There Is No Constitutional Right To Vote……But Shouldn’t There Be?

“In the era of voting wars, the right to vote is itself subject to continued partisan, regional, and racial conflict.  It is 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.”  (Jonathan Soros & Mark Schmitt, “The Missing Right:  A Constitutional Right to Vote,” Democracy:  A Journal of Ideas, Spring 2013. 

It will probably come as a surprise to most Americans that there is no affirmative right to vote in the U.S. Constitution as is the case, for example, with the 1st Amendment’s express affirmation of citizens’ constitutional rights relative to speech, press, religion, assembly and petition—rights which are fundamental to the maintenance of a liberal democracy.

Yet, we speak often of the right to vote in reverential terms and with the belief that it is as fundamental a right as those rights ensconced in the Constitution.  Consent of the governed is a meaningless phrase if there is no mechanism (via popular vote) by which the citizens both individually and collectively can grant or withdraw their consent.

The history of the franchise in this country is one of an increasingly inclusionary process, which over time has expanded the pool of citizens eligible to vote, a pool initially limited to white males who were possessed of property amounting to a certain value.  A characteristic of this inclusionary process has been not so much the granting of the right to vote to previously disenfranchised classifications of persons (though we usually phrase it in these affirmative terms) as it has the removal of one after another of the barriers that by law and tradition had prevented those persons from voting.

Federal constitutional amendments have played a leading and not inconsequential role in that process, notwithstanding the fact that as part of our federal system, state governments have played a major role in determining who was and was not eligible to vote.

Consider the 15th, 19th, 24th and 26th Amendments, which expanded the franchise respectively to blacks, women, those unable to pay a poll tax, and those who were between ages 18 and 21 years.  In each of these instances, the language of the amendments did not affirmatively grant the right to vote, but instead removed an obstacle to voting using the following phrase:  “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….”  (The 23rd Amendment can be said to have affirmatively granted the right to vote in presidential elections to residents of the District of Columbia by allocating to the district three presidential electoral votes.

But that is exclusively within the federal jurisdiction, and the voting there is not affected by state actions.)  These amendments, because of the nature of our federal system, did not legally preclude the possibility that the right to vote could be denied citizens for various reasons, but stated that the denial of the right to vote cannot be based on account of race, sex, the paying of a poll tax, and the voter’s age being between the ages of 18 and 21.

As noted above, qualifications for voting and causes for disqualification have historically been determined by each state.  Thus, states were in a position to either inhibit or facilitate the expansion of the pool of eligible voters, the latter being what was anticipated with the adoption of each of the four amendments.  For three of those amendments, implementation proceeded apace.

However, in the South especially, the realization of the goal of the 15th Amendment—that 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—was essentially held in abeyance for decades by a body of state laws and administrative procedures which, for black citizens, had the effect of returning things with respect to voting rights and access to the franchise to the status quo ante.  Implementation of the 15th Amendment not only did not proceed apace, but any progress that had been made in the brief period between the adoption of the 15th Amendment and the end of Reconstruction was systematically and deliberately rolled back.

That situation was not substantively and meaningfully addressed until the mid-1960s with the adoption of the Voting Rights Act, an act which finds its constitutional basis in Section 2 of the 15th Amendment, to wit:  “The Congress shall have power to enforce this article by appropriate legislation.”  It took Congress almost 100 years to get to that point, but since its adoption, the Act has been very successful in fulfilling the purpose of the 15th Amendment of giving previously disenfranchised groups access to the ballot.

Two recent occurrences, however, have cast a pall over, and have the potential to mitigate, the hard fought-for progress in extending the franchise.  The first of these is the recent US Supreme Court decision holding a key part of the Act, Section 4, unconstitutional.  There is the fear, and I think it not entirely unfounded, that as other parts of the Act are litigated and rise on appeal to the Supreme Court (given the current makeup of the Court), those parts of the Act will be struck down as well, thus eventually vitiating the Act.

The other occurrence is the adoption by many states of voter ID laws, adopted to guard against putative in-person voter fraud.  But the disparate impact of these laws calls into question the motives for them, and the paucity of evidence of in-person voter fraud (of which there are so very few cases that the incidence of this type of fraud is infinitesimal) effectively renders the argument for them moot.  Whether well or ill motivated (a discussion for another day), the disparate impact of these laws is likely to manifest itself in a lower rate of participation by the affected groups, the overwhelming majority of whom are otherwise legitimate voters.

If the sanctity of the ballot and the right to vote are are of real concern, as many put forward as a reason for the voter-ID laws, they deserve clear constitutional protection and codification as a constitutional right.  On that there should be consensus.