[EL] Reduction of representation under section two of the 14th Amendment: relevant cites for an article in process?

[Michael Morley]

Hi,

Vice Dean Franita Tolson has written one of the most important pieces on Section 2 of the Fourteenth Amendment, arguing that Congress' power to strip states of representation in the House and, by extension, the electoral college, suggests that it has broad authority to take lesser steps to enforce voting rights, including the various measures included within the Voting Rights Act.  This piece is very sensitive to the federalism-related aspects of election regulation.  Franita Tolson, The Constitutional Structure of Voting Rights Enforcement, 89 Wash. L. Rev. 379, 384-85 (2014).

Gabriel Chin is perhaps most closely associated with the argument you mentioned, contending that the Fifteenth Amendment implicitly repealed Section 2.  Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 59 (2004).

William Van Alstyne argued that Section 2 compelled states to expand voting rights, rather than leaving them a choice as to whether to extend voting rights or instead accept reduction in representation.  William W. Van Alstyne, The Fourteenth Amendment, the "Right" to Vote, and the Understanding of the Thirty-Ninth Congress, 1965 Sup. Ct. Rev. 33, 45-46.  Mark Killenback & Steve Sheppard have also argued for a broad interpretation of Section 2, contending it renders term limits unconstitutional.  Mark R. Killenback & Steve Sheppard, Another Such Victory?  Term Limits, Section 2 of the Fourteenth Amendment, and the Right to Representation, 45 Hastings L.J. 1121 (1994).

In addition to your own work, of course, there are several good histories of the development of Section 2, as well.  See, e.g., George David Zuckerman, A Consideration of the History and Present Status of Section 2 of the Fourteenth Amendment, 30 Fordham L. Rev. 93 (1961); Earl Maltz, Moving Beyond Race: The Joint Committee  Reconstruction and the Drafting of the Fourteenth Amendment, 42 Hastings Const. L.Q. 287 (2015); Benjamin B. Kendrick, The History of the Joint Committee on Reconstruction, in Journal of the Joint Committee of Fifteenth on Reconstruction (1914).

My piece, Michael T. Morley, Remedial Equilibration and the Right to Vote Under Section 2 of the Fourteenth Amendment, 2015 U. Chi. L. Forum 279,  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2585238, offers something of a different approach.  Applying Daryl Levinson's theory of remedial equilibration, it contends that the extremity of the only remedy expressly set forth in Section 2 - reduction in representation in the House and Electoral College - offers insight into how severe a restriction must be in order to constitute a denial or abridgement of the right to vote under the Fourteenth Amendment.  Construing the scope and proper application of the right to vote through the lens of Section 2, the piece argues, leads to a more constitutionally-rooted conception of the right, and is preferably to the subjective, ad hoc Anderson-Burdick balancing test courts currently employ.    The article thus draws upon many of the same considerations as Dean Tolson's, but draws some different conclusions.

Turning to the Census of 1870 - the first in which states faced the possibility of reduction in representation - the piece offers an originalist account of the types of restrictions that were, and were not, understood as violating the right to vote.  Building on the work of Richard M. Re & Christopher M. Re, Voting and Vice Criminal Disenfranchisement and the Reconstruction Amendments, 121 Yale L.J. 1584 (2012), it also contests Professor Chin's view of Section 2, arguing that the Fifteenth Amendment did not nullify or supersede it, but instead supplemented it by imposing additional duties and providing new remedies.

Hope this helps!

Michael

Michael T. Morley
Assistant Professor of Law
Florida State University College of Law
(860) 778-3883


________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Mark Scarberry <mark.scarberry at pepperdine.edu>
Sent: Tuesday, July 16, 2019 3:57 AM
To: Election Law Listserv
Subject: [EL] Reduction of representation under section two of the 14th Amendment: relevant cites for an article in process?

Some scholars have suggested that the provision in section two of the 14th Amendment for reduction of representation has in effect been repealed (or at least made a dead letter) by adoption of later amendments and by the Supreme Court's fundamental rights analysis.

It seems to me that there still are circumstances under which the provision might apply. Also, it isn't inconceivable that the Supreme Court might change its approach to voting rights. Or perhaps courts might be unable for some reason to protect voting rights. Congress then might decide to enforce the provision and reduce a state's representation in the House (and correspondingly the number of its presidential electoral votes).

What are the best current treatments of these issues? (Or even treatments of them that some list members might not consider the best.)

I want to make sure I cite all the relevant literature in an article I'm currently writing. Please don't be reluctant to send me cites to your own work. (I hate it when something of mine should be cited but isn't!)

Best,
Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law
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