The fight over the future of the Voting Rights Act, which celebrates its 50th anniversary tomorrow, is still very much underway, but for some voting proponents, the landmark law’s restoration isn’t the only goal.
There was a fair amount of chatter last year about a possible constitutional amendment, enshrining the right to vote into constitutional stone. It seemed like an issue ripe for a national debate during a presidential campaign, and yesterday, that began in earnest.
As he pitched himself to black voters in South Carolina Tuesday, Martin O’Malley called for a constitutional amendment to protect every American’s right to vote.“Many Americans don’t realize that the U.S. Constitution does not affirmatively guarantee the right to vote,” he said in an email to his supporters. “Passing a constitutional amendment that enshrines that right will give U.S. courts the clarity they need to strike down Republican efforts to suppress the vote.”
In this case, the governor isn’t pushing his own amendment, so much as he’s throwing his support behind an existing proposal introduced by Reps. Keith Ellison (D-Minn.) and Mark Pocan (D-Wis.). Their constitutional amendment states, “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.”
In the last Congress, this didn’t fare especially well. The proposal picked up 25 Democratic co-sponsors, but it was otherwise ignored. In the current Republican-led Congress, such a proposal stands no realistic chance of success.
But the debate over amendments nearly always takes time – years, not months – and as far-right voter-suppression tactics become a national scandal, O’Malley’s right to get the 2016 debate started on possibly changing the Constitution.
Revisiting our previous coverage, many Americans may be surprised to learn that the Constitution doesn’t already guarantee the right to vote. The document lists a wide variety of privileges of citizenship that cannot be taken from Americans without due process – the right to free speech, the right to bear arms, the right to a fair trial, etc. – but not the right to vote.
In fact, though the Constitution offers some relatively detailed instructions on voting for president through the Electoral College, the document has far less to say about the right of Americans to cast a ballot in their own democracy. There are amendments extending voting rights to freed slaves, women, and 18-year-olds, and poll taxes are prohibited, but there’s no additional clarity in the text about Americans’ franchise.
Up until fairly recently, that wasn’t considered much of a crisis, but in the Obama era, the Republican campaign to suppress the vote has included restrictions without modern precedent, which in turn has started a new conversation.
Norm Ornstein’s 2013 piece on the subject is worth revisiting.
We need a modernized voter-registration system, weekend elections, and a host of other practices to make voting easier. But we also need to focus on an even more audacious and broader effort – a constitutional amendment protecting the right to vote…. [T]he lack of an explicit right opens the door to the courts’ ratifying the sweeping kinds of voter-restrictions and voter-suppression tactics that are becoming depressingly common.An explicit constitutional right to vote would give traction to individual Americans who are facing these tactics, and to legal cases challenging restrictive laws. The courts have up to now said that the concern about voter fraud – largely manufactured and exaggerated – provides an opening for severe restrictions on voting by many groups of Americans. That balance would have to shift in the face of an explicit right to vote. Finally, a major national debate on this issue would alert and educate voters to the twin realities: There is no right to vote in the Constitution, and many political actors are trying to take away what should be that right from many millions of Americans.
O’Malley moved the conversation forward a step yesterday. Here’s hoping additional steps soon follow.