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 ri...

Apportionment of Representation

With the abolition of slavery by the Thirteenth Amendment, the African Americans formerly counted as three-fifths of persons would be fully counted in the apportionment of seats in the House of Representatives, increasing as well the electoral vote, there appeared the prospect that politically the readmitted Southern States would gain the advantage in Congress when combined with Democrats from the North. Inasmuch as the South was adamantly opposed to African American suffrage, all the congressmen would be elected by whites. Many wished to provide for the enfranchisement of the African American and proposals to this effect were voted on in both the House and the Senate, but only a few Northern States permitted African Americans to vote and a series of referenda on the question in Northern States revealed substantial white hostility to the proposal. Therefore, a compromise was worked out, to effect a reduction in the representation of any State which discriminated against males in the franchise.[1936]

No serious effort was ever made in Congress to effectuate § 2, and the only judicial attempt was rebuffed.[1937] With subsequent constitutional amendments adopted and the utilization of federal coercive powers to enfranchise persons, the section is little more than an historical curiosity.[1938]

However, in Richardson v. Ramirez,[1939] the Court relied upon the implied approval of disqualification upon conviction of crime to uphold a state law disqualifying convicted felons for the franchise even after the service of their terms. It declined to assess the state interests involved and to evaluate the necessity of the rule, holding rather that because of § 2 the equal protection clause was simply inapplicable.

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[1935] 432 U.S. at 471-74. See also Harris v. McRae, 448 U.S. 297 , 322 -23 (1980). Total deprivation was the theme of Boddie and was the basis of concurrences by Justices Stewart and Powell in Zablocki v. Redhail, 434 U.S. 374 , 391 , 396 (1978), in that the State imposed a condition indigents could not meet and made no exception for them. The case also emphasized that Dandridge v. Williams, 397 U.S. 471 (1970), imposed a rational basis standard in equal protection challenges to social welfare cases. But see Califano v. Goldfarb, 430 U.S. 199 (1977), where the majority rejected the dissent's argument that this should always be the same.

[1936] See generally J. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956).

[1937] Saunders v. Wilkins, 152 F.2d 235 (4th Cir. 1945), cert. denied, 328 U.S. 870 (1946).

[1938] The section did furnish a basis to Justice Harlan to argue that inasmuch as § 2 recognized a privilege to discriminate subject only to the penalty provided, the Court was in error in applying § 1 to questions relating to the franchise. Compare Oregon v. Mitchell, 400 U.S. 112 , 152 (1970) (Justice Harlan concurring and dissenting), with id. at 229, 250 (Justice Brennan concurring and dissenting). The language of the section recognizing 21 as the usual minimum voting age no doubt played some part in the Court's decision in Oregon v. Mitchell as well. It should also be noted that the provision relating to "Indians not taxed" is apparently obsolete now in light of an Attorney General ruling that all Indians are subject to taxation. 39 Op. Att'y Gen. 518 (1940).

[1939] 418 U.S. 24 (1974). Justices Marshall, Douglas, and Brennan dissented. Id. at 56, 86.