorney Jared Pettinato that seeks at last to bring about enforcement of section 2 of the Fourteenth Amendment. Pettinato is suing the Census Bureau under the theory that since it’s the agency that apportions seats to the House of Representatives, it also has the legal responsibility to apply the Fourteenth Amendment’s penalty clause. According to Politico, “the complaint holds Wisconsin up as an easy example for the Census Bureau to apply: Under the penalty clause, the state should lose 9 percent of its representatives, which rounds to one seat in the House. That seat would shift to another state.”

At first glance, this formula might indeed seem “easy”—but using the census to apply the penalty has vexed Congress for more than a century. To determine whose right to vote was denied or abridged, one question was added to Schedule 1 of the 1870 census: “Male Citizens of U.S. of 21 years of age and upwards, whose right to vote is denied or abridged on other grounds than rebellion or other crime.”

But the question yielded few clear answers. “Many persons never try to vote, and therefore do not know whether their right to vote is or is not abridged. It is not only those whose votes have actually been challenged, and refused at the polls for some disability or want of qualification, who must be reported in this column,” Garfield said in his instructions. Garfield did not provide federal marshals with a way of documenting which law—precisely—disenfranchised each voter because the instructions  directed marshals to answer the question with a simple and unqualified “yes.”

Pettinato’s lawsuit circumvents this tragic error by citing Judge Adelman’s ruling on Act 23. Because Adelman found that 300,000 registered voters were disenfranchised under its provisions, enforcing the penalty clause would mean Wisconsin would lose nine percent of its existing congressional representation.

But the history of investigations concerning section 2 suggests that there’s no easy way to arrive at such straightforward remedies—starting with what constitutes disfranchisement in the first place. Instead of documenting individual instances of voter suppression, Garfield required marshals to “study the laws of their own States in these respects, and to satisfy themselves, in the case of each male citizen of the United States above the age of twenty-one years, whether he does or does not come within one of these classes.” It’s important to note that the laws intended to disenfranchise voters were quite broad, encompassing male voters 21 and over who came within “the scope of any State law denying or abridging suffrage to any class or individual on any other ground than participation in rebellion, or legal conviction of crime.”

The results of the 1870 census show that the South did not hold a monopoly on voter disenfranchisement. Missouri led the field with a reported 9,265 violations. Massachusetts came in second with 3,719—and Rhode Island was third with 2,835 violations. The results seem counterintuitive—but they indicate that perhaps the problem with voter suppression was not confined to the South or to modern-day Republicans. Rather, they are an indictment of American democracy in its totality.

Many of the restrictions that Garfield tracked in 1870 are obsolete in latter-day voting law, but the spirit of their afterlife lives on. Wisconsin, for example, disqualifies “any person who is incapable of understanding the objective of the elective process or who is under guardianship, unless the court has determined that the person is competent to exercise the right to vote” from voting. Citizens deemed “insane” or of “unsound” mind were barred from voting in Wisconsin in 1870, and they were part of the comparatively small number of 301 Wisconsin voters barred from the vote that year.

Applying the penalty in today’s convoluted and digitized system of political enumeration would prove especially challenging, given the overt racial rigging of the vote. For starters, it remains almost as difficult to ascertain the exact number of disenfranchised voters as it was in 1870. In the Wisconsin case, one issue is that section 2 of the Fourteenth Amendment only counts male citizens over 21, which might have implications for the 300,000 number cited in Pettinato’s lawsuit. Only 150,076 people would need to be disenfranchised for Wisconsin to lose a member of the House.

And as the Garfield-led census of 1870 soon discovered, the on-the-ground application of section 2 presented a rather large practical problem for the scheme of penalties laid out in section 2: the number of disenfranchised males over 21 did not overwhelmingly distort representation in states. If the 1870 census showed Missouri had not denied any male citizen 21 and over the right to vote, the state would still have earned the same number of representatives in its delegation—13—as it did with the penalty enforced. It’s largely because of insignificant prospective outcomes such as this that neither Congress nor any other agency has never invoked the penalty. Section 2 of the Fourteenth Amendment has virtually become a dead letter.

Yet past inaction is not an excuse for present neglect. Today’s Congress cannot make the same mistake as the 39th Congress and fail to penalize states that disenfranchise American citizens. A second Donald Trump presidency would unloose a cascade of catastrophic democratic failures—which, as we’ve seen in the January 6 hearings and beyond, are already in motion. Congress should use the available constitutional safeguards in section 2 to prevent Donald Trump and the white-nationalist party arrayed behind him from attempting to execute another political coup.

In a democracy, suffrage is the central currency of our broad civic economy—the means by which citizens alter and re-envision the basic terms of political and social life. Any threat to the right to vote attacks this freedom of self-determination at its foundation.  America has never been a fully functioning democracy, because throughout its history, white people have monopolized the mechanics of suffrage. To finally reverse this toxic dynamic of democratic decline, Congress must surmount the many logistical and enforcement challenges before our ailing body politic and ensure that section 2 of the Fourteenth Amendment can at last do what it was meant to.