Apportionment in House of Representatives

Under Article I, Section 2, Clause 3, the basis of representation of each state in the House of Representatives was determined by adding three-fifths of each state's slave population to its free population. Because slavery (except as punishment for crime) had been abolished by the Thirteenth Amendment, the freed slaves would henceforth be given full weight for purposes of apportionment.[177] This situation was a concern to the Republican leadership of Congress, who worried that it would increase the political power of the former slave states, even as they continued to deny freed slaves the right to vote.[177]

Two solutions were considered:

• Reduce the Congressional representation of the former slave states (for example, by basing representation on the number of legal voters rather than the number of inhabitants)

• Guarantee freed slaves the right to vote

On January 31, 1866, the House of Representatives voted in favor of a proposed constitutional amendment that would reduce a state's representation in the House in proportion to which that state used "race or color" as a basis to deny the right to vote in that state.[177] The amendment failed in the Senate, partly because radical Republicans foresaw that states would be able to use ostensibly race-neutral criteria, such as educational and property qualifications, to disenfranchise the freed slaves without negative consequence. So the amendment was changed to penalize states in which the vote was denied to male citizens over twenty-one for any reason other than participation in crime. Later, the Fifteenth Amendment was adopted to guarantee the right to vote could not be denied based on race or color.

The effect of Section 2 was twofold:

• Although the three-fifths clause was not formally repealed, it was effectively removed from the Constitution. In the words of the Supreme Court in Elk v. Wilkins, Section 2 "abrogated so much of the corresponding clause of the original Constitution as counted only three-fifths of such persons [slaves]".

• It was intended to penalize, by means of reduced Congressional representation, states that withheld the franchise from adult male citizens for any reason other than participation in crime. This, it was hoped, would induce the former slave states to recognize the political rights of the former slaves, without directly forcing them to do so—something that it was thought the states would not accept.[177]

ENFORCEMENT

The first reapportionment after the enactment of the Fourteenth Amendment occurred in 1873, based on the 1870 census. Congress appears to have attempted to enforce the provisions of Section 2, but was unable to identify enough disenfranchised voters to make a difference to any state's representation.[177] In the implementing statute, Congress added a provision stating that

should any state, after the passage of this Act, deny or abridge the right of any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendments to the Constitution, article fourteen, section two, except for participation in rebellion or other crime, the number of Representatives apportioned in this act to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State.[178]

A nearly identical provision remains in federal law to this day.[179]

Despite this legislation, in subsequent reapportionments, no change has ever been made to any state's Congressional representation on the basis of the Amendment.[177] Bonfield, writing in 1960, suggested that "[t]he hot political nature of such proposals has doomed them to failure".[177] Aided by this lack of enforcement, southern states continued to use pretexts to prevent many blacks from voting until the passage of the Voting Rights Act of 1965.[180]

In the Fourth Circuit case of Saunders v. Wilkins (1945),[181] Saunders claimed that Virginia should have its Congressional representation reduced because of its use of a poll tax and other voting restrictions. The plaintiff sued for the right to run for Congress at large in the state, rather than in one of its designated Congressional districts. The lawsuit was dismissed as a political question.[177]

INFLUENCE ON VOTING RIGHTS

Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment,[182] but the Supreme Court acknowledged Section 2 in later decisions.

In Minor v. Happersett (1875), the Supreme Court cited Section 2 as supporting its conclusion that the right to vote was not among the "privileges and immunities of citizenship "protected by Section 1.[183] Women would not achieve equal voting rights throughout the United States until the adoption of Nineteenth Amendment in 1920.

In Richardson v. Ramirez (1974), the Court cited Section 2 as justifying the states disenfranchising felons.[184]

In Hunter v. Underwood (1985), a case involving disenfranchising black misdemeanants, the Supreme Court concluded that the Tenth Amendment cannot save legislation prohibited by the subsequently enacted Fourteenth Amendment. More specifically the Court concluded that laws passed with a discriminatory purpose are not excepted from the operation of the Equal Protection Clause by the "other crime" provision of Section 2. The Court held that Section 2"was not designed to permit the purposeful racial discrimination [...]which otherwise violates [Section] 1 of the Fourteenth Amendment."[185]

CRITICISM

Abolitionist leaders criticized the amendment's failure to specifically prohibit the states from denying people the right to vote on the basis of race.[186]

Section2 protects the right to vote only of adult males, not adult females, making it the only provision of the Constitution to explicitly discriminate on the basis of sex.[34] Section 2 was condemned by women's suffragists, such as Elizabeth Cady Stanton and Susan B. Anthony, who had long seen their cause as linked to that of black rights. The separation of black civil rights from women's civil rights split the two movements for decades.[187]