It’s November 6, 2012—Election Day. And it’s an important one: across the country, people are going to the polls to do their civic duty and make their voices heard on issues ranging from the Affordable Care Act to nuclear proliferation in Iran. But, according to a study done by the Massachusetts Institute of Technology, certain demographics of voters—urban vs. rural, early vs. day-of, and African American and Hispanic vs. white—are going to be waiting longer to perform that civic duty.
Jonathan Piccolo, as quoted in the New York Times, waited more than eight hours to cast his vote on the Monday before election day in Miami-Dade County. Cases like Jonathan’s are certainly outliers, as the average wait in Florida, which was the longest in the country, was nearly forty minutes—not short by any means, but not eight hours. But stories like Jonathan’s served to bring national attention to the problems that faced many voters in this past election.
With the passage of new early voting restrictions, felon voting laws, and voter ID laws in many states, these issues of fairness in voting have come to the foreground of the national debate. Both sides of the debate claim to defend the fundamental right of a democratic society: the right to vote. Republicans claim to be defending that right from fraud while Democrats claim to be defending everyone’s right to freely utilize it. But there is just one surprising problem with both of these arguments: citizens in the United States don’t have the right to vote.
Where is my right to vote?
Most would agree that the right to vote is paramount in a democratic society. If that is the case, then why is it not enumerated in the Constitution? The framers wrote the Constitution with ambiguous language so that it could be interpreted to apply to situations that they could not have foreseen. Part of the reason that it is able to last in perpetuity is that the language is sufficiently flexible such that it does not have an expiration date in relevance. But in contrast to that ambiguity, the language on who qualifies to run for Congress and the Presidency, and that describes how they are elected, is quite specific. In spite of such specificity, there is no explicit statement of the individual citizens being guaranteed to elect those representatives.
There are, of course, a number of amendments to the constitutions that mention the right to vote: the Fourteenth (the vote is given to all men 21 or over), Fifteenth (the vote cannot be denied based on race, color, or previous condition of servitude), Nineteenth (the vote cannot be denied based on sex), Twenty-Fourth (the vote cannot be denied for failure to pay a poll tax), and Twenty-Sixth Amendments (the voting age is lowered to 18). But these are all negative. That is, they say that you cannot deprive a person of the right to vote for the enumerated reasons, which leaves open non-enumerated reasons to restrict the right. No positive statement of the right to vote that actually gives the right exists in the text of the Constitution.
There is certainly an argument to be made that these amendments implicitly give a right to vote. The above listed amendments are qualifying a right, so doesn’t that assume that we have that right? That may be good enough for some, but when that implicit right was challenged in the 2000 Presidential Election, the Supreme Court found that, “The individual citizen has no federal constitutional right to vote for electors for the President of the United States.” An inferred right was not in this case, nor will it be in the future, strong enough to protect the citizens’ federal right to vote. Alexander Keyssar, Professor of History and Social Policy at Harvard University, said in an interview with the Harvard Political Review, “It does seem to be the case that a state legislature could decide not to have an election, and just to choose electors by itself, as Florida’s was about to do,” Keyssar continued, “That’s an extreme but important category by itself where we do need the right [to vote].”
How do we fix this?
Because the Constitution is a living document, it can be amended to include the changing ideas of what is a right and what is a privilege. At the time when the Constitution was written, there was no universal suffrage. Each state had its own standard, and there was no move to include a federal voting standard in the Constitution for fear that it would jeopardize ratification. Some states used money and some states used property as the qualifiers for voting, but it was a privilege in all of them. According to Keyssar, “The history of the nineteenth century, in some ways, is a history of the movement from privilege to voting being a right. We do believe that voting is a right.” So although the thinking on voting has changed from privilege to right, the laws have not adjusted accordingly.
After the controversy surrounding the 2000 Presidential Election, former Representative Jesse Jackson Jr. (D-Ill.) attempted to pass a voting rights amendment. He introduced the amendment year after year and was building up momentum by adding co-sponsors, until he resigned from Congress in 2012. This issue was picked up by Representatives Mark Pocan (D-Wis.) and Keith Ellison (D-Minn.): on May 13, 2013, they introduced an amendment that reads, “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.” This amendment would serve to formalize in the Constitution the right that the country has historically come to recognize not just as a privilege, but as a right.
There are, as with anything, potential drawbacks to this amendment. The amendment raises important questions about what to do about felon voting and voting in Washington D.C., Guam, Puerto Rico, and the other protectorates. But these are not brought up in opposition to the passage of such an amendment. In fact, such opposition remains minimal. So why has it not passed? Theda Skocpol, Professor of Government and Sociology at Harvard, explained, “They won’t oppose it; they just won’t bring it up. Speaker Boehner has the power to decide what comes up.”
Why do we need this now?
The right to vote is being threatened. Perception of large-scale voter fraud has been used by many Republican state legislatures to justify the passage of restrictive voting laws, even though this widespread voting fraud has not been proven (and in fact, has been disproven by some studies). In June of 2013, the Shelby v. Holder Supreme Court decision found that Section 4 of the Voting Rights Act of 1965 was unconstitutional. Because of this law change, a number of state legislatures have begun to pass voter ID laws and restrictions on early voting, moves that disproportionately affect Democratic voters, and are seen as an attempt by Republican state legislatures to solidify their voting bases.
Skocpol acknowledged this interpretation and said, in an interview with the HPR, that the Republicans may think they’re winning in the short run through this strategy, but they will not win in the long run. Skocpol went on to say, “I think that [voting rights] is an issue that will have some traction. I don’t think very many people in the United States would like it if they knew the facts about what’s going on right now.” The short-run victory is in the polls, where a political calculation has encouraged some Republicans to attempt to disenfranchise traditionally Democratic-voting demographics, but the long-term loss is the risk of being branded as a party in favor of voter suppression. Wisconsin State Senator Dale Schultz (R) echoed this sentiment when he spoke out against the bill recently passed by the Wisconsin Senate that would restrict early voting, saying, “we should be pitching as political parties our ideas for improving things in the future, rather than […] trying to suppress the vote.”
The Voting Rights Act mandated that states with a history of voting discrimination had to get approval from the federal government before changing their voting laws. This process was called preclearance and was not found to be unconstitutional. Instead, the Court found that the formula by which the Voting Rights Act decided which states would be subject to preclearance was unconstitutional because it was outdated. Because the formula was deemed inadequate, the VRA has no preclearance process at all. As a result, some state legislatures (Wisconsin, North Carolina, Texas, among others) have passed laws that restrict the right to vote.
Under the court’s decision in Shelby, an updated formula would be constitutional. Following this line of reasoning, Representatives Jim Sensenbrenner (R-Wis.) and John Conyers (D-Mich.) have proposed a new formula for determining which states would need to go through preclearance in order to change their federal voting laws. This, like the amendment, is also problematic because in another Supreme Court case, an updated formula could also be found unconstitutional.
According to Keyssar, the existence of both a voting rights amendment and the updated version of the Voting Rights Act would best protect the right to vote. The amendment would serve to positively define the right and the updated Voting Rights Act would “provide a process to enforce the right to vote,” according to Keyssar.
An amendment would guarantee a right that is essential in securing a free, fair, and democratic society, and a right that many think that we already have. An updated Voting Rights Act would ensure that such an amendment would be enforced. This is not a partisan issue. Creating a system that allows for open and guaranteed electoral contests provides an environment in which the voters can have the freedom to choose which vision they truly agree with, without external distractions obscuring the democratic process.