By Jamin Raskin
Published March 15th 2004 in Los Angeles Times
You have to admire President Bush's willingness to amend the
Constitution over an issue of basic principles. But before we forever
deny millions of Americans the chance to marry the persons they love,
shouldn't we first pass an amendment guaranteeing all of us the right
to vote and the right to have those votes counted?
You may think
such a right already exists, but it doesn't. In fact, among 119
electoral democracies in the world, the United States is one of only 11
whose constitutions do not include the right to vote and to be
represented. This embarrassing national secret reflects our origins as
a slave republic in which votes were cast only by white male property
owners over 21. Universal suffrage was never on the agenda in
Philadelphia, and the founders left the tricky issue of voter
qualifications to state legislatures. Only gradually was the electorate
broadened in the years that followed, with anti-discrimination
amendments that prevent disenfranchisement based on race (the 15th),
gender (the 19th) and failure to pay a poll tax (the 24th).
But
these incremental stabs at voting rights fall way short of
international standards requiring universal suffrage. Florida 2000 was
not a fluke but a vivid glimpse behind the scenes of a fragmented and
politically compromised system that, according to a Caltech and MIT
study, managed to lose the votes of more than 4 million Americans in
that election.
Florida highlighted several things: We have no
uniform ballot for national elections, but a free-for-all of local
butterfly and caterpillar ballots spawning confusion. We have no
independent, nonpartisan federal commission overseeing national
elections, as Mexico has, but rather partisan state officials doing the
job, like Florida Secretary of State Katharine Harris, who doubled as
state chair of the Bush campaign. We have no national voter
registration
system, as more than 100 nations do, but rather state-based systems
subject to manipulation. So under the guise of centralizing Florida's
voter list, Harris contracted with a private company that proceeded,
under her direction, to wrongly purge more than 18,000 voters, most of
them minorities, on the false grounds that they were ex-felons. We
don't even have a national ballot count or tally.
Florida laid
bare the undemocratic structures that constrain our politics. When the
Florida Supreme Court ordered the counting of 175,000 ballots that did
not register on the punch-card machines, Republican legislative leaders
threatened to disregard the popular vote and choose their own electors.
This threat startled much of the nation. But, in Bush vs. Gore, the
Supreme Court quickly recorded that they were acting within their
powers under Article II ("Each state shall appoint, such manner as the
legislature thereof may direct, a number of electors .").
By
defining voting as a state-conferred privilege rather than the people's
inalienable right, the Constitution leaves millions outside the
representative structure.
In Washington, D.C., for instance,
570,898 citizens have no representative in the Senate or the House with
voting privileges - even though they pay, proportionately, more federal
taxes than people in every state but Connecticut and even though
Washington residents have fought in every war since the Revolution.
Their disenfranchisement is unique among the world's capital city
residents. But the Supreme Court rejected a district voting rights
challenge in 2000 on the grounds that Washingtonians are not state
residents.
In all, there are more than 8 million disenfranchised
U.S. citizens, a population larger than the populations of Wyoming,
Vermont, Alaska, North Dakota, South Dakota, Montana, Delaware, Maine
and Nebraska combined.
About 4.1 million of these people live in
the territories - mostly Puerto Rico, but also Guam, American Samoa and
the U.S. Virgin Islands. These citizens have no voting representation
in Congress and cannot vote for president, which, in the case of Puerto
Rico, according to the U.S. 2nd Circuit Court of Appeals, "is the cause of immense resentment."
On
the mainland, especially in the Deep South, many states supervise an
increasingly controversial internal political colony. More than 3.9
million citizens, 2% of the country's eligible voting population, are
disenfranchised because of felony convictions. More than one-third of
these people have done their time but have nonetheless lost their right
to vote forever. The policy is not uniform; different states handle it
in different ways.
Such political punishment is a tactic not of
individual rehabilitation but of mass electoral suppression. The
ex-felon group is disproportionately poor, minority and, probably,
Democratic. In the 2000 election, which was clinched by a little more
than 500 votes, Florida had disenfranchised more than 600,000 citizens
for their felony convictions. Florida takes the position that ex-felons
can never get their voting rights back. Other national supreme courts,
such as Canada's, have overturned similar laws, invoking universal
suffrage provisions in their constitutions.
Around the world,
almost all electoral democracies have written positive suffrage
guarantees into their constitutions. What about us, the super-democracy
that spends billions promoting elections abroad? Before we take up the
idea of "one man, one woman," how about dusting off "one person, one
vote"?