The Missing Right: A Constitutional Right to Vote

In order to become a naturalized citizen of the United States, until recently you had to answer this question: “What is the most important right granted to U.S. citizens?” The correct answer, according to the United States government, was, “The right to vote.” But that “right” has always been on shaky ground. Just as the Constitution once countenanced slavery, it also allowed voting to be restricted to property-holding white men. The Thirteenth Amendment expunged the stain of slavery from our basic law, but the Constitution has never fulfilled the democratic promise we associate with it. Put simply—and this is surprising to many people—there is no constitutional guarantee of the right to vote. Qualifications to vote in House and Senate elections are decided by each state, and the Supreme Court affirmed in Bush v. Gore that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States.”

Amendments to the Constitution have required “equal protection,” eliminated the poll tax, and made it unconstitutional to restrict voting based on race, sex, and age for those over 18. For years the Supreme Court relied on these amendments to expand the franchise, and the broadening of voting rights, which was associated with the civil-rights movement, was widely accepted as a marker of progress toward a just society until about 2000. More recently, in an environment of increasingly rigid partisan loyalties, controlling who votes offers more leverage than persuading voters to change their minds, and thus access to the ballot itself has become an arena of intense political conflict. These conflicts constitute what the election scholar Richard Hasen calls “the voting wars.” Most of these wars end up in the courts, where the rules of engagement—defined by our Constitution—do not sufficiently protect voters’ rights to exercise their franchise. In the absence of an explicit right to vote, the Court has found no issue with a variety of regulations that unnecessarily interfere with voting.

The result has been a steady descent into chaos and confusion that threatens the integrity of our institutions at home and our credibility in promoting democratic governance abroad. People wait hours in line to cast a ballot; voting hours and locations change at the last minute; there’s uncertainty about who can vote, whether voters need to show identification, and what counts as identification. Armies of lawyers fight over these rules before elections, and when the results are close, they fight again over which votes should and shouldn’t be counted. Hasen reported recently that cases challenging election rules have more than doubled in the decade since Bush v. Gore.

Finally enshrining the right to vote in the Constitution would help resolve most of these cases in favor of voters. It would not make every limitation unconstitutional—it is the essential nature of voting, for instance, that there be a date certain by which votes must be cast in order to be counted—but it would ensure that these limitations are judged under the standard known as “strict scrutiny,” meaning that governments would have to show that the restrictions were carefully designed to address a compelling interest of the state. We would come to find that many familiar aspects of our current voting system would not meet this standard and access to the ballot could be extended to millions who are now actively or effectively disenfranchised.

The Varieties of Disenfranchisement

One of the most suspect voting restrictions is the requirement that voters register up to one month prior to Election Day in order to be allowed to cast a ballot. In 2008, around six million eligible voters did not vote because of difficulties associated with registration requirements, according to the Census Bureau. From their origins in the mid-nineteenth century, registration requirements have made it more difficult for poor, less-educated, and transient people to vote, but the Court has accepted the claims by states that registration in advance is needed for orderly elections and to prove that a voter is a real resident. Eight states allow voters to register on Election Day, two more are implementing same-day registration, and one (North Dakota) doesn’t require voter registration at all, proving that prior registration is simply unnecessary to meet either of these goals.

Like voter-registration requirements, more recent laws requiring that voters show photo identification to vote have the effect of preventing large numbers of people—particularly poor people and minorities—from voting. There’s ample evidence that that result, with consequent political effects, is exactly their purpose. Note the claim by Pennsylvania House Majority Leader Mike Turzai that voter ID “is gonna allow Governor Romney to win the state of Pennsylvania.” Since 2008, when the Supreme Court approved Indiana’s voter-ID law based on the state’s interest in protecting the integrity of elections, 14 states have enacted and strengthened voter-ID laws, and only in states where there is a guaranteed right to vote in the state constitution were courts able to weigh the burden on voters against the claims of voter fraud. (The Pennsylvania law was blocked, for 2012, by a state court relying on the state constitution; Republican nominee Mitt Romney did not win Pennsylvania.) The Supreme Court was right to recognize the state’s interest in election integrity, but without evidence of in-person voter fraud, which is extremely rare, it should have given greater consideration to the burden on individual voters. A constitutional affirmation of the right to vote would have required the Court to weigh these interests differently.

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