With the exception of the early 1960s, the right to vote in the United States is arguably more embattled today than at any time since Reconstruction. In a quick succession of rulings in October, voter-ID laws, residency requirements, and the curtailment of early voting hours and same-day registration were upheld or overturned in states across the country. The Supreme Court permitted restrictions in some states for the midterm elections and prohibited them in others, but it refused to rule on the merits of the laws.
Amid the turmoil, voting-rights advocates cheered every small victory, however local or tenuous, and rued the many losses. The movement is still staggering from the body blow of Shelby County v. Holder (2013), in which the Supreme Court struck down a key provision of the Voting Rights Act of 1965—the formula that determined which state and local governments had to submit proposed election-law changes to the federal government for advance approval.
The strategy at this point is still unclear. Some favor a constitutional amendment explicitly granting the right to vote. Others support the Voting Rights Amendment Act, which would repair the damage inflicted by Shelby County and create additional protections. Both are worthy initiatives, necessary components of a strategy to protect and expand the right to vote.
But an important tool remains unused, all but forgotten in a dark and dusty corner of the shed. Dating back to Reconstruction, it has the great merit of being already enshrined in the Constitution. According to Section 2 of the Fourteenth Amendment, any state that denies or abridges the right to vote for any reason must have its congressional representation reduced in proportion to the number of citizens it disenfranchises. Arguably the most radical clause in the Constitution, it was designed to remake the government and the country. It has never been enforced.
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On December 4, 1865, the thirty-ninth Congress assembled for the first time. Its members had been elected more than a year earlier—such a long delay was a custom of the time—and both chambers were controlled by Northern Republicans by a ratio of nearly three to one. No senators or representatives from the recently rebellious states had yet been readmitted. Governed by appointees of President Andrew Johnson, a Tennessee Democrat who had joined Lincoln’s Republican ticket in a gesture of unity, the vanquished Southern states were hoping to rejoin the Union as quickly as possible.
Congressional Republicans, goaded by the radical Thaddeus Stevens, had many reasons to oppose quick re-entry. For one thing, they feared that a too-speedy reconciliation would allow the unreconstructed “Slave Power” to avoid precisely those changes that had become, after the Emancipation Proclamation, the whole point of the war. The Nation’s editors noted such budding intransigence in the magazine’s very first issue, published July 6, 1865:
From every subjugated State…there comes very general testimony that the abolition of slavery, which was the consummation of the war, is to be resisted and thwarted by the whites in every possible way. Enraged that the object for which they courted poverty, famine, exile, and death, has been for ever removed from their ambitious machinations, they seem determined that the new order of things shall not be made pleasant.