True or False: The US Constitution includes among our rights, the right to vote. Or, what is the Bauer-Ginsburg Commission going to do about those long lines at the polls?
True or False: The US Constitution includes among our rights, the right to vote.
The history of the right to vote in the U.S. is just that -- a history. Although the U.S. Supreme Court has found the right to vote an implicit right in our Constitution, no where in the Constitution can we find a clear and simple statement such as "All citizens of the U.S. age 18 or older have the right to vote." Instead, we have a patchwork of statements that say much about the changing concept of what we mean when we say "we the people."
Several Amendments address the right to vote. Their theme is who cannot have their right taken away, in constitutional language read, "denied or abridged." Here are the relevant sections of two post-Civil War amendments that addressed the right to vote:
- Amendment 14 (abridged [!] by me): "…[W]hen the right to vote at any election for the choice of electors … is denied to any of the male inhabitants of such State … the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
- Amendment 15:" 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, color, or previous condition of servitude."
The 19th amendment adds sex (gender) to the list of qualities of a person that cannot be used to hinder the right to vote, and the 26th lowers the chronologic age for voting from 21 to 18.
In this century, we might consider new amendments. Perhaps we need an amendment that would prohibit denying or abridging the right to persons who do not have a valid state ID, or who are residents of a long term care facility? In such facilities, the staff exert substantial control over which residents can vote, control that resembles the kinds of offenses that led to the Voting Rights Act. We might also consider amendments that address many of the nettlesome barriers set up to abridge the right to vote, such as especially annoying requirements to register and file for an absentee ballot weeks prior to elections.
Or we might simply amend the Constitution to say that all citizens over 18 have the right to vote. Such an amendment might have avoided the Supreme Court's majority opinion in Bush v Gore that halted the recount because, among the court's reasons, the court argued that "the individual citizen has no federal Constitutional right to vote for electors for the President of the United States." It was a nuanced argument based on our peculiar electoral college system wherein the voters of each state elect electors who then vote for our President. It is an argument that would not have been possible if our Constitution had a clear and affirmative right to vote.
The Constitution includes among our rights, the right to vote -- True or False? True enough, perhaps. On the matter of the right to vote, our Constitution is a patchwork of statements and clarifications of who cannot have their right taken away. This patchwork reveals the difficult history of what we mean when we say "we the people."
We the people just had a hotly contested presidential election. It ended with a vote that, in too many places, required people waiting hours in line to vote. In his victory speech, President Obama noted this, and then he delivered what was likely an unscripted remark: "We're gonna have to do something about that."
Indeed we are. Let's get to work and reform a system that desperately needs to be freed from politics, that needs quality measures such as reducing the time spent in line waiting to vote, creating clear and coherent and readable ballot forms, and giving people time to vote. A great democracy deserves a great voting system.
Click here to read a law review article I wrote that examines the challenges of protecting older adults' voting rights and proposes ways to address them. It was part of a special issue of the McGeorge Law Review dedicated to voting rights.
Below is a pdf of an LDI Issue Brief that summarizes the problems the current voting system creates for older adults and proposes solutions.
UPDATE -- 23 January 2013. President's Obama's Second Inaugural Address included a call to respect and enforce our right to vote:
"It is now our generation’s task to carry on what those pioneers began. ...Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote."
With these words, our president has engaged the great task of making our electoral system as great as our democracy. It is simply unacceptable that people wait for hours in line to vote. It is simply unacceptable that politicians tinker with the rule of voting to rig the outcome to their side. Now is the time to establish quality measures for voting. The next few years hold great promise for we the people and our enduring effort to form a more perfect union.
UPDATE -- 15 February 2013. President Obama has followed through on his election night speech and second inaugural addess -- in his State of the Union Address, he announced:
“Defending our freedom, though, is not just the job of our military alone. We must all do our part to make sure our God-given rights are protected here at home. That includes one of the most fundamental rights of a democracy: the right to vote. When any American, no matter where they live or what their party, are denied that right because they can’t afford to wait for five or six or seven hours just to cast their ballot, we are betraying our ideals.
“So tonight, I’m announcing a nonpartisan commission to improve the voting experience in America. And it definitely needs improvement. I’m asking two long-time experts in the field -- who, by the way, recently served as the top attorneys for my campaign and for Governor Romney’s campaign -- to lead it. We can fix this, and we will. The American people demand it, and so does our democracy.”
His remarks show a deep engagement in the troubled history of the right to vote in America, which we should expect from a teacher of constitutional law.
His remarks included an illustrative story:
“We were sent here to look out for our fellow Americans the same way they look out for one another, every single day, usually without fanfare, all across this country. We should follow their example…. We should follow the example of a North Miami woman named Desiline Victor. When Desiline arrived at her polling place, she was told the wait to vote might be six hours. And as time ticked by, her concern was not with her tired body or aching feet, but whether folks like her would get to have their say. And hour after hour, a throng of people stayed in line to support her -- because Desiline is 102 years old. And they erupted in cheers when she finally put on a sticker that read, ‘I voted.’”
Ms. Victor was, as is the custom now, seated beside the First Lady in the House Gallery.
SOTU Theatrics aside, it is notable that he picked an elderly woman. The elderly are perhaps the largest portion of the disabled population.
We the people now have an opportunity to make our union more perfect. As the Bauer-Ginsburg Commission sets to work, it has the advantage of drawing on a substantial body of evidence that, as NPR news quoted David Becker, director of the Election Initiatives project at the Pew Charitable Trusts, "Long lines are a big problem, but they're not the source of the problem. They are a symptom of greater problems in the system."