What is Abridgment?: A Critique of Two Section Twos

51 Pages Posted: 16 Aug 2015 Last revised: 12 Oct 2016

Date Written: 2016

Abstract

For over a century, Section 2 of the Fourteenth Amendment has been a dead letter, but recent challenges to voting rights demand that we resurrect this long forgotten provision. The thesis of this Article is that Section 2, which allows Congress to reduce a state’s delegation in the House of Representatives if the state abridges the right to vote, gives Congress the authority to address virtually any abridgment of the ballot through its Section 5 enforcement power. Specifically, this Article contends that Section 2, with its broad language unencumbered by references to race or color, provides constitutional justification for section 2 of the Voting Rights Act, the validity of which has come under fire in recent years. Section 2 of the Voting Rights Act forbids any voting “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Critics argue that the statute’s use of race-conscious remedies and its focus on the racially discriminatory effect of various state laws unduly infringes the states’ sovereignty over elections. To avoid potential constitutional problems, these critics contend that the statute should be limited to only those instances in which states act with discriminatory intent.

As this Article shows, the search for intent is not only futile in this context but unnecessary. Section 2 is constitutionally sound because Section 2 of the Fourteenth Amendment validates any statutory scheme that prevents abridgment of the right to vote, regardless of the presence or absence of discriminatory intent. This Article concludes that an effects-only interpretation of section 2 of the Voting Rights Act is consistent with the broad authority that Section 2 of the Fourteenth Amendment grants Congress to regulate and protect the right to vote.

Keywords: Fourteenth Amendment, Voting Rights Act, Intentional Discrimination

Suggested Citation

Tolson, Franita, What is Abridgment?: A Critique of Two Section Twos (2016). Alabama Law Review, Vol. 67, No. 2, 2016; FSU College of Law, Public Law Research Paper No. 767. Available at SSRN: https://ssrn.com/abstract=2644320

Franita Tolson (Contact Author)

USC Gould School of Law ( email )

699 Exposition Blvd
Los Angeles, CA California 90089
United States
2137407683 (Phone)

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