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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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