Counting the Right to Vote in the Next Census: Reviving Section Two of the Fourteenth Amendment

27 Pages Posted: 12 Sep 2015 Last revised: 15 Nov 2015

Date Written: September 10, 2015


The Constitution’s first mention of the “right to vote” has never been used to protect that right. But Section Two of the Fourteenth Amendment should be enforced to protect the right to vote in ways that no other laws can. Section Two would punish states’ congressional apportionment when the right to vote is denied or abridged for a significant number of any of the states’ citizens.

Most scholarship advocating for Section Two’s general enforcement occurred in the 1960s, before the accomplishments of the Voting Rights Act and development of modern Equal Protection Clause jurisprudence. Yet, the Section Two penalty would deter states from passing voter restrictions that are apparently legal today. The history of the Fourteenth Amendment’s passage tells little about how Section Two applies in the 21st Century, but the breadth of Section Two is clear; it affects all states during apportionment and applies to voting restrictions of almost any type. So, Section Two is potentially the broadest voter protection available, as it does not contain the specific limitations of other laws (such as the Fifteenth Amendment, which only protects from voter restrictions made “on account of race or color”). Because Section Two’s penalty occurs during apportionment, it should be enforced by the principle facilitator of the decennial apportionment: the United States Census Bureau, which already has the authority to enforce the section. The Census Bureau may be a ministerial agency, but in following the mandates of the Constitution it should become one of the country’s more important protectors of the right to vote.

Keywords: voting rights, voter identification, Shelby County v. Holder, Shelby County, Fourteenth Amendment, Section Two of the Fourteenth Amendment, Voting Rights Act, voter registration, Section 2, Voting, Census

Suggested Citation

Hurta, Michael, Counting the Right to Vote in the Next Census: Reviving Section Two of the Fourteenth Amendment (September 10, 2015). 94 Texas L. Rev. 147 (2015), Available at SSRN:

Michael Hurta (Contact Author)

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United States

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