Can the 14th Amendment be Used to Reform the Electoral College?
The 14th Amendment is most commonly known for its Section 1, or the Equal Protection Clause which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Arguably, though, it is Section 2 that needs to take center stage.
Section 2 provides consequences for voter suppression that are not provided by the 15th Amendment or the Voting Rights Act. These consequences involve punishing states that participate in the practice of voter suppression by eliminating Congressional representation in proportional numbers to the amount of people suppressed. This, in turn, could potentially alter the number of electoral votes the state is allowed to case in a Presidential election.
Section 2 of the 14th Amendment reads:
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, 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.
Enforcement of this law could have devastating consequences for the Republican Party. According to Constitutional law, if the number of Congressional representatives changes, the number of electoral college representatives changes.
Article 2 Section 1 of the Constitution dictates:
Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
North Carolina has 10.3 million people. 2.3 million are black. 300,000 alone were denied the right to vote because of strict voter ID laws that “target African Americans with surgical precision.” Millions more were suppressed in this attempt to disenfranchise black voters.
If Section 2 of the 14th Amendment was enforced, North Carolina’s attempts to suppress black voters could result in the loss of both Congressional representatives and more than a couple of electoral votes. Theoretically, similar actions could be taken against states like Georgia, Florida, Alabama, and any state found to be engaging in voter suppression.
If Section 2 of the 14th Amendment is actually enforced, the shape of Congress and the number of electors that will vote in 2020 could change dramatically. And maybe, it should.