Is Voting a Right? Should It Be?

Your weekly excerpt from one of my books. This week: "The Hidden History of the War on Voting"

The Republican War against your right to vote. Over the next few months the entire book will be here, new chapters posted every Sunday, for subscribers to read at no cost. If you want to get a physical book to mark up or share with others, just click on the picture above, visit your local bookstore, or check your favorite online seller.

Is Voting a Right? Should It Be?

The framers of the Constitution were pretty skittery about the issue. The roughly half of the Constitutional Convention that represented slaveholding states didn’t want anything that might one day force their states to allow enslaved people to vote, and many of the Northern representatives were wary of too much democracy breaking out and leading to what John Adams referred to as “the rabble” voting. And there was an absolute consensus that women should never be allowed to vote.

Thus, voting is only really addressed in the amendments to the Constitution, and in each case very, very carefully.

The 15th Amendment says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

Similarly, the 19th Amendment says, simply, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

And the 26th Amendment lowers the voting age to 18: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”

But while each of these prohibits the prevention of people from voting because of their race, color, sex, or age, nowhere is there to be found in the Constitution an affirmative “right to vote” for all citizens.

To the contrary, in Bush v. Gore, the Supreme Court ruled that “[t]he individual citizen has no federal constitutional right to vote” for the president, because it’s actually a vote by proxy in which a citizen is voting for a member of the Electoral College, who will then cast the vote that counts for president. That, among other arguments that were hotly contested in multiple dissents by the four Democratic-appointed justices, led the logic that shut down the vote count in Florida, which would later find, when the votes were recounted by a group of news organizations a year later, that Al Gore had actually won the state and thus the 2000 election.61

In a similar case just a few weeks before Bush v. Gore, the Republican majority on the Supreme Court ruled that the Equal Protection Clause of the 14th Amendment didn’t mean that we all have an equal right to vote. “The Equal Protection Clause does not protect the right of all citizens to vote,” the justices affirmed in upholding a lower court’s ruling that people in Washington, DC, are not entitled to representation in Congress.

As congressman and constitutional scholar Jamie Raskin, D-Maryland, wrote, while at least 135 countries have written an affirmative right to vote into their constitutions, “[by] my count, only Azerbaijan, Chechnya, Indonesia, Iran, Iraq, Jordan, Libya, Pakistan, Singapore, and, of course, the United Kingdom (whose phony doctrine of ‘virtual representation’ the colonists rebelled against centuries ago) still leave voting rights out of their constitutions and therefore to the whims of state officials.”62

This led Representative Mark Pocan, D-Wisconsin (and cosponsors), to propose a simple amendment to the Constitution. In 2013, they introduced into Congress amending legislation that said, “Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.”63

Speaker of the House Paul Ryan, R-Wisconsin, refused to allow it to come to the floor for a vote, and it died in that congressional session; a similar fate has befallen efforts by Democratic senators over the years.

Such an amendment would completely flip upside down virtually all of the Republican Party’s many efforts to prevent people from voting. Instead of voters having to prove that they were eligible to vote, the government (from federal to state to local) would have to affirmatively prove, through due process, that they’d lost that right or weren’t eligible for it (presumably by conviction for treason or loss of citizenship).

With an affirmative right to vote in place, Rehnquist’s Operation Eagle Eye would have been illegal, as would the many state efforts to make it harder to register or to vote. It would criminalize efforts by state and local officials to close polling places, require strict IDs while closing DMVs, or arbitrarily engineer elections in ways that would make it more difficult to vote.

It would also require election officials to make sure that their operations were state-of-the-art and not vulnerable to hacking or malfeasance (particularly if the citizens’ right to have their vote counted was included in the amendment). Ending the Electoral College in the same amendment would be an added benefit.

Everything could change.