Reconstruction, Felon Disenfranchisement and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?

Abstract

Designed to promote African American suffrage, the second sentence of Section 2 of the Fourteenth Amendment reduces congressional representation of states disenfranchising male citizens over 21 who have not been convicted of crimes. During Jim Crow, many former Confederate states denied the vote to African Americans, yet none ever lost a seat in Congress under Section 2. This paper proposes that one reason Section 2 was never used is because it was repealed by the Fifteenth Amendment. The fundamental inconsistency between the provisions is that Section 2 recognized state authority to deny the vote to African Americans while the Fifteenth Amendment removed that power. As a matter of remedy, Section 2 reduced congressional representation and allowed the discrimination to continue, while the Fifteenth Amendment employed the quite different remedy of actually allowing African Americans to cast ballots. Section 2 cannot be an alternative remedy to the Fifteenth Amendment; a court finding unconstitutional disenfranchisement has no discretion to allow it to continue if it reduces the offending state's basis of representation in Congress. Section 2 cannot offer a concurrent remedy; enfranchisement plus reduction of the basis of representation would reward the discriminated-against group with a diluted vote. Section 2 cannot be recast as a provisional remedy, because Congress has power under the Fourteenth and Fifteenth Amendments to regulate, enjoin and invalidate elections in ways beyond Section 2, without Section 2's built-in limitations, exceptions and restrictions. In sum, the Fifteenth Amendment covers more elections and persons than Section 2 of the Fourteenth, and offers stronger remedies. That the Fifteenth Amendment does everything Section 2 could do and more both demonstrates that Section 2 was impliedly repealed and explains why it was never invoked. (Section 2 could survive if it applied to non-racial restrictions on the franchise, but the Supreme Court cases rejecting this construction are correct. One reason to read Section 2 narrowly in spite of its broad language: The Constitution is traditionally discreet about race; indeed, the apportionment provision of the original Constitution replaced by Section 2 referred to slaves as all other persons). Although never enforced, Section 2 is tremendously important to modern voting rights law. Section 2's penalty is inapplicable to disenfranchisement based on commission of rebellion or other crime. In Richardson v. Ramirez in 1974, the Supreme Court declined to apply strict scrutiny under the Equal Protection Clause of Section 1. The Court did not use Section 2 simply as evidence of the views of the states and Congress; this would have been insufficient because strict scrutiny had invalidated almost all state voting restrictions, including ones widely accepted when the Fourteenth Amendment was passed. Instead, the Court held that Section 2 textually authorized felon disenfranchisement, obviating the possibility of considering its validity under Section 1. This paper proposes that Richardson should be reexamined, because it rests on a provision no longer in force.