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FIGHTING FOR A
RIGHT TO VOTE CONSTITUTIONAL AMENDMENT
Position Paper Presented
At
The
Center For Voting & Democracy
"Claim Democracy
Conference"
By Congressman Jesse L. Jackson, Jr.
American
University's
Washington College of Law
Saturday, November 22,
2003
Most Americans believe that the
"legal right to vote" in our democracy is explicit (not just
implicit) in our Constitution and laws. However, our
Constitution only provides for non-discrimination in
voting on the basis of race, sex, and age in the 15th, 19th
and 26th Amendments respectively.
The U.S. Constitution
contains no explicit affirmative individual right to vote!
Even though the "vote of the people" is perceived as supreme
in our democracy - because voting rights are protective of all other
rights - the Supreme Court in Bush v. Gore constantly
reminded lawyers that there is no explicit or fundamental right to
suffrage in the Constitution - "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, 104
(2000)
Chief Justice William Rehnquist and Associate Justice
Antonin Scalia besieged Gore's lawyer with inquiries premised on the
assumption that there is no constitutional right of suffrage in the
election of a president, and state legislatures have the legal power
to choose presidential electors without recourse to a popular
vote. "In the eyes of the [Supreme] Court, democracy is rooted
not in the right of the American people to vote and govern but in a
set of state-based institutional arrangements for selecting
leaders." (Overruling Democracy - The Supreme Court vs. The
American People, By Jamin B. Raskin, p. 7)
If candidate
George Bush had lost in the Supreme Court in 2000, Florida's
Republican-controlled legislature was prepared to ignore the six
million popular votes cast in Florida. They were determined to
elect, select, choose, and hand pick their own "Bush presidential
electors" and send them to Congress for certification if
necessary. Thus, even if all votes had been counted and Al
Gore had won Florida's popular vote, and his electors had been sent
to Congress, under our current Constitution the Florida legislature
could have sent their slate of Bush electors to Congress and it
would have been perfectly legal - and a "strict constructionist" or
necessary constitutional interpretation - for Congress to have
recognized the Bush electors.
Only a Voting Rights Amendment
can fix these flaws in our Constitution.
The 10th Amendment to
the Constitution states: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the State, are
reserved to the States respectively, or to the people." Since
the word "vote" appears in the Constitution only with respect
to non-discrimination, the so-called right to
vote is a "state right." Only a
constitutional amendment would give every American an
individual affirmative citizenship right to
vote.
Without the constitutional right to vote,
Congress can pass voter legislation - and I support progressive
electoral reform legislation - but it leaves the "states'
rights" system in place. Currently, Congress
mostly uses financial and other incentives to entice the states to
cooperate and comply with the law. It's one reason there have
been so many problems with the recently passed Help America Vote
Act, and why many states still have not fully complied with the
law.
Our "states' rights" voting system is
structured to be "separate and unequal."
As we saw in the 2000 election, there are 50 states, 3,067 counties,
tens of thousands of cities, and many different machines and methods
of voting - all "separate and unequal."
There's ONLY
ONE WAY to legally guarantee "an equal right to vote" to
every individual American and that is to add a Voting Rights
Amendment to the Constitution!
The lack of basic political
rights for all Americans was made even clearer in Alexander v.
Mineta, a case to gain political representation for the
disenfranchised citizens in our nation's capitol, the District of
Columbia. Ignoring the democratic ideal of voting, the court
said, "The Equal Protection Clause does not protect the right of all
citizens to vote, but rather the right of all qualified
citizens to vote" (Alexander v. Daley, 90 F. Supp. 2d,
35, 66, emphasis added) "To be qualified, you must belong to a
`state' within the meaning of Article I and the Seventeenth
Amendment and must be granted the right to vote by the state."
(Overruling Democracy - The Supreme Court vs. The American
People, By Jamin B. Raskin, p. 36)
I believe that voting
is not only a democratic right, it is a human
right. That human right is not in our
Constitution! That's why I have proposed legislation to add a
voting rights amendment to the U.S. Constitution based on the
INDIVIDUAL RIGHT of all Americans to vote. It was introduced
in the U.S. House as House Joint Resolution 28. It reads as
follows:
Resolved by the Senate and House of Representatives
of the United States of America in Congress assembled (two-thirds of
each House concurring therein), That the following article is
proposed as an amendment to the Constitution of the United States,
which shall be valid to all intents and purposes as part of the
Constitution when ratified by the legislatures of three-fourths of
the several States:
`SECTION 1. All citizens of the
United States, who are eighteen years of age or older, shall have
the right to vote in any public election held in the jurisdiction in
which the citizen resides. The right to vote shall not be
denied or abridged by the United States, any State, or any other
public or private person or entity, except that the United States or
any State may establish regulations narrowly tailored to produce
efficient and honest elections.
`SECTION 2. Each State
shall administer public elections in the State in accordance with
election performance standards established by the Congress.
The Congress shall reconsider such election performance standards at
least once every four years to determine if higher standards should
be established to reflect improvements in methods and practices
regarding the administration of elections.
`SECTION 3.
Each State shall provide any eligible voter the opportunity to
register and vote on the day of any public
election.
`SECTION 4. Each State and the District
constituting the seat of Government of the United States shall
establish and abide by rules for appointing its respective number of
Electors. Such rules shall provide for the appointment of
Electors on the day designated by the Congress for holding an
election for President and Vice President and shall ensure that each
Elector votes for the candidate for President and Vice President who
received a majority of the popular vote in the State or
District.
`SECTION 5. The Congress shall have power to
enforce this article by appropriate legislation.'
With this
amendment in the Constitution, all of the votes in
2000 - to the best of our human ability and using credible and
standard criteria - would have had to have been counted. No
unnecessary or arbitrary timeline cutoff would have been allowed
with regard to counting votes. And the Florida legislature
could not have even thought about ignoring the six million
popular Florida votes in order to select
presidential electors independent of the popular vote. Under
this amendment, the popular vote could never be ignored and an
independent legislative selection of electors could never
happen.
In light of the presidential fiasco in Florida in
2000, and during the South Carolina Democratic presidential
candidate's debate on May 3, 2003, Rev. Al Sharpton asked Florida
Senator, Bob Graham, if he would support adding a voting rights
amendment to the Constitution. In essence he said the
following: "I haven't seen the legislation, but probably
not. I believe states should remain in control of election
procedures. And I'm against federalizing the election
process."
Let's analyze his statement.
1. It means Senator Graham
essentially supports the status quo when it comes to voting
rights because, under current law, 2000 could happen again in
Florida or elsewhere. The winner of the popular vote losing
has happened three previous times in our history - 1824, 1876 and
1888. Most Americans are totally unaware that, nationally,
according to a joint study by the California Institute of Technology
and Massachusetts Institute of Technology, somewhere between four
and six million votes were not counted in 2000 because many states
had similar problems to what occurred in Florida. Other
states' election systems didn't get the same exposure as Florida's
because the winner in other states was not in doubt. For
example, Illinois was worse than Florida - it didn't count nearly
200,000 votes with similar problems to Florida's - but because Gore
won Illinois with over 300,000 votes, the winner of the state's
electoral votes was not in doubt. In Illinois and other states
too, most of the problems - with voting and machines - were
concentrated in the poor and minority
communities.
"Amazingly, the government of the United States
conducts and provides no official count of the vote for president."
(Overruling Democracy - The Supreme Court vs. The American
People, by Jamin B. Raskin, p. 66) Can you imagine the
United States recognizing a close and hotly contested third world
"democratic" election where the citizens had no right to vote, as
much as six percent of the total vote was not counted; where there
was no official results provided by the government; and where that
country's Supreme Court declared it's personal and ideological
friend the winner, even though the declared winner did not get the
most popular votes?
2. It means
Senator Graham supports "states' rights" when it comes to voting
rights. But I would remind Senator Graham and others, slavery
was not supported directly in the Constitution. The world
"slavery" never appeared in the Constitution. Slavery was
supported constitutionally because states had a right - "states'
rights" - to provide legal cover allowing private citizens to own
other human beings. That same states' rights
system was at work in the 2000 election with respect to
voting and it continues
today.
3. H. J. Res. 28 does
not federalize voting any more than the First
Amendment federalizes free speech or freedom of religion. The
First Amendment's right to free speech and religion is an individual
citizenship right applicable to every American - not a "federal"
right - protected by the federal government and its courts.
It's an individual right that can be upheld in a federal court of
law. Likewise, a voting rights amendment would grant every
American an individual citizenship right to vote that,
because it would be a right for every American, would ultimately be
validated by Congress, through legislation, and the Supreme Court,
through interpretation.
4. In
essence, then, in the South Carolina debate, Senator Graham chose
"states' rights" over an "individual
right."
5. Attorney General
John Ashcroft sent a letter to the National Rifle Association
asserting that every American has an individual constitutional
RIGHT TO A GUN. In it he wrote: "Let me state
unequivocally my view that the text and the original intent of the
Second Amendment clearly protect the right of individuals to keep
and bear firearms." Some agree and others disagree with that
interpretation.
However, there can be no debate or
disagreement about the right to vote. The Supreme Court made
it absolutely clear in Bush v. Gore - there is NO
INDIVIDUAL CITIZENSHIP RIGHT TO VOTE in the
Constitution!
If Americans had a choice between the
RIGHT TO A GUN and the RIGHT TO VOTE, it would
be nearly unanimous. Americans would choose the right to
vote! If that is the priority of the American people, then we
should have the wisdom and political will to codify it in the form
of a constitutional amendment.
What are the advantages of
fighting for human rights and constitutional amendments? Human
rights and constitutional amendments are non-partisan
(they're neither Democratic nor Republican), they're
non-ideological (they're not liberal, moderate, or
conservative), and they're non-programmatic (they
don't require a particular means, approach or program to realize
them). We can experiment to find the best
means of fulfilling such a constitutional right.
Rights and constitutional amendments are also not a "special
interest." They're for all
Americans!
August 6th was the 38th anniversary of the signing
of the 1965 Voting Rights Act. But the Voting Rights Act is
really misnamed and, to some extent, misleading. It's not
actually a voting rights act. In fulfillment of
the 15th Amendment to the Constitution, added in 1870, the 1965
Voting Rights Act was actually a Non-Discrimination in Voting
Act.
To fulfill the democratic ideal, an affirmative
voting rights constitutional amendment still lies in the
future. Over 100 nations explicitly guarantee their citizens
the right to vote and to be represented at all levels of
government. The United States is not among them.
If we
pass a new voting rights amendment, the next civil rights movement
will emerge fighting for congressional legislation that can advance
even further the central democratic idea of universal voting - only
partially enabled through the 1965 Voting Rights Act, Motor Voter
and the Help American Vote legislation. With a voting rights
amendment, a new civil rights movement would emerge to fight to
fully implement the amendment, while also using the federal courts
to interpret voting rights more fully.
WHAT CAN I
DO? If you would like to help me put this voting
rights amendment in the Constitution, call your congressperson at
202.225.3121 (or call their local office) and urge them to become a
co-sponsor of H.J. Res. 28. You can also urge your Senator to
introduce a parallel bill in the U.S. Senate. If you need more
information about this legislation call my office at
202.225.0773.
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