'IN WHOM IS THE RIGHT OF SUFFRAGE?': THE RECONSTRUCTION ACTS AS SOURCES OF CONSTITUTIONAL MEANING.

AuthorTolson, Franita

INTRODUCTION 2041 I. A PROMISE UNFULFILLED?-. SECTION 2, THE GUARANTEE CLAUSE, AND THE GHOST OF MADISON'S CONSTITUTION 2046 II. IGNORING THE SECOND FOUNDING: SECTION 2 AND THE GUARANTEE CLAUSE IN RECENT SUPREME COURT CASELAW 2050 III. THE RECONSTRUCTION ACTS AS A BLUEPRINT FOR REPUBLICAN GOVERNMENT: FELON DISENFRANCHISEMENT AND THE CONSTITUTIONALITY OF FLORIDA'S AMENDMENT 4 2054 CONCLUSION 2058 INTRODUCTION

The Civil War ended in the spring of 1865 and attention promptly turned to escalating the process of reconstructing the South. Reconstruction, which involved dismantling the planter-dominated slaveocracies and turning these political communities into multiracial, egalitarian societies centered around civil and political rights, fundamentally changed the nature of our system of federalism, as well as the universe of rights to which individuals were now entitled.

Much of the recent legal scholarship on voting rights focuses on the main pillars of Reconstruction, namely the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments, as well as statutes passed pursuant to these provisions, in assessing the crisis of democracy that the country now faces. (2) Unsurprisingly, the U.S. Supreme Court has dictated the terms of this debate, gutting the Warren Court jurisprudence that read these Amendments expansively at the height of the Civil Rights Movement. (3) In Shelby County v. Holder, for example, the Court held that Congress' enforcement powers under the Fourteenth and Fifteenth Amendments do not extend to reauthorizing certain provisions of the Voting Rights Act absent substantial evidence of intentional racial discrimination in voting. By imposing conditions on certain jurisdictions with a history of voting rights violations, but not states with similarly dismal records, the Act violated the Constitution's principle that all states have equal standing as sovereigns.

Shelby County stands as one example of the ways in which the scope and meaning of the Reconstruction Amendments of the Roberts Court bear little resemblance to their 1960s counterparts. (4) The attempt by some states to circumscribe the right to vote and suppress turnout in the wake of Shelby County is yet another marker of why the past--and the true meaning of the Amendments--remains important for clarifying the protections to which the right to vote is entitled.

This Essay seeks to correct this oversight by looking to the Reconstruction Acts, which readmitted the former confederate states into the union, (5) as a source of constitutional meaning. These statutes inform not only the right to vote under the Reconstruction Amendments, and in particular, Section 2 of the Fourteenth Amendment, (6) but also the requirement of republican government embraced by the Guarantee Clause of Article IV, Section 4. (7) Section 2 and the Guarantee Clause remain unenforced and under-enforced constitutional texts, respectively, but as this Essay will show, their principles are relevant to the Court's jurisprudence in areas such as redistricting and felon disenfranchisement. Despite the fact that Congress enacted these statutes contemporaneously with the ratification of the Fourteenth and Fifteenth Amendments (8) and, importantly, at a time when Congress aggressively enforced the Guarantee Clause, these provisions are overlooked because scholars have long viewed their terms as legally unenforceable. (9)

As this Essay will show, this view is mistaken. The Reconstruction Acts memorialize those aspects of Reconstruction that make it a second founding, (10) by requiring that each of the former confederate states have "framed constitutions of State government which are republican" (11) and, in the process, updating the substantive scope of the Guarantee Clause. In 1787, it was unclear whether the majoritarianism that James Madison and other founding fathers advocated as central to republicanism, and embraced by the Guarantee Clause, had to reflect either the will of a majority of the people of the state or a majority of its voters. (12) During the Antebellum period, Congress assessed whether territories seeking admission as new states were republican in form, yet slavery politics dictated the rigor with which Congress policed these political systems. (13) By 1868, Congress' position on this issue was clear--majoritarianism had to reflect the will of a majority of the voters within the state, and Congress took an active role in defining the parameters of this community. The readmission of the former Confederate states was the first time that Congress clearly articulated the requirements of republicanism, free from the albatross of slavery and in light of the suffrage requirements of the new Amendments. In the post-Civil War era, majoritarianism now required that civil and political rights be extended to all eligible individuals on a nondiscriminatory basis.

Notably, these statutes imposed limitations on southern states with respect to the voting rights of their citizens as a condition of reentering the union, shedding light on the reach of Section 2 of the Fourteenth Amendment and, importantly, the universe of crimes for which one can be disenfranchised consistent with its terms. Section 2 allows Congress to reduce a state's delegation in the House of Representatives by removing disfranchised voters from the basis of population used for apportionment, but permits states to disenfranchise "for participation in rebellion or other crime." (14) Clarifying Section 2, the Acts readmitting Arkansas, North Carolina, South Carolina, Louisiana, Georgia, Alabama, Florida, Virginia, and Mississippi all contain similar language specifying that these states can disenfranchise their residents only for "punishment for such crimes as are now felonies at common law" rather than the hundreds of disenfranchising offenses that currently exist in these jurisdictions. (15)

Even if unenforceable on their own terms, the Reconstruction Acts have significant implications for how we conceive of the right to vote under the U.S. Constitution today, in the midst of some of the most contentious voting wars in decades. (16) Importantly, when states in the former Confederacy impermissibly disenfranchise their residents contrary to these statutes, this disenfranchisement violates the Guarantee Clause and Section 2 of the Fourteenth Amendment.17 The Court has ignored Section 2, the Guarantee Clause, and related federal statutes like the Reconstruction Acts in assessing the scope of congressional power to address these violations, a question that was front and center in the Shelby County case. (18) Turning to the recent debate in Florida over the re-enfranchisement of individuals with felony convictions, this Essay concludes that Florida's felon disenfranchisement regime, which disenfranchises for crimes well beyond the felonies at common law permitted by the Reconstruction Acts, constitute an abridgment of the right to vote and renders Florida's government unrepublican in form. Because Congress' enforcement authority empowers it to prevent such abridgments, that body has substantial authority, pursuant to Section 5 of the Fourteenth Amendment, to remedy this disenfranchisement through either reduced representation or other appropriate penalties. (19)

  1. A PROMISE UNFULFILLED?: SECTION 2, THE GUARANTEE CLAUSE, AND THE GHOST OF MADISON'S CONSTITUTION

    The ratification of the U.S. Constitution in 1789 was not the only period in which states entered the Union, with each successive admission triggering a debate about the requirements of republicanism, but this fact is not readily apparent from the Shelby County v. Holder decision. In Shelby County, the Supreme Court invalidated Section 4(b) of the Voting Rights Act of 1965, arguably one of the most successful pieces of civil rights legislation of the twentieth century and one of the crown jewels of the Civil Rights Movement of the 1960s. (20) In striking down Section 4(b), which determined those jurisdictions required to preclear any changes to their voting laws with the federal government before those changes could go into effect, the Court opined that the racial discrimination that permeated the 1960s and earlier decades was a relic of the past. (21) Instead, the strides made with respect to racial equality, as illustrated by the parity that African Americans enjoyed with whites in voter registration and turnout, meant that previously covered jurisdictions had returned to their pre-1965 status as sovereigns with equal rights and authority as their non-covered counterparts over voting and elections.

    The Court's assessment of state authority over elections is based on its view that the Constitution of 1789 is the baseline from which state sovereignty should be measured. According to the Court, "[n]ot only do States retain sovereignty under the Constitution, there is also a 'fundamental principle of equal sovereignty' among the States" that is "essential to the harmonious operation of the scheme upon which the Republic was organized." (22) In criticizing the Voting Rights Act for applying to "only nine States (and several additional counties)" "despite the tradition of equal sovereignty," the majority ignored that Reconstruction--a period in which there was substantial constitutional and statutory change to the very structure of our government-altered "the scheme upon which the Republic was organized." (23)

    Given the Shelby County Court's myopic focus on 1789, the fact that the Reconstruction Acts have not featured more prominently in constitutional interpretation is not surprising. Reconstruction fundamentally transformed our system of federalism, resulting in a more active federal presence in which Congress was willing to aggregate its powers to protect voting rights. The goal of remaking southern governments and expanding their electorates was a multi-year, multi-step process, involving numerous pieces of legislation that all shed light...

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