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Rachel Maddow once had a segment on her show called "Talk Me Down", where she'd bring on some expert to try to dissuade her from a doomsday perception of some sort.  Tonight I have my own version of this kind of segment….

There appears to be an odd loophole in the Constitution.  Considering the 14th Amendment, it seems that a State could select a small subset of its population and deny it the right to vote, suffering no penalty as long as that subset does not fall into a few specific classes.  I only chose Muslims in Oklahoma as an example because of that state's recent picklebrained attempt to pass a measure banning Sharia law from being used in its courts.  But we could fill in other classes: gays, people over 6-foot-8, people named Albert, yak herders, whatever you want.

Here's the passage I'm talking about:

Section 2. 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.

What that passage explicitly says is that a State may in fact deny a subset of its inhabitants the right to vote, as long as it's willing to accept commensurately smaller representation in the Federal government.  But there's a lot of leeway there.  A state could easily disenfranchise 0.2% of its voting population (such as Muslims in Oklahoma) and still end up with the same whole number of representatives in Congress.  You just pick an especially unpopular but small group, and deny them the right to vote.  Bingo!

It's tempting to say: What about the Equal Protection Clause?:

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.

Doesn't that prevent this sort of thing from happening?  It does not, because of course at that ratification (1868), women, for example, were routinely denied the right to vote, even though they were "citizens" and "persons".  If the Equal Protection Clause were sufficient to prevent disenfranchisement, we would not have needed the several Amendments ratified subsequent to it that explicitly extended the franchise:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

So, coupled with the 14th Amendment, these other Amendments do prohibit disenfranchisement, but only on the basis of race, color, previous condition of servitude, sex, age, and failure to pay a tax.  That still leaves a lot of groups that can be disenfranchised, again, as long as the State is willing to accept reduced representation (which may amount to nothing if the disenfranchised group is small enough).  

One of the main concerns the Founders had with a Bill of Rights was that enumeration of these rights would exclude any rights not explicitly laid out.  That's why the 9th Amendment had to be inserted:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

But we don't have that with the 14th Amendment.  Quite the contrary; it explicitly leaves the door open to disenfranchisement by stating that a State may do this, and laying out the penalty for doing it.  There is no language saying that groups not explicitly enumerated are still protected from disenfranchisement.  At the time of writing of the 14th, of course, the language of the 9th had to have been understood, and the authors of the 14th knew that their own Amendment could have been phrased in such a way.  But they also knew and accepted that many groups could not vote, such as women, those under 21, etc., and they chose not to remedy any of that.  Therefore, we still require an explicit call-out of groups not to be disenfranchised, and religious groups, height groups, name groups, etc., are unfortunately not among them.

Even the 1st Amendment is no foil, because all it does is prohibit legislation that denies the free exercise of religion, or establishment of religion.  Disenfranchising Muslims in Oklahoma, say, does neither of these things.  Disenfranchising gays, people named Albert, and yak herders certainly has no explicit protection.

I'm not a Constitutional scholar by any means, so maybe someone can talk me down here.  I'm surprised some young piss-and-vinegar Repub hasn't thought of this.  There must be some settled law that says I'm wrong on this ... isn't there?

Originally posted to skralyx on Mon May 16, 2011 at 09:56 PM PDT.

Also republished by Community Spotlight.

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