Washington Post
Endangered
Suffrage By David S. Broder September 17, 2003
To the delight of some and the dismay of others, the people of
California are preparing to vote, sooner or later, on removing their
governor. Meanwhile,a handful of scholars are trying to stir a
debate on whether Americans should have the right to elect their
president.
No, this is not some academic argument, unrelated to anything
in the real world. In the summer issue of Political Science
Quarterly, Alexander Keyssar, a professor of history and social
policy at Harvard's Kennedy School of Government, reminds us that
during the controversial aftermath of the 2000 election, that
presumed right was seriously questioned.
As he notes, the leaders of the Republican majority in
the Florida legislature publicly asserted that if the outcome of the
Florida voting were still in dispute on Dec. 12, the deadline for
naming the state's presidential electors, the legislature itself
would make the decision whether Florida's decisive votes would make
George Bush president. They cited the authority granted in Article
II, Section 1 of the Constitution, which says that "each state shall
appoint in such manner as the legislature thereof may direct, a
number of electors" to cast the state's ballots for president.
The legislature did not have to follow through,
because the U.S. Supreme Court settled the issue by halting the
vote-counting and declaring Bush the winner. But in the course of
the hearings before the high court, Justice Antonin Scalia told the
lawyers representing Al Gore that "in fact, there is no right of
suffrage under Article II." In the majority opinion on Bush v. Gore,
the court declared that any state, "after granting the franchise in
the special context of Article II, can take back the power to
appoint electors."
Keyssar's conclusion is that if the Florida
legislators had decided to resolve the muddled situation on their
own, "the Supreme Court would have backed them up."
Cynics might say that such an outcome would have been
no more partisan than the 5-4 decision of the Supreme Court. But
Keyssar's view, which I share, is that contemporary Americans would
react with disbelief and anger to the "extraordinary . . . assertion
that American citizens have no constitutional right to vote for
president."
His proposed solution: Adopt a one-sentence
constitutional amendment stating "All American citizens shall have
the right to vote for presidential electors in the state in which
they reside." For the first time, he says, that right would be
asserted in positive terms, not simply implied by the constitutional
language forbidding discrimination at the ballot box by virtue of
race or gender.
That seems a simple, straightforward proposal. But as
quickly emerged in a discussion at Barnard College, whose transcript
appears in the same journal, it may not be quite that easy.
Presumably the 18-year-old age qualification now in
the Constitution would remain. Perhaps the question of voting rights
for Puerto Ricans, who are citizens of the United States, would be
contingent on the island's becoming a state, rather than a
commonwealth. But what about the question of voting rights for
convicted felons?
That issue now agitates a number of states and is
viewed by some civil rights advocates as the next frontier of the
battle for an expanded suffrage. As Keyssar concedes, "It is
particularly easy to imagine opponents of a simply worded amendment
latching onto and making much of the fact that it would enfranchise
several million people who have committed crimes." But excluding
them in a constitutional amendment -- far more difficult to change
than state laws --would provoke opposition from civil rights groups.
All Keyssar can say is that "a national debate on the merits and
demerits of felon exclusions may be well worth provoking."
As a general rule, my view is that the handiwork of
the Founders is unlikely to be improved by any constitutional
amendment devised by the current generation of politicians or
political thinkers. I am deeply skeptical about proposals to abolish
the electoral college -- something that Keyssar favors but says it
is impractical to advocate.
But I remember being astonished at the reminder in
2000 that our votes for president count only if the legislature
chooses to count them. I don't think that is acceptable to most
Americans today, and I would hate to see the country's temper tested
in that way. |