The Forgotten Constitutional Weapon Against Voter Restrictions

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A former Justice Department lawyer thinks he’s found a way to penalize states that undermine voting rights.

It’s been a hard few years for people worried about voting rights in America. Republican-controlled states are imposing a raft of new restrictions. A divided Congress has failed to pass any legislation in response. And the Supreme Court just agreed to hear a case that could give state legislatures unchecked power over election rules.

But perhaps a largely forgotten provision of the Constitution offers a solution to safeguard American democracy. Created amid some of the country’s most violent clashes over voting rights, Section 2 of the 14th Amendment provides a harsh penalty for any state where the right to vote is denied “or in any way abridged.”

A state that crosses the line would lose a percentage of its seats in the House of Representatives in proportion to how many voters it disenfranchises. If a state abridges voting rights for, say, 10 percent of its eligible voters, that state would lose 10 percent of its representatives — and with fewer House seats, it would get fewer votes in the Electoral College, too.

Under the so-called penalty clause, it doesn’t matter how a state abridges the right to vote, or even why. The framers of the constitutional amendment worried that they would not be able to predict all the creative ways that states would find to disenfranchise Black voters. They designed the clause so that they wouldn’t have to. “No matter what may be the ground of exclusion,” Sen. Jacob Howard, a Republican from Michigan, explained in 1866, “whether a want of education, a want of property, a want of color, or a want of anything else, it is sufficient that the person is excluded from the category of voters, and the State loses representation in proportion.”

That approach could come in handy for discouraging states from imposing more limits on voting, as the country witnesses what Adam Lioz, senior policy counsel at the NAACP Legal Defense Fund, calls “the greatest assault on voting rights since Jim Crow.”

There’s just one problem: The penalty clause isn’t being enforced — and never has been. . .

Analysis by a data scientist cited in the lawsuit found that seven states — Arizona, Maryland, Mississippi, New Jersey, Ohio, Tennessee and Virginia — would gain at least one seat each if the Census Bureau fully applied the penalty. . .

Still, simply because the provision may be difficult to interpret doesn’t mean it can easily be ignored. It’s still a piece of the Constitution, even if it’s been gathering dust. Meanwhile, voting rights for millions of Americans — particularly people of color — are increasingly imperiled.

It will be months, perhaps years, before Pettinato’s lawsuit is finally resolved. But for all the hurdles facing him, he remains enthusiastic.

“I just feel very lucky to be able to bring this case,” Pettinato says, “and to try to revive a part of the Constitution that’s laid dormant for 150 years.”'

https://www.politico.com/news/magazine/2022/07/27/penalty-clause-voting-rights-00046973?