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From the Fourteenth Amendment:
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.[Emphasis added.]

A state without any voter ID requirement (other than a voter registration) ought to sue the states that have those requirements.  I think there's an excellent case that if, for example, 10% of otherwise eligible voters in Pennsylvania don't have a photo ID or a government-issued photo ID, or one with an expiration date, or whatever Pennsylvania law requires, then Pennsylvania should lose 10% of its seats in the House of Representatives.  

The threat of having even one congressman kicked out would probably motivate all states to make sure every voter otherwise eligible also has the right ID's.  They could include a photo on the voter registration itself, for example.

Apparently Section 2 of the Fourteenth Amendment has rarely been litigated.  But even if there is no enabling law for Section 2, and no precedent for one state suing another on the basis of Section 2, the amendment alone spells out the remedy to be applied.  About the only thing to argue about is how to determine the fraction of potential voters disenfranchised by the rule.  When one state sues another, the Supreme Court has primary jurisdiction.  

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Comment Preferences

  •  Tip Jar (3+ / 0-)
    Recommended by:
    pajoly, wu ming, Roadbed Guy

    We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

    by david78209 on Tue Jun 25, 2013 at 09:33:18 PM PDT

  •  david - wouldn't you have to prove in court (3+ / 0-)
    Recommended by:
    david78209, Victor Ward, Pi Li

    that the voter ID requirement was unconstitutional, and then if the state still didn't change it they could put Congressional seats in jeopardy?

    Have any of the voter ID laws been fully litigated? What's the current track record?

    I also wonder how eager any state would be to litigate against another state in this fashion?

    "let's talk about that"

    by VClib on Tue Jun 25, 2013 at 09:45:23 PM PDT

    •  "when the right to vote...is in any way abridged" (1+ / 0-)
      Recommended by:
      Dogs are fuzzy

      I'm not a lawyer, but I'd think that's what you'd need to prove.  That sounds to me that other than registering to vote, they can't make you jump through any other hoop.

      I'm not a lawyer, but that may not put me all that far behind the curve on this matter.  I don't think there's ever been such a lawsuit, but there is precedent for states suing each other, and such suits start (and end, I suppose) in the Supreme Court.  

      We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

      by david78209 on Tue Jun 25, 2013 at 10:27:07 PM PDT

      [ Parent ]

      •  David - per the comment by zenb bellow (2+ / 0-)
        Recommended by:
        Kickemout, Victor Ward

        some of these voter ID laws have been litigated all the way to the SCOTUS and deemed permissible. I think that takes the air out of your argument.

        I also think that a state AG would come under harsh criticism for litigating against another sovereign state regarding that other state's election laws. I don't think that type of litigation has ever been seen.

        "let's talk about that"

        by VClib on Tue Jun 25, 2013 at 11:11:54 PM PDT

        [ Parent ]

        •  I'm not so sure it does (2+ / 0-)
          Recommended by:
          david78209, VClib

          The Crawford v. Marion County Election Board case decided that Indiana's photo ID requirement did not unconstitutionally deny people the vote because the statutes held various exceptions and DMVs were made more accessible to a sufficient extent that no-one who had the right to vote saw that right abridged.  At first glance, this would seem to make a state with such a photo ID law immune from issues arising from Section 2 of the Fourteenth.

          But Crawford has two big glaring holes in it as far as using it for precedent is concerned:

           1. The Indiana law is very "soft" compared to some that have been passed since (hello from Wisconsin!)
           2. Crawford was a purely facial challenge to the constitutionality of Indiana's photo ID law.  With specific testimony from people who have found themselves unable to vote, a lawsuit would likely have far stronger legs.
              Again in Wisconsin - this time in our state courts - see the 4th District Court of Appeals' reversal of the League of Women Voters' purely facial case against the voter ID law here which dropped heavy hints that with specific testimony - such as in the NAACP case against the same law in a different court - they would do a lot better.  In the latter case, it is a legal fact that Wisconsin's photo ID law would disenfranchise over 300,000 people (see #16 on page 11), 9.3% of the adult population of about 4.4 million.
             Using these numbers, the diary suggests Wisconsin's fair share of seats in the House would be reduced from 8.02 to 7.28.  We currently have 8.

          Source: I have had to repeatedly deal with GOPers in WI saying "but that purely-facial Indiana case before the SCOTUS means that our vastly more restrictive photo ID law is all above board (as long as we ignore the Wisconsin Constitution's explicit right to vote as well)!" when it comes to our photo ID law.

          Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

          by GeoffT on Wed Jun 26, 2013 at 12:36:45 AM PDT

          [ Parent ]

          •  Geoff - thanks for a very informative and (1+ / 0-)
            Recommended by:
            david78209

            thoughtful reply.

            Who would bring suit to reduce the number of House members representing WI?

            "let's talk about that"

            by VClib on Wed Jun 26, 2013 at 08:29:32 AM PDT

            [ Parent ]

            •  Any state that doesn't "abridge" the right to vote (0+ / 0-)

              would have an interest in reducing the number of representatives other states get, simply because the plaintiff state would have proportionately more representation in the House.  States fight over census results and sue the Census Bureau over getting one more representative.  If they win, they get one more seat in the House and some other state loses a seat.

              For one state to sue another state is perhaps a little more "in your face" than suing the Census Bureau, but even when the defendant is technically the Census Bureau, it's obvious which stands to lose a seat.

              California currently has about one eighth of the seats in the House.  If they could knock down other states' representation by a total of eight seats, it would have the same effect, in proportion, as California getting another seat.

              We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

              by david78209 on Wed Jun 26, 2013 at 12:58:56 PM PDT

              [ Parent ]

              •  david - I think states will be very reluctant (0+ / 0-)

                to sue other states over this issue. Spending money to litigate the voting practices of another state would subject the state AG to a lot of criticism for spending money on this quest.

                "let's talk about that"

                by VClib on Wed Jun 26, 2013 at 02:03:44 PM PDT

                [ Parent ]

            •  The question would be one of standing (1+ / 0-)
              Recommended by:
              VClib

              i.e. whichever state would stand to pick up Wisconsin's 8th would have such grounds: there would be only one, after all.

              Working with the 2010 census data and the 1941 Apportionment Act, the state with such grounds is North Carolina, which would gain a 14th seat.  Since they've recently added their own photo ID law, they're rather unlikely to want to sue Wisconsin to get it since the precedent would lose them the seat right back (and potentially even more).

              Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

              by GeoffT on Wed Jun 26, 2013 at 04:52:47 PM PDT

              [ Parent ]

              •  Presuming the 9.3% rate (1+ / 0-)
                Recommended by:
                VClib

                Missouri would have a chance for standing against North Carolina, but MO have a state constitutional amendment for photo ID before the voters in November next year.

                Missouri wouldn't lose any seats if they disenfranchised 9.3% of their adults.

                Yesterday's Shelby v Holder decision allowed Texas' photo ID law to take effect; at the 9.3% rate this would give North Carolina, Missouri and New York standing.

                Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

                by GeoffT on Wed Jun 26, 2013 at 05:13:05 PM PDT

                [ Parent ]

    •  The Indiana law was litigated in 2008. (2+ / 0-)
      Recommended by:
      VClib, Victor Ward

      SCOTUS upheld it.

      "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

      by zenbassoon on Tue Jun 25, 2013 at 10:28:40 PM PDT

      [ Parent ]

  •  I'd sooner take away the seats of states... (0+ / 0-)

    ...where anyone can come up to the table, claim to be anyone, and proceed to vote.  

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Wed Jun 26, 2013 at 03:47:11 AM PDT

  •  OK, sounds good, (0+ / 0-)
    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.
    but what about this:
    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.
    I assume this refers to African Americans, who IIRC count as 3/5ths of a whole number.  Fair enough, but do we round up or down if the the final tally has a fraction in it?

    And

    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.
    also looks OK to me, but what if the womenfolk get uppity about their exclusion??
    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.
    So we're going by drinking age, not voting age?  I guess I can live with that, since for most people the former right is considerably more important than the latter . .. .
    •  The fourteenth amendment was enacted soon after (0+ / 0-)

      the Civil War.  It or another of the post-Civil-War amendments also eliminated that three-fifths representation for anyone.  Later amendments gave women the vote, and people ages 18-21.  I think the only reasonable way to interpret the fourteenth amendment is as part of the whole Constitution, and therefore now also applying to women and 18-21 year old people.  

      We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

      by david78209 on Wed Jun 26, 2013 at 01:07:40 PM PDT

      [ Parent ]

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