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Voting Safeguards in History

Electoral process and suffrage have proven hard to safeguard.

Congress seldom uses criminal statutes to protect electoral functions or suffrage. Amendments XV, XIX, XXIV, and XXVI which address voting directly have been used sparingly. Congress instead derived the Voting Rights Act, a strange and awkward statute, from the Equal Protection clause, Section 1 of Amendment XIV, which was designed to restore Article IV, Section 2.

This amendment doesn't affect the Equal Protection clause,

but that clause addresses an overlapping area of law and has a weak and uneven effect on this one.

And it can only be enforced in the courts where abridgment is hard to define and can be influenced unevenly at best.

Litigation can't always handle the increasingly subtle abridgments we address today.

Indirect abridgment probably accounts for more abridgment than the forms

that lend themselves to address in civil courts.

One reason we passed Amendment XIV, Section 2 was to keep the ballot a government priority.

Amendment XIV, Section 2 if enacted would give Congress a strong incentive to protect the ballot:

their own ability to vote in the House depends on it.

By establishing an in-Congress penalty it would make abridgment and denial of the vote much easier to enforce.

Congress has failed for 150 years to pass legislation implementing it.

Congress has never enacted it because it works by reducing the in-House voting power of Representatives

to match abridgment and denial.

It also leaves to legislation the task of detailing how to prove denial or abridgment.

Most Americans have forgotten it exists.

The original version of this amendment included a clause enforcing Amendment XIV’s Section 2 but it was divisive (see No Loss of House Representation).

It was removed from this amendment but it remains in the Constitution, a provision for grave emergency.