Remedial Equilibration and the Right to Vote Under Section 2 of the Fourteenth Amendment

64 Pages Posted: 27 Mar 2015 Last revised: 24 Sep 2016

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: March 25, 2015

Abstract

The modern “voting wars” involve repeated legal challenges alleging that procedures aimed at protecting the electoral process, such as proof-of-citizenship requirements for registration and voter identification laws, violate the fundamental constitutional “right to vote.” In adjudicating such cases, courts make effectively subjective judgments about whether the challenged statutes or regulations make voting too burdensome.

Section 2 of the Fourteenth Amendment offers critical, and previously overlooked, insight into the scope of the right to vote. It imposes a uniquely severe penalty — reduction in representation in the House of Representatives and Electoral College — when that right is violated or abridged. "Remedial deterrence,” a crucial component of the broader theory of remedial equilibration, teaches that courts take into account the severity of the remedy for violating a legal provision when determining that provision’s scope. Stripping a state of its seats in Congress and votes in the Electoral College is a uniquely severe penalty, effectively nullifying the results of one or more elections, disenfranchising the people who voted for the ejected representatives, diluting the vote of each member of the state’s electorate, and potentially even changing control of Congress or the outcome of a presidential election.

For such a dramatic penalty to be appropriate, a State’s actions would have to be especially egregious: direct disenfranchisement of certain disfavored groups of people. Facially neutral registration or voting procedures with which a person must comply in order to vote are insufficient to meet this highly demanding standard. This remedial deterrence interpretation of § 2 is consistent with both the Fourteenth Amendment’s legislative history and Congress’ contemporaneous interpretation of that provision during its first attempt at enforcement. All of the state laws and constitutional provisions that were identified in the 41st Congress as violating § 2 imposed additional qualifications for voting by disenfranchising entire groups of people, such as the poor, the illiterate, or racial minorities, due to their purportedly undesirable traits. A remedial deterrence interpretation of § 2 provides an objective and constitutionally-based approach for determining whether various election laws violate the Fourteenth Amendment right to vote.

Keywords: Fourteenth Amendment, Due Process, Equal Protection, Section 2, Voting, Voting Rights, Voter Identification, Originalism, Remedial Equilibration, Remedies, Remedial Deterrence

Suggested Citation

Morley, Michael, Remedial Equilibration and the Right to Vote Under Section 2 of the Fourteenth Amendment (March 25, 2015). 2015 U. Chi. Legal F. 279. Available at SSRN: https://ssrn.com/abstract=2585238

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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