This obscure constitutional provision could punish states for disenfranchising voters: Former DOJ lawyer

On Wednesday, POLITICO reported that a former Justice Department attorney is proposing a radical new way to enforce a forgotten provision of the Constitution that allows the federal government to punish states for making it harder for various groups to vote.

Specifically, a little-discussed clause of the 14th Amendment states that if any state is found to be disenfranchising voters, they can be stripped of representation in the House proportionate to the amount of the population that cannot vote.

"Under the so-called penalty clause, it doesn’t matter how a state abridges the right to vote, or even why," reported Michael Linhorst. "The framers of the constitutional amendment worried that they would not be able to predict all the creative ways that states would find to disenfranchise Black voters. They designed the clause so that they wouldn’t have to. 'No matter what may be the ground of exclusion,' Sen. Jacob Howard, a Republican from Michigan, explained in 1866, 'whether a want of education, a want of property, a want of color, or a want of anything else, it is sufficient that the person is excluded from the category of voters, and the State loses representation in proportion.'"

One former Justice Department attorney, Jared Pettinato, thinks he has a novel idea for how to enforce this provision.

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Specifically, he wants to sue the Census Bureau, arguing that it should use the penalty clause to reduce apportionment for states disenfranchising voters, and that it has the demographic information to identify where that disenfranchisement is happening. His suit uses as an example Wisconsin, where courts found election laws disenfranchised up to 300,000 people, 9 percent of the state's population, for which the Census Bureau should strip them of 1 House seat.

"Pettinato is a lawyer, though election law isn’t his specialty by trade. He worked at the Department of Justice for nine years with a focus on environmental issues, leaving soon after the 2016 election," said the report. "The 43-year-old Montana native got the idea for the lawsuit after listening to a podcast hosted by the libertarian group Institute for Justice. A mention of the penalty clause piqued his interest, and he started reading up on it. He says he’s been aided by his expertise in administrative law from his time at the Justice Department along with an undergraduate degree in math."

After the COVID-19 pandemic forced states around the country to expand alternative methods of voting, Republicans around the country cracked down hard, with Texas adding new restrictions to the state's already limited mail-in voting, and Georgia even making it illegal to give water to people standing in voting lines.