Adding the right to vote to the Constitution

Oct. 21, 2014, 2:28 PM UTC

By Steve Benen, Steve Benen

The Bill of Rights, as the name implies, lists a wide variety of privileges of citizenship that cannot be taken from Americans without due process. You have the right to free speech, you have the right to bear arms, you have the right to a fair trial, etc. The right to vote, however, isn't mentioned.

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 problem -- at least since the Jim Crow era, there was no systemic national campaign underway to undermine voting rights. 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 about changing the Constitution to guarantee what is arguably the most fundamental of all democratic rights.

Matt Yglesias had a good piece on this yesterday.

When the constitution was enacted it did not include a right to vote for the simple reason that the Founders didn't think most people should vote. Voting laws, at the time, mostly favored white, male property-holders, and the rules varied sharply from state to state. But over the first half of the nineteenth century, the idea of popular democracy took root across the land. Property qualifications were universally abolished, and the franchise became the key marker of white male political equality. Subsequent activists sought to further expand the franchise, by barring discrimination on the basis of race (the 15th Amendment) and gender (the 19th) — establishing the norm that all citizens should have the right to vote. But this norm is just a norm. There is no actual constitutional provision stating that all citizens have the right to vote, only that voting rights cannot be dispensed on the basis of race or gender discrimination. A law requiring you to cut your hair short before voting, or dye it blue, or say "pretty please let me vote," all might pass muster. And so might a voter ID requirement. The legality of these kinds of laws hinge on whether they violate the Constitution's protections against race and gender discrimination, not on whether they prevent citizens from voting. As Harvard Law professor Lani Guinier has written, this "leaves one of the fundamental elements of democratic citizenship tethered to the whims of local officials."

All of which leads to the question about a constitutional amendment, making the affirmative right of an adult American citizen to cast a ballot explicit within our constitutional system.

For some in Congress, this isn't just an academic exercise. TPM had this report back in May.

A pair of Democratic congressmen is pushing an amendment that would place an affirmative right to vote in the U.S. Constitution. According to Rep. Mark Pocan (D-WI), who is sponsoring the legislation along with Rep. Keith Ellison (D-MN), the amendment would protect voters from what he described as a "systematic" push to "restrict voting access" through voter ID laws, shorter early voting deadlines, and other measures that are being proposed in many states. "Most people believe that there already is something in the Constitution that gives people the right to vote, but unfortunately ... there is no affirmative right to vote in the Constitution. We have a number of amendments that protect against discrimination in voting, but we don't have an affirmative right," Pocan told TPM last week. "Especially in an era ... you know, in the last decade especially we've just seen a number of these measures to restrict access to voting rights in so many states. ... There's just so many of these that are out there, that it shows the real need that we have."

The Pocan/Ellison proposal would stipulate that "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."

The proposed amendment did not exactly catch fire on Capitol Hill: after its introduction, the proposal picked up 25 Democratic co-sponsors; en route to being entirely ignored by the political establishment and the House Republican leadership. There's still no companion bill in the Senate.

I would assume that Pocan and Ellison aren't surprised by the reception, but as the "war on voting" intensifies, and the Supreme Court's support for voting rights wanes further, it's not hard to imagine the demand for their measure growing.

Indeed, a year ago, Norm Ornstein, one of the Beltway's most respected political scientists, made the case for precisely this kind of constitutional amendment.

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.

That shift in balance is of particular interest. As Matt noted in his piece, "A constitutional right to vote would instantly flip the script on anti-fraud efforts. States would retain a strong interest in developing rules and procedures that make it hard for ineligible voters to vote, but those efforts would be bounded by an ironclad constitutional guarantee that legitimate citizens' votes must be counted. A state that wanted to require possession of a certain ID card to vote, for example, would have to take affirmative steps to ensure that everyone has that ID card, or that there's a process for an ID-less citizen to cast a ballot and have it counted later upon verification of citizenship."

I'm generally skeptical of proposed changes to the Constitution, but that skepticism wanes in the face of a sweeping voter-suppression campaign, unlike anything in my lifetime, that shows no signs of abating.

Don't be surprised if, in the near future, candidates for Congress and the White House are confronted with a simple question: is it time to add the right to vote to the Constitution?