The American
Prospect
A
Right to Vote By Jamin B. Raskin August 27, 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
their state's 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.
Section 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, wealth 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. Nothing in this Article
shall be construed to deny the power of States to expand further the
electorate.
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 Al Gore
better than 90 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 1960s 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.
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