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.
An affirmative right to vote could also test our anachronistic practice of voting on Tuesdays. In an agrarian society, having elections on Tuesdays allowed a day of travel to the county seat to vote without interfering with Sunday worship or Wednesday market days. Today, it’s just a burden for anyone who doesn’t have the luxury of rearranging her work schedule. Thirty-two states now allow in-person early voting without an excuse, but the remainder do not, and some of 2012’s fiercest battles centered around efforts to roll back early voting where it existed. The eight-hour lines that some voters experienced this year should be recognized as a breach of a state’s constitutional obligations to an individual’s right to vote.
Importantly, a Right to Vote Amendment would change the constitutional calculus regarding felon disenfranchisement laws, which currently limit the rights of nearly six million Americans, including four million who are no longer incarcerated. As with other voting limitations, these laws disproportionately affect African Americans; in several states, more than one in five African Americans is prohibited from voting. NYU Law Professor Bryan Stevenson predicts that in ten years, the level of disenfranchisement in Alabama will be higher than before passage of the Voting Rights Act. The Supreme Court has refused to apply strict scrutiny to felon disenfranchisement except where discriminatory intent can be proven. While a state might succeed in defending a policy to keep currently incarcerated prisoners from voting, the continued disenfranchisement of the four million people who are otherwise integrated into the fabric of society would be much harder to defend. The fight to restore these voting rights is often marginalized; grounding it in a broader movement can help it advance. Similarly, the uncategorical disenfranchisement of millions of Americans who live in the District of Columbia, Puerto Rico, and other territories finds little organized objection outside of the affected communities.
Beyond the Amendment, a Movement
While there is a vibrant “democracy movement” of Americans devoted to improving the functioning of our democracy and our policy-making apparatus, it is pulled in dozens of different directions. There are organizations and individuals devoted to fighting to change registration requirements, eliminate voter-ID laws, expand early voting, as well as dozens of other useful, democracy-enhancing reforms. To most of these advocates, the absence of an affirmative right to vote is no secret, but few have openly embraced the call to amend the Constitution. Some believe that acknowledging this constitutional deficiency is confusing and weakens their reliance on an implicit “right to vote” in legal or public advocacy. Many others think that the cause is simply not worth the time and money required to mount the fight. We disagree.
The Twenty-sixth Amendment, extending the vote to 18 year olds, was ratified four months after it first passed the Senate. Despite the similarly wholesome appeal of a broader Right to Vote Amendment, we have no illusions regarding its rapid ratification under current political circumstances. With 26 state legislatures, including all but one in the South, under complete control by conservatives after the 2012 election, reaching the 38 states necessary would be almost impossible. But even if the odds of passage are daunting, a push to enshrine the right to vote in the Constitution would still have tremendous movement-building value.
A good example of an amendment campaign that built a movement is the Equal Rights Amendment (ERA), which fell short of being ratified in the late 1970s, but gave the emerging women’s movement a clear goal, provided it with a guiding mission, and prompted a significant national conversation about equality and the rights of all people. Through state and federal laws, the creation of state commissions on the status of women, and, above all, cultural changes in the family, schools, and corporate America, women have achieved many of the original goals of the ERA.
A Right to Vote Amendment would not supersede the many causes of the democracy movement, but it would give them a similar overarching mission, with the principle of full participation and universal suffrage at the forefront. Unlike other proposed amendments, such as the various versions of an amendment to reverse Citizens United or declare that corporations aren’t people, which provide no other opportunities for success short of final ratification, the Right to Vote Amendment would be a “Yes We Can” amendment like the ERA. Nothing would have to wait for the amendment to be ratified; all the steps toward a real universal right to vote could be pursued and enacted through legislation alongside the fight for the amendment.
A Basic Covenant
The language of such an amendment could take several forms, such as one proposed by Heather Gerken of Yale Law School: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State.” This same text could be narrowed to exclude primaries and apply only to general elections, or broadened to cover state elections.
One would expect the reforms needed to fix the problems with registration, voter ID, and early voting to be non-controversial were they not so entangled with partisan battles for political power. By embedding those fights into an argument for a right that most Americans believe is a cornerstone of our national identity, the prospects for legislative success on these issues are only strengthened.
Moreover, by showing Americans how far we fall short of a basic right that most of us assume is in the Constitution, it will help clarify and expand the coalition for other reforms that are equally important but more politically challenging. By putting participation and political equality at the heart of the Constitution, a Right to Vote Amendment would also extend its benefits beyond issues of suffrage to the influence of money in politics. Under the Supreme Court’s current jurisprudence, the ability of individuals and corporations to spend unlimited sums to affect elections cannot be constrained. This theory has helped unleash the greatest threat of corporate capture of our democracy since the first Progressive movement rose to face similar challenges a century ago. The answer to this threat is a robust system of citizen funding to enhance the value of small contributions from ordinary voters. [See also “Mismatching Funds,” Issue #4.] The arguments for this policy resonate clearly with the spirit of a Right to Vote Amendment.
In the era of the voting wars, the right to vote is itself a subject of continued partisan, regional, and racial conflict. It’s time to resolve the fights, and fulfill the promise of American democracy, by joining together in an effort to make the right to vote, at last, a part of our basic covenant as a nation.
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