The Forgotten Constitutional Weapon Against Voter Restrictions

Under the so-called penalty clause, it doesn’t matter how a state abridges the right to vote, or even why. 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.”

That approach could come in handy for discouraging states from imposing more limits on voting, as the country witnesses what Adam Lioz, senior policy counsel at the NAACP Legal Defense Fund, calls “the greatest assault on voting rights since Jim Crow.”

There’s just one problem: The penalty clause isn’t being enforced — and never has been.

One man is now waging a legal campaign to change that. It’s a long shot, but if he succeeds, it could serve as a sharp deterrent against voting rights restrictions and even reshape the entire electoral map. At minimum, the push highlights why such language was included in the Constitution in the first place.

Jared Pettinato thinks he’s finally figured out how to make the penalty clause come to life: Sue the Census Bureau.

Pettinato is a lawyer, although election law is not 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. (“The people of the United States decided on a different boss for me, and I didn’t really want to work for that boss,” he says.)

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 helped by his expertise in administrative law from his time at the Justice Department along with an undergraduate degree in math.

“I could see how to put all these pieces together,” Pettinato says. “My background doing the environmental law work gives me a different perspective than most of your voting rights attorneys.”

So he filed a lawsuit late last year against the Census Bureau, which is responsible for deciding how many House seats each state receives after the census is completed every decade. The suit argues that the Census Bureau’s job of apportioning seats also requires it to apply the penalty clause, and that it already has the information it needs to figure out how many people in each state have experienced harm to their voting rights.

Pettinato filed the lawsuit in DC federal court on behalf of a nonprofit he runs, Citizens for Constitutional Integrity. It is something of a labor of love for him. There is no big law firm pitching in to provide resources and expertise. None of the states that might stand to gain from penalty clause enforcement has come to his aid. Voting rights activists aren’t focused on the challenge. Pettinato is working on contingency, paying the bills through work on other cases. “We’re scraping together enough to pay the filing fees,” he says.

Still, in the penalty clause’s long history of non-enforcement, Pettinato’s lawsuit might stand the best chance yet to finally make the provision a reality.

“I think it’s more likely than any previous lawsuit I’m aware of to succeed in at least shifting one congressional seat,” says Thomas Berry, a research fellow at the Cato Institute who has written about the clause.

The suit points to Wisconsin, where a law passed in 2011 requires voters to present a photo ID at their polling place but limits what kinds of ID are acceptable. A federal judge concluded that the law disenfranchised 300,000 registered voters, or 9 percent of the state’s total, because they lacked a qualifying ID. (The judge’s legal conclusion was later overturned, but the appeals court said it accepted his factual finding.) The complaint holds Wisconsin up as an easy example for the Census Bureau to apply: Under the penalty clause, the state should lose 9 percent of its representatives, which rounds to one seat in the House. That seat would shift to another state.

Analysis by a data scientist cited in the lawsuit found that seven states — Arizona, Maryland, Mississippi, New Jersey, Ohio, Tennessee and Virginia — would gain at least one seat each if the Census Bureau fully applied the penalty.

The lawsuit is still in its early stages. The government filed a motion to have it dismissed, and Pettinato filed a motion urging the court to decide for him on the merits. Earlier this month, the court scheduled an oral argument on the motions, but not until December. That means the case won’t be decided before November’s midterm elections, but the court is likely to rule by 2024. Attorneys for the Census Bureau declined to comment.