The Republican Party is attacking democracy on many fronts, but none so direct as their assault on voting rights. In 2021 alone, 34 laws to restrict ballot access passed in 19 states. Democrats had hoped to pass national voter protection legislation, but were stymied after they failed to reform the filibuster. That doesn’t mean they’re out of options, though. In fact, they have a potential nuclear weapon sitting right there in the Constitution—if they’re willing to use it.
Imagine that Speaker Nancy Pelosi were to declare that several states have violated a clause largely unused and forgotten for 154 years: Section 2 of the Fourteenth Amendment, which mandates that states lose a portion of their congressional delegation if they unduly restrict the right to vote. Sorry, Representative Marjorie Taylor Greene, but Georgia went too far in rolling back voting rights; your state lost a seat in Congress—and it’s yours.
It would be a radical decision, one that some could compare to conservative lawyer John Eastman’s “coup memo” urging Vice President Mike Pence to nullify Electoral College votes. But unlike Eastman’s memo, it would have actual grounding in the text of the Constitution.
Ratified in 1868, the Fourteenth Amendment is the most consequential tweak to the Constitution since the Bill of Rights. The amendment, passed in the heady Reconstruction era following the Civil War, has had wide-ranging consequences on American life. It’s the basis not just for racial justice case law such as Brown v. Board of Education, but also for Gideon v. Wainwright (guarantees your right to a free attorney), Griswold v. Connecticut (made birth control legal for married couples), and Roe v. Wade. “The Fourteenth Amendment has never really been fully utilized to protect the rights of Black people the way Congress intended,” said Eric Foner, one of the preeminent historians of Reconstruction. “But when you get to other kinds of rights, it’s been used in a very vigorous manner.”
Most people know the first clause, the one that guarantees “equal protection of the laws.” But what comes next is often forgotten. It focuses on guaranteeing the right to vote and punishing states that suppress it. The relevant portion states: “[W]hen the right to vote … 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.”
Or in simpler words: States can come up with specious reasons to block people from voting if they wish, but as a consequence, they will lose seats in the House. But the clause has never been successfully used. “One lesson of Section 2,” said Gerard Magliocca, a law professor at Indiana University, “is that even if you craft very specific language and you put it in the Constitution, that doesn’t mean it does anything.”
That doesn’t mean it won’t ever be used, however. Democratic Representative Jamie Raskin told me that he and a handful of colleagues discuss how Section 2—along with Section 3, which bars serving in Congress if you’ve “engaged in insurrection or rebellion”—might be implemented to fight back against anti-democracy forces. “We’re in the fight of our lives for democracy, and we need every tool in the constitutional toolbox on the table,” Raskin said. “This is absolutely something we need to consider.”
With a conservative Supreme Court eroding long-standing voting protections, an inept Congress unable to act, and state Republicans feeding off Trump’s Big Lie to block Democratic voters, perhaps it’s time to consider finally giving Section 2 some teeth.
In the beginning, the Fourteenth Amendment might have just been Section 2. When the House first passed the amendment, it consisted solely of an early version of the section. But it failed to garner the necessary supermajority in the Senate. As a result, the Fourteenth was built out into its final, five-section version. “Originally, [Republicans] envisioned Section 2 as the crown jewel of the Fourteenth Amendment, not Section 1,” said Franita Tolson, a law professor at the University of Southern California.
As Foner writes in The Second Founding: How the Civil War and Reconstruction Remade the Constitution, Section 2 shifted the boundaries of federalism, presenting an “unprecedented degree of national authority to intervene in local affairs.” Yet almost no one was happy with how it was worded. It helped splinter abolition from suffrage groups, since the amendment explicitly mentions “male” enfranchisement. And Radical Republicans were disappointed that the voting section wasn’t fully affirmative. “The Radicals couldn’t get Black suffrage into it,” Foner told me, “so they were looking around for ways to at least encourage the Southern states to give the right to vote to Black men.”
Congress debated enforcing it in 1872, but it deemed numbers from the 1870 census unreliable, and nothing happened. Two years after the Fourteenth was ratified, the Fifteenth Amendment’s broader right to the vote for Black men came into effect, and Section 2 receded to the background for a time. Republicans—particularly Black politicians—regained interest and brought it up in Congress and their party platform in the 1890s and early 1900s, but it never gained real traction. “Congress never did it by itself,” Foner said, “and the Supreme Court said this is a political issue.”
Section 2 has rarely been invoked in constitutional law. But it does allow restrictions based on “participation in rebellion, or other crime,” and courts have cited those last three words to justify felon disenfranchisement. An estimated 5.2 million people lack the right to vote due to that clause, 1.8 million of whom are Black citizens.
Nearly a century after its passage, Section 2 appeared poised for a revival. “There was some more talk of doing something with it in the ’60s,” said Magliocca. The fourth of the 10 demands for the 1963 March on Washington for Jobs and Freedom called for “Enforcement of the Fourteenth Amendment—reducing Congressional representation of states where citizens are disfranchised.” The NAACP Legal Defense Fund filed a lawsuit to spur the federal government to enforce Section 2. And the 1964 Civil Rights Act required that the next census include data on voting. It didn’t explicitly name Section 2, but members of Congress pointed to possible enforcement as motivation. “But once the Voting Rights Act passed [in 1965], everybody decided that’s a better way of dealing with the problem,” Magliocca said.
For a time, that may have been true. But decades later, after the 2013 Supreme Court decision in Shelby County v. Holder that gutted the central provisions of the Voting Rights Act, it’s hard to make that argument. “Section 2 is a statement that the electorate is supposed to be broader and more inclusive,” Tolson said, “and that Congress is going to take a greater role in protecting that.”
“The problem,” Raskin said, “is that the central equal protection clause of the Fourteenth Amendment has been so eviscerated by a right-wing Supreme Court that we need to examine the congressionally activated portions of the Fourteenth Amendment as a counterweight to the disenfranchisement schemes.”
Delineating what would or would not constitute a violation raises tricky questions. Is it voter-ID laws? Voter roll purges? “The devil’s in the details,” Raskin said. “It needs to respond to active disenfranchisement efforts. But there are certainly a lot of those going on.” He noted that many of the broader voting restrictions—repeals of weekend or early voting, say—aren’t as clear-cut. It would be up to Congress to sort out. “It’s been dead for so long that it’s hard to imagine it being resurrected,” Foner said. “Much as I think it should be.”
But that doesn’t mean it’s not time to raise the possibility. We are living in dangerous times—ones that require a revival of the spirit of Reconstruction if we hope to maintain representative democracy. “Everything is hypothetical until it becomes urgent,” Raskin said. “Both Section 2 and Section 3 could be waking up soon. There’s no such thing as a dead letter in the Constitution.”
