Rick Hasen has a new book (A Real Right To Vote) promoting a voting rights amendment. He provides various options. A basic one would leave in place current felon bans, not address territories, leave in place the Electoral College (with a clear popular vote), and not change the Senate. Other possible tweaks address those things. Territories concern me these days.
The basic amendment also shows that the best approach would provide something for different groups. The amendment still provides the states a major role, not making voting by mandatory rule a matter for a federal bureaucracy. Some liberals (I saw this on a certain blog) think any individualized local rules are problematic. I find this overblown.
States would have the option to delegate the burden of automatic voter registration and identification (including a unique voter classification number). He argues some aspects of it promote a more efficient and less problematic voting system. Various interest groups would be satisfied by different aspects of the proposal.
The amendment would strongly protect both voting and voting access. Likewise, it would emphasize congressional discretion, an answer to recent conservative cases like Shelby v. Holder. The book notes that the Supreme Court over the years interpreted possible voting rights protections narrowly. The amendment tries to clearly state limits, reflecting modern constitutional protections (in doubt now) that explicitly protect voting rights.
I support the general move here. Again, I think we should address loopholes such as millions in Puerto Rico, who are U.S. citizens, being denied the right to vote for POTUS.
People who served their time (calling them "felons" is an unfair mark of Cain) should have the right to vote. I would understand if that was left off. Likewise, we should change the Senate, but it can be a separate battle. Giving Congress more discretion and other voter equality rules would probably help voters caught in the criminal justice system vortex.
Finally, removing the natural-born citizenship rule for presidents should be mixed in. It is popular. It is voting rights adjacent.
I think -- I had an extended dispute with someone online about this -- that the Constitution does protect the right to vote in various ways. My opening argument is that the Guarantee Clause says the United States "shall" guarantee a republican form of government. A republic involves the people voting for their leaders. Some significant subset should have the right to vote. This provides a floor, even if the states have wide discretion to regulate voting.
The Constitution (the second time saying "elected by the People") provides for popular election of Congress based on the qualifications in the most populous branch of individual state legislatures. Each state except for Nebraska has two branches of the legislature.
No state ever chose such legislators by a method other than some form of popular election. The Guarantee Clause reflects the basic principles of our government (see Declaration of Independence) that demand a right to vote.
As a 19th-century case says, suffrage is a "fundamental political right, because preservative of all rights." The Supreme Court said it is a "fundamental right.” Equal protection principles hold that fundamental rights must be carefully handled.
States in a democracy (even an imperfect one like ours) will provide voting rights to some people. Once they do so, the fundamental right to vote has to be equally applied. Limits are acceptable. Free speech is not absolute. Nonetheless, like all rights, the limits have to be narrowly tailored, respecting the importance of the protections involved.
The 24th Amendment only bans poll taxes for federal elections. Nonetheless, a 1960s case soon applied the rule to state elections. The case was part of a trend broadly promoting a "one person, one vote" principle. The Supreme Court held:
Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.
This general principle applies to various voting regulations having an economic discriminatory intent and effect. The Supreme Court applied the principle to the right to a lawyer if you are accused of a crime and the right to travel. The principle lost popularity at the Supreme Court, including respecting public schools and the right to choose an abortion (when that was still around).
The Constitution alone is not to blame for the narrow application any more than a lower court upholding an exception to a mail-in voting ban only application to senior citizens is correct under the Twenty-Sixth Amendment.* Nonetheless, the current text makes it easier for people and institutions to threaten voting rights. The possibility of impeachment and removal likewise is not much of a check, even if it seems quite appropriate.
The 1960s case alluded to but did not rest on First Amendment arguments. Nonetheless, as this article notes, a myriad of cases spoke of voting as a form of expression. We regularly say a vote provides a way to "have our say" or give certain groups a "voice." And similar language.
The vote gave people the right to provide their input, especially if it was a referendum. Political parties appeal to a right to association. Campaign finance rules are limited to stop violations of political speech. This is also a form of petition to the government. Rick Hasen also argues that multiple voting limits are intended to target certain groups because the government does not like their views. It is a blatant First Amendment issue.
The Supreme Court also rejected an argument that national citizenship gave women the right to vote. The Fourteenth Amendment protects the privileges and immunities of citizenship. A few people in Congress were sympathetic to the women’s suffrage argument.
A lower court opinion that had a great influence in the crafting of the language of the Fourteenth Amendment listed among privileges was "the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised." And, the right to vote is a basic part of citizenship. Noncitizens have many rights. One right they do not have is the right to vote.
It is okay to provide the right to vote in some ways to noncitizens. New York City passed a law allowing noncitizens to vote in local elections. The law is on appeal. An intermediate court recently declared it was unconstitutional under the state constitution. It is wrong from what I can tell from the language involved.
One logical place to allow noncitizens, at least here for an extended period, is for parents of students in school elections. Traditionally, many places allowed immigrants on their way to citizenship the right to vote. It became less of a thing in the early 20th Century. Now a few places allow it. An immigrant-friendly place like New York City rightly allows it today.
Voting is treated as a fundamental right for purposes of due process ("liberty") and equal protection. We can go a step further and argue it is a right/liberty overall. We can toss in the Ninth Amendment as a source of said right. The Tenth Amendment also references the powers of the people, which could include some power to vote for certain things.
The dissent in an opinion summarily upheld by the Supreme Court made an interesting argument that D.C. should have a right to representation in the House. Sen. Orin Hatch (R) supported that as part of a failed bill that would have given his state another representative. I was iffy about the constitutionality of that. I am more open to it these days.
These are a mix of arguments that might seem "out there," but at least some of them have some force. The Guarantee Clause can help Congress to offer justification for federal voting laws. There are other congressional powers to regulate the "time, place, and manner" of congressional elections. A more explicit limit is multiple barriers to different forms of discrimination in amendments where the "right to vote" is expressed in various ways.
The phrasing suggests there is a right present. The amendments (with congressional enforcement powers, including the 14A, sec. 2 penalty to reduce state House delegations by the percentage of people burdened) provide a floor to state suffrage rules. Maybe, some day it will be enforced. "The right of citizens of the United States to vote shall not be denied or abridged" [for various reasons] seems to me to mean the right exists.
Are we to assume there is a possibility a state in 1870 (when the 15th Amendment was ratified) would deign to not allow individuals any right to vote? No way. That would be ridiculous where "the consent of the governed" is a fundamental principle. The right to vote is assumed. The question is how broadly it would be applied.
Over time, such principles are not "subject to continuous revision [by amendment] with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government."
We have felt a need to use amendments to bit by bit protect voting rights unlike many other rights, including freedom of speech or many others. This is a depressing state of affairs. One amendment only dealt with federal poll taxes. A court decision quickly seemed to make the whole thing redundant by saying all poll taxes to vote unconstitutional. But, this was during the liberal Warren Court years, and it was still 6-3.
Other than voting, the Equal Rights Amendment has been the main exception to the opposition to piecemeal protection of basic constitutional rights. We have an equal rights provision (applied to the federal government by the Due Process Clause) that applies to everyone.
I respect the argument for the ERA. I am wary about piecemeal protection of equality as compared to a basic principle even here. It would be depressing if we needed six or so amendments to protect various forms of equal protection. How about an amendment just covering a small part of it and only for the federal government?!
A Voting Rights Amendment is appropriate. There is a constitutional right to vote in various respects. But, it is expressed in a convoluted way, broken apart into segments. We need a firm expression of the right to vote. The details can be debated. The fundamental principles are much more essential. Rick Hasen’s text is a good starting point.
Rick Hasen grants this can be a long haul. It took fifty years after the 15th Amendment (race) to protect women. I was thinking about same-sex marriage in the 1990s before the Supreme Court protected it in 2015. False starts occurred in the past, including attempting to do away with the Electoral College or firmly giving rights to D.C. residents. The last real amendment was ratified over fifty years ago. It's time for change.
Rick Hasen argues that even as we await ratification, the effort can provide pressure for change. Let's begin!**
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* The book references various other examples. Laws that "abridge" trans people's rights to vote are a form of sex discrimination.
For instance, laws that make it hard for people who underwent transition to change identification. The amendment's permanent voting identification number (not a picture ID) would help.
** His proposed "basic" amendment has six components:
- A positive/affirmative right to vote including for POTUS
- Equal weighing of votes (one person, one vote)
- Automatic Voter Registration and Unique Voter Identification Numbers (States can delegate to federal agency)
- Assuring equal voting opportunities and limiting burdens on voting rights (high test to rules that burden/voter right to federal lawsuit)
- Constitutionalizing Protection of Minority Voting Rights (race/ethnicity/language minority) (no proof of discriminatory intent/disparate impact presumption of fault)
- Congress's Broad Enforcement Powers
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