A Right to Vote

Amazingly, the Constitution fails
to guarantee the most basic of Democratic rights

by Jamin B. Raskin

The American Prospect magazine, August 2001

Of everything we learned about American politics from the Supreme Court's ruling in Bush v. Gore last December, nothing was more important than the Court's insistence that the people still have "no federal constitutional right to vote." We (the people) have only the voting privileges our states choose to grant us. If the Florida legislature wishes to select presidential electors without public input, the people shall not stand in the way.

More than presidential elections are at stake here. Several weeks before Bush v. Gore, for example, the Supreme Court upheld a 2-1 federal-district-court decision that rejected an equal-protection attack on the denial of voting rights and congressional representation to the more than half a million U.S. citizens who live in the District of Columbia. "The Equal Protection Clause does not protect the right of all citizens to vote," the lower court ruling stated, "but rather the right 'of all qualified citizens to vote."' Thus two Clinton-appointed federal judges overruled the senior judge on the panel- Louis Oberdorfer, a Jimmy Carter appointee-and found that however "inequitable" the condition of D.C.'s residents may be, simply being subject to federal taxation and military conscription does not confer on Washingtonians a right to vote and to be represented in the Senate and the House or other governing institutions.

This may be a conservative reading of the Constitution, but it is black-letter law. True, the Constitution contains specific, hard-won language in the 15th and 19th Amendments that forbids discrimination in voting on the basis of race or sex. But these prohibitions don't establish a universal right to vote. Thus, Congress cannot selectively disenfranchise women in the District of Columbia but can, and does, render all of its residents voiceless in Congress by denying them representation in the House and Senate. The Florida legislature may not (theoretically, anyway) dismiss only the votes of African Americans; but as the Supreme Court kindly reminded us in Bush v. Gore, it can dismiss everyone's votes. Likewise, Florida cannot selectively deny African-American ex-convicts the right to vote in state and federal elections, but it disenfranchises all ex-offenders-some 400,000 of them.

The nation's tolerance for disenfranchisement in the twenty-first century is quite exceptional. The constitutions of at least 135 nations-including our fellow North American countries, Canada and Mexico-explicitly guarantee citizens the right to vote and to be represented at all levels of government. In fact, every new constitution adopted over the past decade makes the right to vote the very foundation of government.

Constitutional silence on a basic right to vote leaves the United States in miserable, backward company. 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. This sin of omission violates-to the extent that anyone cares-the International Covenant on Civil and Political Rights and numerous other international conventions inspired by the democratic triumph over totalitarianism in World War II.

It is time for American progressives to engage in serious constitutional politics on behalf of the right to vote. This is the only way to redeem the chaos of the 2000 presidential election and to begin to ensure that such an assault on democracy will never be repeated. Consider this proposal for a 28th Amendment:

SECTION 1. Citizens of the United States have the right to vote in primary and general elections for President and Vice President, for electors for President and Vice President, for Representatives and Senators in the Congress, and for executive and legislative officers of their state, district, and local legislatures, and such right shall not be denied or abridged by the United States or any State.

SECT I ON 2. The right of citizens of the United States to vote and to participate in elections on an equal basis shall not be denied or abridged by the United States or any State on account of political-party affiliation or prior condition of incarceration.

SECTION 3. The District constituting the seat of Government of the United States shall elect Senators and Representatives in the Congress in such number and such manner as it would be entitled if it were a State.

SECTION 4. The Congress shall have power to enforce this article by appropriate legislation.

A campaign for such an amendment would give coherence and energy to the scattered efforts across the country to reform the anachronistic, malleable electoral structures that exist in literally thousands of self-regulated jurisdictions. The movement behind the amendment would help sweep away not only disenfranchisement but reactionary partisan and sectional opposition to a number of democratic reforms: the push to upgrade and equalize voting technology and machinery, the effort to require equal and adequate funding of voting systems, and unsung efforts by third parties and independents to end discriminatory practices against candidates and voters based on party identification. (In many states, "major party" candidates automatically appear on the ballot while "minor party" candidates must collect tens of thousands of signatures to secure the right to compete. Along similar lines, the Supreme Court in 1998 upheld the partisan gerrymandering of government-run candidate debates.)

Instead of treating these seemingly disparate causes as a patchwork of local grievances, a right-to-vote amendment would elevate the agenda of electoral reform to a matter of national self-definition and fundamental constitutional values. The reason that the Bush v. Gore decision- that unthinkably radical statement about the urgent need for absolute equality of voting procedures and standards across county lines-won't work in these other cases can be found in the disclaimer appended by the Supreme Court's conservative majority: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Like Cinderella's dress, the conservatives' gallant defense of voting rights after last year's presidential election turned to rags at midnight.

In Yale Law School Professor Bruce Ackerman's phrase, "constitutional moments" don't come around all that often, so it is crucial to seize the political opportunity created by the continuing scandal of the 2000 election. But even when the time is right for change, reformers face hard choices.

In this case, the biggest headache is the electoral college. A deliberately undemocratic institution that made the popular-vote loser (George W. Bush, by more than half a million votes) the president of the United States, the electoral college is an international embarrassment. Since the nation's founding, it has entrenched the power of the slave states (four of the first five presidents were slave masters), white supremacy (throughout the twentieth century, southern states ran regional candidates and manipulated the electoral college to thwart the civil rights movement), and now the Republican electoral-college coalition, which represents a minority of voters nationally and a much smaller minority of the people. George W. Bush took every single electoral-college vote in the South and found a majority of his electoral-college votes there. Meanwhile, the majority of African Americans, more than 20 million, live in the South and gave A1 Gore better than go percent of their vote. Yet because of the winner-take-all method of distributing electoral-college votes, black votes in the South-even when counted-had zero impact on the election.

In a more rational world, abolition of the electoral college would be a key part of a 28th Amendment. But too many states and senators buy in to the myth that the electoral college helps them. It is extremely unlikely that even a simple majority of states would ratify an amendment abolishing the electoral college, much less the 38 required constitutionally. Only a handful of senators, including New York Democrat Hillary Clinton, have voiced support for the idea; and the Senate, where small states hold great power, will be a long time coming around on the issue. As outrageous as the situation is, it does not make sense to load down a right-to-vote amendment with this kind of baggage. Few things would stop this amendment, but the electoral college is one of them. That issue's time will come.

Some may wonder about the wisdom of tackling the disenfranchisement of Washingtonians and ex-convicts. But these battles of basic principle are eminently winnable. Public-opinion polls show that commanding majorities of the people favor giving residents of Washington, D.C., equal voting rights in Congress, and the rallying cry of "No taxation without representation" has persistent and broad cross-partisan appeal.

The amendment would not restore rights to incarcerated citizens-only to those who have already served their time and been released. Disenfranchisement of 1.4 million citizens, disproportionate numbers of whom are people of color, makes no sense. It drives ex-offenders away from political participation and civic belonging precisely at the moment they need to be encouraged and invited back into mainstream society. Most states already extend voting rights to this group and have crime rates no higher than the 13 states that turn a period of former incarceration into a permanent civic disability. Americans are fair-minded people and most would be shocked to learn that one in three African-American men has permanently lost the vote in Florida because of a prior felony conviction. A provision protecting former inmates' voting rights would have a good chance to make it through Congress and be adopted by the states.

It now falls to the people to bring the U.S. Constitution into line with the fundamental tenets of American political thought that emerged in the aftermath of the modern civil rights movement. As Robert P. Moses and Charles Cobb tell us in their important new book Radical Equations, the concept of "one person, one vote" in the early 19605 gave "Mississippi sharecroppers and their allies" a principle of "common conceptual cohesion" that was taken up by the Justice Department and then embraced by the Warren Court in the redistricting cases. As Justice Hugo Black put it in 1964, "Our Constitution leaves no room for classification of people in a way that unnecessarily abridges [the right to vote]."

But universal suffrage, a radical axiom established by the blood and sweat of civil rights activists in the South, has steadily eroded on the conservative Rehnquist Court's watch. Over the past decade, the Supreme Court has dismantled congressional districts composed mostly of African Americans or Hispanics-districts brought into being by the Voting Rights Act of 1965-and in the course of doing so has inscribed into law a presumption that whites shall be in the majority. It has allowed states to deny voters the right to "write in" the candidates of their choice. And it has upheld state laws that ban "fusion" and thus deny new political parties the capacity to build by "cross-nominating" candidates and creating multiparty political coalitions.

The principles of universal suffrage and democracy now lie in tatters. Yet the American movement for "one person, one vote" has traveled around the world, from Poland to South Africa. The United States must now catch up with its own legacy. We must disprove the French observation, much deployed after the 2000 election, that the Americans have no antiques-except, of course, for the Constitution.

The political question is whether progressives, accustomed to fighting off countless proposed amendments by the right on issues like school prayer and flag desecration, can overcome their knee-jerk suspicion of all constitutional changes. Many liberals treat the Constitution like an untouchable religious text and the republic's founders as omniscient. This is ironic, for we have traditionally understood that the original Constitution was deeply compromised by white supremacy and fear of popular democracy. Many of the amendments enacted since the founding are suffrage amendments championed by progressives-most recently, the 23d Amendment (adopted in 1961), which gave residents of Washington, D.C., votes in the presidential electoral college; the 24th Amendment (1964), which banned poll taxes; and the 26th Amendment (1971), which extended the vote to 18-year-olds. Meaningful democratic politics requires an aggressive constitutional politics. Let them come at us with proposals about the flag, school prayer, and the Ten Commandments. We can return fire with the constitutional right to vote, which in a democracy must take moral precedence and logical priority over everything else.

Under Article V of the Constitution, an amendment requires either a two-thirds vote in both houses of Congress followed by ratification by three-fourths of the states or passage in a constitutional convention called upon the application of the legislatures of two-thirds of the states followed by ratification by three-fourths of the states. Starting with the League of Women Voters, the secretaries of state, the NAACP, journals of opinion, the labor movement, political parties that are willing to place democratic principle above factional designs, and the state legislatures, we should reach out to our fellow citizens and take the irresistible case for a voting-rights amendment to the people. Certain progressive members of Congress already see the logic of such an effort. Democratic Congressman Jesse Jackson, Jr., of Illinois has been arguing eloquently for a whole series of new constitutional rights, including health care and housing. His broader agenda is more complicated, but his spirit is perfect for the new century: We have to stop treating the Constitution like a fragile heirloom hidden away in the attic. And we must begin by providing what was missing when the Constitution was first drafted-the right of the people to vote and, therefore, to govern.

JAMIN B. RASKIN is a professor of constitutional law at American University and the director of its Appleseed Project on Electoral Reform.

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