The Nation
November 19, 2001
For a Voting Rights Amendment
By Jesse Jackson Jr.
The 2000 presidential election, with more than 105 million votes cast,
involved: five weeks of political and legal maneuvering; what many view as an
arbitrarily imposed Supreme Court constitutional crisis; and a final
five-to-four ruling by ideologically driven conservative Justices on the Supreme
Court who essentially selected their favored candidate President of the United
States. The final media consortium report confirms this. The two parties'
political and legal tactics aside, if genuine democracy had prevailed and all
the votes had been counted, Al Gore would have been narrowly elected President.
Upon closer examination, we also discovered that our voting infrastructure is
broken. Thus, the nation learned about chads--whether pregnant, dimpled, hanging
or swinging. The pattern across the country revealed confusing ballot designs.
The best machines with the lowest error rates were generally located in the
wealthier and whiter areas, while the worst machines with the most mistakes were
disproportionately located in areas with the poorest people and the highest
number of people of color, especially African-Americans. In Florida precincts
that were at least four-fifths African-American there were more than three times
as many rejected votes as in predominantly white precincts, even after
accounting for differences in income, education and voting technology.
Additionally, Florida's county election administrators used inconsistent
methods of counting votes. Electronic scanners rejected ballots clearly marked
with pencils instead of pens. Scanners also discarded ballots marked for two
different candidates, or properly punched ballots that also had a candidate's
name written on it. The scanner saw both ballots as erroneous double votes and
rejected them, even though in many instances the voter's true preference was
clearly indicated. In Florida, while many voters' choices were easily
discernible on ballots rejected by optical scanners, some election officials
never bothered to look at the actual ballot if the machine rejected it.
While the lion's share of attention was focused on Florida--because of the
pivotal role it played in the election's outcome--virtually every state's
election system would have revealed similar fault lines if given thorough
scrutiny. My home state of Illinois was the worst.
A year ago Democrats were outraged by this mess, and the American people
generally seemed concerned that the instruments of their democracy were sorely
in need of repair and reform. But after a dozen national task force reports and
recommendations, several Congressional hearings and legislative proposals, a US
Civil Rights Commission study and hundreds of state legislative proposals, we
find ourselves essentially in the same position as on November 7, 2000. Only a
nationally embarrassed Florida completely overhauled its voting system. New York
City still votes on forty-year-old lever machines.
The United States advocates for democracy around the world. We sometimes even
link economic or military assistance to the establishment of democracy in a
foreign land. Can you imagine the American people and our government's response
to a country that said it had established democracy and conducted a democratic
election, but in a controversy over ballots could not provide us with official
election results? Yet that is exactly the state of American democracy. There are
no "official" results in our presidential campaigns, and the various
sources of "unofficial" results vary by as much as 200,000 votes.
Given the margin of victory claimed by Bush in Florida (537 votes), and Gore
nationally (539,000 votes), a 200,000 variation in national vote totals should
be of major concern.
All true electoral reformers are saddened, frustrated and discouraged that
virtually no progress in changing the system has occurred. Prior to September
11, blame was placed on voter apathy--no one was interested in engaging in the
dull process of fixing "election mechanics." Now election reformers
believe such potential change has been buried beneath the World Trade
Center--that both the twin towers and voting reform have been brought down by
terrorists. But this is not the true source of the inaction.
The fundamental problem with proposals for electoral reform is totally
unrelated to November 7, 2000, or September 11, 2001. Every independent study,
Congressional hearing and good legislative election reform proposal I have
seen--including those from liberals and progressives, which I support and am a
co-sponsor--is premised on the Tenth Amendment. The reason they will fail to
solve our fundamental voting problem, even if they succeed legislatively, is
because of their underlying ideological assumption--that voting is a state
function, not a universal human or federal right.
Therefore, even if Congress passes legislation establishing national
standards for voting technologies and procedures, and adequately funds them, no
state is under a constitutional obligation to adopt the changes or accept the
funds. Based on the Tenth Amendment, states can still reject reforms and
continue down the current state-centered election path.
Many state political parties, both Democratic and Republican, see the current
system as working in their self-interest. But which system makes the most sense
for the public's interest? One modern electoral system with consistent national
standards? Or a bureaucracy of fifty state, 3,067 county and thousands of
municipal election systems and standards--all separate and unequal?
Every sound idea for improving or rationalizing our voting processes and
infrastructure--using sophisticated and nationally consistent ATM-style machines
in every precinct in America; making sure all votes are tabulated and included,
establishing an official vote total before a presidential winner can be
declared; eliminating or reforming the Electoral College so that the people's
popular vote elects electors, not a potentially arbitrary vote in a state
legislature, which, under current constitutional law, can ignore the people's
vote (as the Florida legislature was prepared to do in 2000); the federal
government picking up the tab for a unified rational national election
system--will be stymied because of the ideologically driven concerns and states'
rights limitations of the Tenth Amendment.
Thus, federal legislation around electoral reform (or healthcare,
education, housing or equal rights) will always be subject to the limitations of
states' rights, local control and privatization. Some states will voluntarily
reform and some will not. Contrary to the American people's desire, Congressman
Tom DeLay used this same ideological orientation of states' rights, local
control and privatization to fight the federal takeover of airline security.
This constitutional view finds its origins in the Democratic Party's
ideological founder, Thomas Jefferson. Jeffersonian democracy is based on
limited government, states' rights, local control, volunteerism and
privatization. Democrats celebrate this philosophy every year at
Jefferson-Jackson Day Dinners around the nation, but especially in the South.
Slavery (without using the term) was enshrined in the Constitution in five
different places at the Philadelphia Convention in 1787 and was protected by the
philosophy of states' rights, local control, volunteerism and privatization. The
nation had to pass a Thirteenth Amendment in order to overcome both the
Tenth Amendment and slavery. African-Americans also needed a Fifteenth Amendment
to legally overcome the Tenth Amendment and discrimination in voting. And women
overcame the Tenth Amendment and voter discrimination on the basis of sex with
the Nineteenth Amendment. Only an affirmative Voting Rights Amendment for all
Americans can overcome the limitations of the Tenth Amendment with respect
to our democracy's electoral processes. The only thing that can overcome the
limitations of the Tenth Amendment with respect to voting is to add a Voting
Rights Amendment to the Constitution.
Even with the addition of these subsequent amendments, the Tenth Amendment
has hampered their full implementation and progress for African-Americans and
women. It was also Jefferson's Tenth Amendment views that entangled states'
rights and slavery with the Democratic Party; it's what caused eleven
Confederate states, led by the Democratic Party, to leave the Union; it underlay
the Democratic Party's sabotage of Reconstruction; it left the freedmen
unprotected from Democrats after the 1877 Tilden-Hayes Compromise; it supported
the Democrat-led legal idea of "separate but equal" in Plessy v.
Ferguson; it established and sustained the Democrat-supported Jim Crow
segregationist South; it led the Southern Democratic Party to be the chief
resister of Brown v. Board of Education after 1954; and this philosophy
undergirds today's predominantly conservative Republican Party and conservative
Democrats.
The old conservative slavery and segregationist states' rights, local
control, volunteerism and privatization Democrats are today's new conservative
states' rights, local control, volunteerism and privatization Republicans. And
because of the continuing influence of conservative, mainly Southern, Democrats,
today's Democratic Party still tries to fit the nation's reality into
Jefferson's limited-government rhetoric.
Most Americans will be shocked, appalled and outraged to learn that their
Constitution does not grant them the right to vote. Yet that was the major
lesson to be learned from Bush v. Gore. Even though the right to vote is
the supreme right in a democracy, the Supreme Court in Bush v. Gore told
Americans--in their questioning of lawyers David Boies and Theodore Olson, and
in their final ruling--that there is no explicit fundamental right to suffrage
in the Constitution.
William Rehnquist and the "court of five" who decided the 2000
election by one vote said, "The individual citizen has no federal
constitutional right to vote for electors for the President of the United
States..." [Bush v. Gore, 531 U.S. 98 (Dec. 12 2000) (per curiam)].
It's the reason the Florida legislature could contemplate sending its own set of
electors to Congress if it had lost in the Supreme Court. It could have ignored
6.1 million Florida voters, and still have been acting within the parameters of
the US Constitution. As District of Columbia Councilmember Kevin Chavous and
American University constitutional law professor Jamin Raskin said in an August
26, 2001, Washington Post article: "'One person, one vote' is the
gold standard for democracy all over the world. The constitutions of at least
135 nations--from Angola and Argentina to Zambia and Zimbabwe--explicitly
guarantee the right of the people to vote and to be represented at all levels of
their governments. But our constitutional silence leaves us in the company of
Azerbaijan, Indonesia, Iran, Iraq, Jordan, Libya, Pakistan, Singapore . . . all
of which leave voting rights out of their constitutions."
The Rehnquist Supreme Court granted chads "equal protection" under
the Fourteenth Amendment (quite a shocker for this court to rely on the
Fourteenth Amendment for anything), but made it clear that the American voter
has no inalienable right to vote. (Compare this to Attorney General John
Ashcroft's repeated public statements that the Constitution grants individual
Americans the right to a gun. Thus, many Americans believe they have a
constitutional right to a gun, but are unaware they have no constitutional right
to vote.)
We need to amend our Constitution because it was originally designed to allow
only white male property owners to vote. We need a right to vote amendment
because, in Bush v. Gore, the Supreme Court looked at the Constitution's
Fourteenth, Fifteenth, Nineteenth and Twenty-sixth amendments--then looked at
the Tenth Amendment through the eyes of a strict constructionist--and concluded:
Since there is no right to vote in the US Constitution, what does the state
statute say? The state statute said Katherine Harris is in charge of the
election, and there was a time deadline of December 12 to count the votes. So,
unless all the votes can be counted in the next two hours, Bush is President.
Under the assumptions of Jeffersonian democracy and the constraints of the
Tenth Amendment, Congress has not been given the power by the people to make
voting a reality for every American. The Democratic Party--caught between the
vice of this Jeffersonian tradition of limited government and states' rights,
and a frustrated base of African-Americans and Jewish voters who were
politically disenfranchised in Florida--offers only legislative reform programs
and block grants to states that respect the Tenth Amendment. Thus, its base
constituencies will remain agitated and American democracy will remain
profoundly flawed.
Democrats proclaim they want a broad-based, grassroots movement in order to
improve America. Well, constitutional amendments require two-thirds of the US
House and Senate, and three-quarters of the state legislatures. Only an
extremely broad-based grassroots movement can add an amendment to our
Constitution. Yet no aspiring national Democratic leader, nor the Democratic
Party itself--despite having the White House stolen away--looks prepared to lead
the nation beyond Jefferson's rhetoric on this most fundamental issue in a
democracy--the right to vote.
But there may be some hope and a light at the end of the tunnel. Nothing
seems to bring about voting amendments quite like a war. The Civil War brought
us the Fifteenth Amendment. World War I resulted in the Nineteenth Amendment.
And the Vietnam War gave us the Twenty-sixth Amendment. Terrorism on the World
Trade Center and anthrax in our mail have been described by President Bush and
others as an attack on our freedom and democracy. Thus, the war on terrorism may
give us the opportunity to both appreciate and critique our democracy, including
adding its biggest missing piece--a Twenty-eighth Amendment to our Constitution
granting us the explicit fundamental right to vote.
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