The Republican Party is attacking democracy on many fronts, but none so direct as their assault on voting rights. In 2021 alone, 34 laws to restrict ballot access passed in 19 states. Democrats had hoped to pass national voter protection legislation, but were stymied after they failed to reform the filibuster. That doesn’t mean they’re out of options, though. In fact, they have a potential nuclear weapon sitting right there in the Constitution—if they’re willing to use it.
Imagine that Speaker Nancy Pelosi were to declare that several states have violated a clause largely unused and forgotten for 154 years: Section 2 of the Fourteenth Amendment, which mandates that states lose a portion of their congressional delegation if they unduly restrict the right to vote. Sorry, Representative Marjorie Taylor Greene, but Georgia went too far in rolling back voting rights; your state lost a seat in Congress—and it’s yours.
It would be a radical decision, one that some could compare to conservative lawyer John Eastman’s “coup memo” urging Vice President Mike Pence to nullify Electoral College votes. But unlike Eastman’s memo, it would have actual grounding in the text of the Constitution.
Ratified in 1868, the Fourteenth Amendment is the most consequential tweak to the Constitution since the Bill of Rights. The amendment, passed in the heady Reconstruction era following the Civil War, has had wide-ranging consequences on American life. It’s the basis not just for racial justice case law such as Brown v. Board of Education, but also for Gideon v. Wainwright (guarantees your right to a free attorney), Griswold v. Connecticut (made birth control legal for married couples), and Roe v. Wade. “The Fourteenth Amendment has never really been fully utilized to protect the rights of Black people the way Congress intended,” said Eric Foner, one of the preeminent historians of Reconstruction. “But when you get to other kinds of rights, it’s been used in a very vigorous manner.”
Most people know the first clause, the one that guarantees “equal protection of the laws.” But what comes next is often forgotten. It focuses on guaranteeing the right to vote and punishing states that suppress it. The relevant portion states: “[W]hen the right to vote … is denied to any of the male inhabitants of such State … the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
Or in simpler words: States can come up with specious reasons to block people from voting if they wish, but as a consequence, they will lose seats in the House. But the clause has never been successfully used. “One lesson of Section 2,” said Gerard Magliocca, a law professor at Indiana University, “is that even if you craft very specific language and you put it in the Constitution, that doesn’t mean it does anything.”
That doesn’t mean it won’t ever be used, however. Democratic Representative Jamie Raskin told me that he and a handful of colleagues discuss how Section 2—along with Section 3, which bars serving in Congress if you’ve “engaged in insurrection or rebellion”—might be implemented to fight back against anti-democracy forces. “We’re in the fight of our lives for democracy, and we need every tool in the constitutional toolbox on the table,” Raskin said. “This is absolutely something we need to consider.”