The Two Section Twos

The Protection Against Racial Gerrymandering in Section 2 of the Voting Rights Act is Constitutional. Just Read Section 2 of the 14th Amendment.

(*a version of this article appears on The Refounding, the Medium newletter of the 14th Amendment Center for Law & Democracy)

On Wednesday morning, the Supreme Court will hear oral arguments on the question of whether Section 2 of the Voting Rights Act violates the 14^th and 15^th Amendments to the Constitution.

The question raises a brazen proposition. Does a core provision of the most consequential of all civil rights statutes conflict with the constitutional amendments ratified to ensure Black citizenship rights?

It’s an odd question, to say the least. But this is an odd Court. After briefing and hearing oral argument on the merits of the case last Spring, the Term closed without an opinion in Louisiana v. Callais,^[1] the challenge to racial gerrymandering in Louisiana’s 2020 congressional redistricting map. Then on August 1^st, the Court issued an order^[2] asking for briefing on the question of Section 2’s constitutionality. Coming 13 years after the Court’s decision in Shelby County v. Holder^[3] hollowed out the preclearance provision of Section 5 of the Voting Rights Act and unleashed a wave of voter suppression laws across the nation,^[4] the Court’s interest in teeing up a direct challenge to Section 2 is ominous, to say the least. But in some ways, the challenge to the constitutionality of Section 2 rests on even shakier grounds than the Court’s decision to strike down the preclearance formula of Section 5.

The 14^th and 15^th Amendments to the Constitution, ratified during Reconstruction, were designed to protect and ensure the full citizenship of Black people, to eliminate caste as a marker of citizenship, and to protect both the nation and its citizens against usurpation of power by states. The 14^th Amendment guaranteed birthright citizenship, due process, and equal protection of laws.^[5] The 15^th Amendment outlawed state laws and practices that denied the right to vote based on race or color.^[6] Both amendments contain a provision that we call the Enforcement Clauses. In the 14^th Amendment, it reads: “the Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The enforcement provisions are a critical part of the structure of the 14^th and 15^th Amendments. They are a powerful expression of the framers’ post-Civil War understanding of the limits of federalism. The framers knew that despite the Confederacy’s defeat, most whites in southern states were not prepared to accept Black people as equal citizens. White southerners deemed racial subordination as the natural order of things. They fully expected to resume their domination over the Black population.

The Republicans in Congress in the early days of Reconstruction had seen the arrogance of former Confederates who wished to be restored to power, despite their disloyalty to the Union.^[7] The enactment of Black Codes – vagrancy laws that allowed for the arrest and imprisonment of Black people for minor infractions, including the crime of being unable to prove that they were employed by a white person – demonstrated the intention of southern whites. Once imprisoned, Black people convicted pursuant to those vagrancy laws could be “hired out” to white plantation owners and other whites looking for cheap and easily exploitable labor.

Physical brutality against Black people in southern states was rampant during this period, and white southerners were merely biding their time until federal troops would leave the South,^[8] and thus leave them to deal with Black people as they wished.

In sum, the framers of the Reconstruction Amendments understood the states could not be trusted to protect the citizenship rights of formerly enslaved Black people. Black enfranchisement was a direct threat to white political supremacy, especially in those counties where the Black population outnumbered that of whites. Keeping Black people politically disenfranchised was the key to reestablishing and maintaining white supremacy.

Although the 15^th Amendment speaks most directly to this concern, the 14^th does as well. Section 2 of the 14^th Amendment is a powerful and too-often-overlooked provision that demonstrates the framers’ clear and explicit effort to ensure Black political representation.

In drafting Section 2 of the 14th Amendment, the Framers undertook what historian Mark Graber correctly describes as “apportionment reform”^[9] — a task vital to the project of re-founding our republic after Emancipation.

First, the Framers overturned the odious “three-fifths Compromise” that was the devastating handiwork of the Framers of the 1789 Constitution. That provision in Article I, Section 2^[10] allowed white southerners to augment their population numbers, and thus their representation in Congress, by counting their enslaved population, albeit fractionally. The “three-fifths compromise” betrayed the spirit of the Declaration of Independence, constitutionalized the brand of inhumanity on the Black population, and rewarded white southerners with political power premised on the population they held in bondage.

The 14^th Amendment overturned the odious political measurement of human beings in fractions.

The first sentence of Section 2 of the 14^th Amendment reversed the “three-fifths compromise,” decreeing that, “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 Section 2 did even more.

The question of Black enfranchisement hung over the project of the 14^th Amendment from the earliest days after the Civil War. In 1865, Frederick Douglass wrote What the Black Man Wants^[11] - a passionate plea for Black voting rights. He predicted that without political power, Black people would simply have called down “not only upon ourselves, but upon our children’s children, the deadly hate of the entire Southern people,” with no means to protect themselves. For that reason, Douglass warned that “this war shall not cease until every freedman in the South has the right to vote.” Douglass was particularly exercised by the notion that loyal Black men would be denied the vote, while white former Confederates, who had been disloyal to the Union, would enjoy full voting rights.

Word that the draft of the 14^th Amendment failed to include an affirmative right to vote for Black people was met with widespread condemnation among abolitionists and activists. Radical Republicans in Congress, including Rep. Thaddeus Stevens, among the most passionate congressional champions of full Black citizenship and voting, conceded that the Amendment “fell short.” Senator Charles Sumner, a leading congressional abolitionist and framer of the Reconstruction Amendments, came to regard the 14th Amendment as “an installment, not a finality.”

No affirmative right to vote was included in the 14^th Amendment. But the Amendment was not silent about the importance of Black political representation. The framers drafted a provision that they hoped would discourage southern whites from disenfranchising Black men. In Section 2 of the 14^th Amendment, the framers set forth a regime that would exact political punishment for southern states that denied or interfered with Black voting.

The punishment scheme was simple. Southern states risked losing seats in Congress if they denied or abridged voting for eligible Black men. In fact, the representation count for states engaged in racial disenfranchisement would be reduced in proportion to the number of Black men they disenfranchised. Section 2 reads:

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.

There was no question that the reference to men meant Black men.

Southerners understood the threat. They objected to the 14th Amendment’s guarantee of equality, but they also objected to the 14th Amendment on the grounds that it contemplated a “loss of representation because of denying Blacks the right to vote.”

The compromise language was passed and ratified.

Obviously, the hope that potential for representational punishment would deter attacks on Black voting proved naïve. After a brief period when Black when voted in plentiful numbers and elected a record number of Black representatives to Congress and to other offices, the white backlash – marked by intense violence – successfully disenfranchised Black people for nearly 100 years. Frederick Douglass and other Black abolitionists were right.

When, a century later after courageous demand by civil rights activists, Congress exercised its enforcement power to pass the Voting Rights Act, its authority rested not only on the explicit guarantees of the 15^th Amendment but also on the 14th Amendment’s guarantee of equal protection. It did so, undergirded by the clear intentions of the apportionment clause of Section 2 of the 14^th Amendment.

In fact, the use of the Voting Rights Act to confront congressional racial gerrymanders, as in Louisiana v. Callais, is a particularly appropriate expression of congressional enforcement power under the 14^th Amendment because “representatives in Congress” are among the explicitly enumerated offices identified in the punishment clause.

Should the Supreme Court use the Louisiana racial gerrymandering case to usurp Congress’s express enforcement power to protect Black voting strength, it will constitute a devastating and dastardly usurpation of congressional power outlined in the 14^th Amendment.

Such a decision should be met with immediate field hearings convened by voting rights advocacy groups in states with racial gerrymanders, followed by congressional hearings - all focused on charting a path to quick implementation of the punishment scheme of Section 2 – reducing the size of the congressional delegations of those states that abridge the rightful measure of political representation for Black people.

Wednesday’s argument will reveal more about what the conservatives are imagining might be the basis for striking down or limiting the reach of Section 2. But we should be clear that Section 2 of the Voting Rights Act is firmly grounded in both the 14^th and 15^th Amendments, and any limitations on its reach, or on the duration of its power, fall into the exclusive power of Congress, not the Supreme Court.

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^[1] https://www.scotusblog.com/2025/10/supreme-court-to-hear-arguments-in-pivotal-case-on-the-voting-rights-act/

^[2] https://www.supremecourt.gov/orders/courtorders/080125zr_i4dk.pdf

^[3] https://supreme.justia.com/cases/federal/us/570/529/

^[4] https://www.brennancenter.org/our-work/research-reports/effects-shelby-county-v-holder-voting-rights-act

^[5] https://constitution.congress.gov/constitution/amendment-14/

^[6] https://constitution.congress.gov/constitution/amendment-15/

^[7] Joint Committee on Reconstruction (1866), at p. 16, https://www.senate.gov/artandhistory/history/resources/pdf/JointCommitteeonReconstruction1866.pdf

^[8] Carl Schurz, Report on Conditions of the South (1865).

^[9] Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War, (University Press of Kansas 2023) at 132.

^[10] https://constitution.congress.gov/constitution/article-1/

^[11] https://blackpast.org/african-american-history/1865-frederick-douglass-what-black-man-wants/