The Apportionment of Representatives Clause

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.

—Gerard N. Magliocca

Introduction

Section Two of the Fourteenth Amendment was written to address representation and voting issues following the abolition of slavery. In 1866, because there was insufficient political support for the direct extension of suffrage to the freedmen, the Joint Committee on Reconstruction proposed a constitutional amendment to penalize states that deny or abridge the voting rights of too many male adult citizens. These states would suffer a proportionate representation penalty in the House of Representatives and, by extension, in the Electoral College. But states could still disenfranchise those guilty of participation in rebellion or other crime. This penalty provision proved unworkable and was never enforced. Today, Section Two is the constitutional basis for state laws that disenfranchise convicted felons.¹

Drafting Section 2

Under Article I, Section 2, representation in the House of Representatives was apportioned according to the free population of the states (excluding Indians not taxed) and “three-fifths of all other Persons.” (See Essay No. 9.) The Thirteenth Amendment, which abolished slavery, eliminated the purpose of the Three-Fifths Clause. (See Essay No. 191.) As a consequence, formerly Confederate states would get more representatives in the House because their freed slaves would now be fully counted, and those states did not intend to let the freedmen vote.

Senator Jacob Howard of Michigan addressed this problem in his speech introducing the Joint Committee’s proposed Fourteenth Amendment: “Shall the recently slaveholding States, while they exclude from the ballot the whole of their black population, be entitled to include the whole of that population in the basis of their representation?” And would those states “obtain an advantage [in representation] which they did not possess before the rebellion and emancipation?”² Republicans in Congress agreed that this unjust result could not stand, but nevertheless struggled to craft an effective remedy that did not involve some guarantee of black voting rights. Representative John Bingham of Ohio, for example, “support[ed] the proposed amendment” because he “believe[d] it essential and attainable” but did “not dare to say that it could not be improved.”³

Both the Joint Committee on Recon-struction and Congress considered multiple formulations of what became the penalty provision. One proposal specified that when the “elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation.”⁴ In other words, rather than being counted as three-fifths of a person, freedmen would not be counted at all for purposes of representation. The Senate rejected this language.

At the time, all states excluded black women from voting, and there was no groundswell for women’s suffrage.⁵ The Joint Committee then revised its proposal to limit the category of presumptive voters to “male[s].”⁶ This was the first and only time that the Constitution used that word. The new proposal further limited the representation baseline to male adult citizens.⁷ Male aliens and minors would not be included. At the time, some states allowed certain aliens to vote, but under this proposal, these states would gain no representation advantage from having that broader suffrage rule.⁸ This second formulation of Section 2 referred simply to restrictions on “the elective franchise.” Later, the Senate replaced this phrase with “the right to vote” and then specified the federal and state elections that were covered.⁹

Four other aspects of the final text merit comment. First, there was a reference to elections for presidential and vice presidential electors. By 1868, almost all states used that method rather than direct legislative appointment to choose their electors.¹⁰ Were state legislatures to select their electors, their citizens would not be able to cast a vote and the representation penalty would apply. Second, elections for state judicial officers were included. After the Civil War, the election of state judges was a widespread, though not universal, practice.¹¹

Third, Section 2 made exceptions for participation in rebellion or other crimes. Some states, including South Carolina, disenfranchised some former Confederates without fear of suffering a penalty.¹² Additionally, twenty-nine states permitted or required felon disenfranchisement.¹³ Thus, Section 2 gave states an incentive to extend the ballot to loyal black men and withdraw it from disloyal white men without requiring either action.

Fourth, the proposal did not specify how the penalty would be enforced. Senator Jacob Howard of Michigan pinpointed this issue in 1866. He said Section 2 gave the census takers “a rule which is so uncertain, so difficult of practical application, as not only greatly to increase the expenses of ascertaining the basis of representation by Congress in procuring the necessary information, but in many cases the returns must be so inaccurate and unreliable as to be next to worthless.”¹⁴ Howard’s prediction proved accurate.

Implementing Section 2

The 1870 Census attempted to gather the information that Section 2 demanded.¹⁵ Every man otherwise eligible to vote was asked whether his right to vote was denied or abridged except for participation in rebellion or other crime. The Secretary of the Interior was tasked with conducting the census but dismissed the self-reported data as unreliable because it could not be independently verified.¹⁶ There also was no standard for what “denied or abridged” meant for voting rights. Finally, the Census did not ask which elections someone was unable to vote in or whether they were held before or after 1868.

At the time, Rhode Island imposed a $131 real property ownership requirement to vote. As a result, the state should have lost a seat in the 1872 reapportionment,¹⁷ but Congress declined to enforce the penalty against Rhode Island. Members had doubts about the data, were uncertain about which state should gain the seat that Rhode Island would lose, and perhaps felt that enforcing Section 2 against a northern state would be unpopular.

No future census attempted to gather information pertaining to Section 2. The Fifteenth Amendment, ratified in 1870, provided a less cumbersome method for addressing racial discrimination in voting, but that provision went unenforced for nearly a century. Even today, the administrative obstacles to enforcing the penalty provision through the Census are sizeable.

Modern Relevance of Section 2

In the modern era, Congress made few serious efforts to revive Section 2. One of the ten demands made as part of Martin Luther King Jr.’s 1963 March on Washington for Jobs and Freedom was “[e]nforcement of the Fourteenth Amendment—reducing Congressional representation of states where citizens are disfranchised.”¹⁸ Congress took no action.

Section 2 does provide support for state statutes that disenfranchise ex-felons. Richardson v. Ramirez (1974) held that such a statute did not violate the Equal Protection Clause.¹⁹ The U.S. Supreme Court relied in part on the fact that Section 2 accepted disenfranchisement for participation in “rebellion or other crime.” The lower courts have read Ramirez to hold that Section 2 “expressly allows States to disenfranchise criminals without having their representation reduced in Congress.”²⁰ Today, nearly all states impose some form of felon disenfranchisement,²¹ but there is no federal disenfranchisement statute.

Open Questions

• What does it mean for the “right to vote” to be “denied” or “abridged in any way”?²²

1. Gerard N. Magliocca, Our Unconstitutional Reappor-tionment Process, 86 Geo. Wash. L. Rev. 774 (2018). ↩︎
2. Cong. Globe, 39th Cong., 1st Sess. 2766 (1866). ↩︎
3. Id. at 431. ↩︎
4. The Journal of the Joint Committee of Fifteen on Reconstruction 53 (Benjamin B. Kendrick ed., 1914). ↩︎
5. Earl M. Maltz, The Forgotten Provision of the Fourteenth Amendment: Section 2 and the Evolution of American Democracy, 76 La. L. Rev. 166–68 (2015). ↩︎
6. Joint Committee Journal, supra at 44. ↩︎
7. Id. ↩︎
8. Minn. Const. of 1857, art. VII; Ore. Const. of 1857, art. II, § 2. ↩︎
9. Maltz, supra at 176. ↩︎
10. McPherson v. Blacker, 146 U.S. 1, 32 (1892). ↩︎
11. Republican Party of Minn. v. White, 536 U.S. 765, 785 (2002). ↩︎
12. S.C. Const. of 1868, art. VIII. ↩︎
13. Richardson v. Ramirez, 418 U.S. 24, 48 & n.14 (1974). ↩︎
14. Cong. Globe, 39th Cong., 1st Sess. 3039 (1866). ↩︎
15. H.R. Rep. No. 41-3 (1870). ↩︎
16. Cong. Globe, 42nd Cong., 2d Sess. 66 (1871). ↩︎
17. Id. at 82. ↩︎
18. March on Washington for Jobs and Freedom: Lincoln Memorial Program 3 (Aug. 28, 1963), https://perma.cc/G3QQ-SU7D. ↩︎
19. 418 U.S. 24 (1974) ↩︎
20. Jones v. Governor of Fla., 975 F.3d 1016, 1029 (11th Cir. 2020) (Pryor, C.J.). ↩︎
21. Id. ↩︎
22. Franita Tolson, What is Abridgment?: A Critique of Two Section Twos, 67 Ala. L. Rev. 433 (2016). ↩︎