Another Such Victory? Term Limits, Section 2 of the Fourteenth Amendment, and the Right to the Representation

Abstract

If proponents of state-imposed term limits score a victory in the term limit debate, the victory will likely come with extraordinary costs. Section 2 of the Fourteenth Amendment provides that if a state denies or abridges the right to vote, the state may be required to forfeit Congressional representatives and electoral votes. Opponents of state-imposed term limits claim the only qualifications to run for public office are those listed in the Qualifications Clause of Article 1. However, term limits can be viewed more as requirements for the "manner" in which a candidate is elected, rather than a qualification. Proponents of term-limits are hopeful Section 2 will give them license to implement term limits under the auspices of a state’s authority to manage elections; although, imposing term limits may come with a high cost. While the authors of Section 2 might have been primarily concerned with disenfranchisement on the basis of race or color, the provisions of Section 2 could have other applications. Term limits do not bar a citizen’s access to the polls, but they do restrict the citizen’s choice of candidates. The Supreme Court has characterized limits on the choice of candidates as impairments on voters’ ability to express political preferences. If such limitations are viewed as abridgements, states may be penalized. Therefore, enacting state-imposed term limits may lead to a Pyrrhic victory of sorts. Regardless, it will be for states to decide whether to heed Section 2’s warning as they did at time of the Fourteenth Amendment’s adoption.

Keywords: Suffrage, right to vote, Section 2, disenfranchisement, Pyrrhic victory, Fourteenth Amendment, Qualifications clause, Article 1, Constitution, Constitutional, Term limits, States, Powell v. McCormack, 395 U.S. 486 (1969)

JEL Classification: K00