A call for a right-to-vote amendment on Constitution Day

By Janai S. Nelson
September 17, 2013

Are today’s liberal politicians willing to go to the mat for a seemingly old-fashioned, civil-rights era throwback like the right to vote?

If they care about preserving access to the franchise in the face of the many newfangled voting restrictions that conservatives are now aiming at minority, young or poor voters, they will. And, if they care about advancing the ideals of an inclusive American democracy, they must.

When the members of the Constitutional Convention signed the United States Constitution on September 17, 1787, the democracy we have now was unfathomable. Today, the right to vote is not determined by property ownership, skin color, gender or wealth — as it was legally at the birth of our Constitution and for many decades after.  What has remained constant during America’s democratic metamorphosis, however, is the absence of an affirmative right to vote. On this Constitution Day, I echo the call to amend our Constitution so that it includes an affirmative right to vote.

Proposals to amend the Constitution to include an affirmative right to vote are usually taken most seriously at the time of general elections, especially for the presidency.  That’s when the public is most aware of the frailties of our democracy. However, as we celebrate the founding document that has served as a model for democracies the world over, we must consider how to fill its hollow areas.

In the five instances that the right to vote is mentioned in the Constitution, it is presented as a negative right in amendments to  the original document. The 14th Amendment, for example, which was ratified after the Civil War in 1868, speaks of reducing states’ congressional representation when age-eligible males are denied the right to vote for impermissible reasons. The 15th Amendment, ratified soon after, provides that the “right of citizens of the United States to vote shall not be denied or abridged. . . on account of race, color or previous condition of servitude.”

The 19th Amendment, ratified 50 years later, after World War One, gave women the vote, saying the franchise could not be denied because of gender. Then, responding to the civil rights movement, the 24th Amendment prohibited the poll tax, saying the right to vote could not be denied on account of failure to pay any poll or other tax. The most recent amendment involving the right to vote, the 26th, in 1971, says age cannot be the basis of vote denial for citizens 18 years or older.

Since 1886 the Supreme Court has held that the right to vote is a “fundamental political right, because [it is] preservative of all rights.” However, the tortured history of the right to vote and the government’s reluctance to extend it to citizens beyond its original beneficiaries is demonstrated by these amendments that span a century.

Taken together, these laws establish that voting by citizens age 18 and older cannot be restricted on the basis of race, gender or failure to pay a tax. They do not, however, clearly state a positive right to vote.

In fact, the extent we are able to vote at all is determined by the states pursuant to Article 1, Section 4 of the Constitution — otherwise known as the Elections Clause. According to the Elections Clause, states have the authority to prescribe “the time, place, and manner” of elections.

Since the Supreme Court’s infamous Bush v. Gore decision that decided the Florida voting debacle during the 2000 general elections, at no time in recent history has the need for a right-to-vote amendment been more pronounced.  The court’s ruling earlier this year in Shelby County v. Holder, disabling a key provision of the Voting Rights Act of 1965, calls for dramatic congressional action to both rehabilitate that landmark act and recommit to our constitutional ideals.

Congress should take seriously the bill sponsored by Representatives Mark Pocan (D-Wis.) and Keith Ellison (D-Minn.) to amend the Constitution so that it will include an affirmative right to vote.

With the 50th anniversary of the Voting Rights Act of 1965 now less than two years away, this amendment would be a fitting tribute to the bill’s legacy. It would also bring our democracy and our Constitution in line with modern international norms of including an affirmative right to vote in founding documents.

What would it take to amend the Constitution to include this affirmative right to vote? Either a super-majority (two-thirds) of both the House and Senate must pass a bill, which would then have to pass two-thirds of the states, or there is the more convoluted process of a Constitutional Convention called by two-thirds of state legislatures. Political will is, of course,  key to this process.

A right-to-vote amendment would open the door to voting access for excluded groups, such as the homeless, citizens convicted of a felony, and residents of the District of Columbia, among others. In addition, a constitutional amendment process centered on the right to vote would build civic awareness,  inspiring a new vision of participatory democracy.

Without an affirmative right to vote, we are left vulnerable to the whims of partisan politics and inept election administrators to determine when, how and under what conditions we can vote.

So, as we honor our Constitution’s birthday, let’s not only blow out the candles — let’s breathe new life into it with a positive, explicit and unfettered right to vote.

Janai S. Nelson is author of the article, “The First Amendment, Equal Protection and Felon Disenfranchisement: A New Viewpoint.”

 

PHOTO: People vote during the U.S. presidential election at a displaced polling center in the Coney Island section of Brooklyn, New York, November 6, 2012. REUTERS/Brendan McDermid 

20 comments

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“Article 1, Section 4 of the Constitution — otherwise known as the Elections Clause. According to the Elections Clause, states have the authority to prescribe “the time, place, and manner” of elections.”

Yes, and they have apparently decided that it is NOT a good thing to have the homeless or felons deciding elections, not those who would travel from polling place to polling place to vote multiple times (and even after death) to assure a more an more “diverse and liberal” society. ONE person, one vote. NO MORE!

Posted by OneOfTheSheep | Report as abusive

There is no “right” to vote, it is a priviledge to be earned. Existance and residence alone does not qualify one to choose those who would direct this country in all matters and not just welfare and economic policy as the present adminstration demonstrates.

Any public assistance should disqualify people from voting as should exemption from national public tax.

Posted by elsewhere | Report as abusive

What exactly does this girl want? Anyone, anywhere, anytime, as many times as needed?
I’m sure some idiots want polling places to be open for like 1 hour at 2 am on Wednesday. Likely a town or school vote. This stuff should be stopped. But if a polling place is open for 72 hours, and you are registered to vote, what else is there? Yeah, registering to vote should be done prior to the voting period and you must show a valid ID, citizenship, and your residency.

Posted by tmc | Report as abusive

@elsewhere, trying to exclude people for any reason other than citizenship and residency is wrong and only draws more people like Ms. Nelson to the fight. If you’re incarcerated, under 18, or mentally incompetent you can’t vote, that’s it.

Posted by tmc | Report as abusive

The question of the right or the privilege to vote has now become the right and the privilege to deter and obstruct voting of others.

Those posted, may at some time in the future find their vote disenfranchised.

Beware what limits you define!

Posted by Flash1022 | Report as abusive

As a lawyer the author demands a detailed and enumerated right to do vote, while in fact, as she noted, there are specific protections in the Constitution addressing that right. I guess a JD does not require reading comprehension.

One needs to justify their existence by continually raising new “issues” that in fact are not issues at all.

Ms. Nelson needs a re-orientation to the world that exists outside the liberal enclave in which she lives.

Posted by COindependent | Report as abusive

@OneoftheSheep: does being homeless or being a felon disavow you of citizenship and the rights entailed? If that is truly what you believe, you are neither a democrat nor someone who favors any check on government power. You also have absolutely no conception of what a positive right to vote entails. I venture to guess you didn’t read the article.

@elsewhere: I’m sure the great history of aristocracy is what leads you to believe this system would work so well? Also, since you seem so adamant that those who receive public assistance cannot vote, I assume you won’t be writing off any tax exemptions this year, correct? Seeing as how tax exemptions and refunds are a form of social benefit being financed at the expense state revenues.

@tmc: I don’t think it is hard to glean from the article what she wants: a federal voting law that isn’t based on the ways states cannot disenfranchise citizens. Instead, the law should proclaim the only guideline for voting: citizenship and legal residence.

@COindependent: You question Ms. Nelson’s reading comprehension, but I’m more concerned about yours. You apparently don’t understand the difference between a positive right and a negative right. I would direct you to your nearest legal dictionary, but suffice it to say I don’t have faith you could locate one. Currently, we have negative voting rights: ways the states cannot disenfranchise voters. States are then free to come up with new ways to disenfranchise voters, which then face legal challenge. A positive legal right would establish clearly what she believes, and the world has agreed, should be the only substantive requirement for voting: citizenship or legal residence. Less litigation, less room for states to determine who has the right to vote, how, and when. It establishes less opportunity for state intervention. It is, in fact, a libertarian argument in its essence.

Posted by gallen89 | Report as abusive

The progressives (i.e. liberals) now define the “right to vote” as anyone can vote with no ID. With an estimated 12 – 20 million illegal aliens, this is a prescription for fraud…which is exactly what they want…a single party welfare state. Double speak is alive and well. Use your head.

Posted by actnow | Report as abusive

@gallen89,

I am fully as much and more a “democrat” and “someone who favors a check on government power” as were our founding fathers. They demonstrated far more foresight and awareness of man’s weaknesses that you and those who think as you do.

Being a felon does, indeed, strip one of a variety of the PRIVILEGES accorded “citizens in good standing” under our Constitution, such as voting or possessing firearms. A homeless person, by definition, is without a permanent, verifiable address.

I won’t insult your intelligence (if that’s possible) by explaining why felons are not permitted firearms. The reason the homeless cannot vote is their very lack of a physical “permanent” address. They might vote where they do not actually reside. They might cast multiple votes by visiting multiple polling places. Each would be a specific act of voter fraud

No specific precinct is expecting them to show up, be properly verified, and get checked off the list that assures one person, one vote. Our society rightfully discourges any “open door voting policy” that would invite and perpetuate fraudulent voting.

Fraudulent votes devalue the significance of each valid one no less than counterfeiting our currency devalues the worth of each and every valid dollar in the marketplace.

Posted by OneOfTheSheep | Report as abusive

I am surprised that a lawyer would even suggest that the Constitution should be diddled with in order to give her an ego boost. The Constitution is the legal foundation of our country, not a vehicle for coddling nervous minorities.

Posted by JRTerrance | Report as abusive

The only groups whose political liberties are threatened nowadays are those who are able to restrain their admiration for the Obama Administration. The regime’s use of the Internal Revenue Service to audit and harass political groups who disagree with it politically is a scandal, and amounts to true voter suppression.

Posted by ExDemocrat | Report as abusive

So many conseratrolls, so little sense.

Posted by borisjimbo | Report as abusive

@elsewhere @tmc @flash1022 @gallen89

Four strangers arrive in the same city. All are from far away, where each hometown is quite different than the next. The four strangers have been joined for a purpose. They are all businessmen, and they have all been assigned the same cooperative project. They will work together for some time. Their first night in the city together has been long and tiring, so they decide go out for dinner together to relax and become acquainted with one another. They agree to pool their money for dinner, and 3 of the 4 strangers offer $30. The fourth apologizes, saying he does not have enough money to contribute. In an effort to be inclusive, the 3 strangers who have paid think it best to include the fourth in order to build team unity and do the right thing. With $90 between the four strangers, there is just one problem: they cannot agree on a mutually accepted restaurant. Should they take votes? If so, do all 4 stranger’s votes count equally? The fourth, other than gracing the 3 with his presence, contributed nothing at all. Does he deserve to say how the pool is allocated even though he contributed nothing himself?

The above is a vastly over simplified analogy, but it illustrates the idea that I believe in:

If one’s NET tax flow is not negative, then one should not have the PRIVILEGE of voting. I use the word NET tax flow for a reason. Many people in this country receive federal aid, but also PAY federal taxes. It is unfair to say that someone who receives federal aid should not be permitted to vote. I personally claim tax exemptions, which are effectively federal reimbursements. The word NET means that if the sum of money one PAYS into the pool is greater than the money you RECEIVES from the pool, then that person should have the privilege of voting. If one’s NET flow is positive, then why should that person have a say in how the pool is distributed? After all, they have no skin in the game what so ever.

In conclusion, there is no RIGHT to vote, nor should there ever be. To vote in a democracy is to indirectly control how funds are allocated among its citizens. The power of control is a great PRIVILEGE, and that privilege should be reserved for only those who, all things considered, contribute to society in a tangible (monetary) fashion.

Posted by aallred | Report as abusive

What does the author mean by affirmative right to vote?

Posted by Avgur | Report as abusive

@gallen Please name one state, when, and how it (be specific and document the court decision) was able to prevent a person from voting since 1999. And, requiring a state-issued ID to prove who you are is not disenfranchisement, especially when one considers it is a commonly accepted requirement to complete even the most basic tasks (using a credit card, buying tobacco and other products, cashing a check, etc.) in these United States.

The libertarian position in no way requires a specific affirmation of the right. As stated previously, it’s already enumerated in the Constitution.

Posted by COindependent | Report as abusive

This amendment would be not really needed, because people are not systematically excluded from voting by the Federal Government. The Constitution should restrict what the Federal Government can do, not enable it, given behavior over the past century.

What we need is an Amendment declaring that nothing anywhere else in the Constitution shall be interpreted to deny anyone any of their Constitutional rights as an individual on the basis of race, sex, religion, ethnicity, sex, or sexual preference. We should be treated as individuals, not “classes”. Otherwise we simply have no individual rights, which we currently do not.

Posted by usagadfly | Report as abusive

Wow – people have really lost all sense of reality. The disenfranchised are so because they CHOSE to be so. I didn’t force anyone to commit a crime and forfeit their right to vote. I didn’t force anyone to become an alcoholic or drug addict, or stop taking their psychotic drugs or to stop looking for a job so they would become homeless. These people don’t care enough about their civic duty to DESERVE the right to vote. I agree, voting should be a privilege, EARNED by your acts of citizenship. I am beginning to think maybe we should revert the law and go back to requiring property ownership as a voting requirement. Welfare recipients living on MY tax dollars don’t deserve the right to vote. I am sick of people who keep looking for handouts voting for me to pay more taxes so they can sit on their butts taking up valuable natural resources and contributing NOTHING.

Posted by TC4Sanity | Report as abusive

Dream on your voter suppression fantasy. It’s dem Dems that like to vote twice or more and use the courts to overturn elections based upon delusions.

Posted by JP007 | Report as abusive

@elsewhere “Any public assistance should disqualify people from voting”
Good grief, who does that leave to actually vote? Maybe one weird guy who lives in a cabin in the hills living off roadkill? Not even him really.
If you’re talking about disqualifying those who have benefitted from ANY public assistance…
Everyone who ever went to a state funded school. Everyone who went to a privately funded school which received tax breaks. Anyone who uses roads, bridges, dams, the electrical grid, railways… Anyone who works for a company with any sort of state assistance (since that could be considered assisting that person in helping the company to operate and therefore provide jobs) whether it be TARP, any sort of reduced rates, patent protection…
Anyone who benefits from the protection of the army, navy and air forces, or who benefits from the protection afforded by the police and justice system. Anyone who eats food not contaminated with lethal viruses and chemicals and monitored by the FDA. Anyone who takes or has taken medication to their benefit. You get the point…

Posted by K.MacKenzie | Report as abusive

@aallred “If one’s NET tax flow is not negative, then one should not have the PRIVILEGE of voting.”
Elaborating on the above, how do you fully account for who is receiving from the system? I.e. how do you account for the cash flows which indirectly benefit someone, but they don’t directly receive the money?
Let’s say I work for a company called “MACKENZIE INDUSTRIES”. The company designs and builds computers.
I am a design engineer and paid well, pay taxes accordingly, and as a single male, am not on food stamps, medical aid, whatever. As such I could be said to have a positive contribution.
However, that’s to discount all the government assistance which costs money, has benefitted me, but for which I receive no direct payment. At the most basic level, I’m able to actually live and work because of the various health organisations that rely on government funding; research, outbreak prevention, the tracking and monitoring of diseases, plus the hospitals which rely on government funded work and research plus government protection in being able to operate their business model. I haven’t been stabbed to death yet on account of police and the justice system keeping the worst criminals off my streets and out of my home, yet I’ve never directly received a stabbing prevention grant.
I utilise roads and the maintenence and provision of safe traffic systems. I gain intangible benefits from my country not being invaded or taken over by despots, and the various taxpayer funded institutions which prevent this. Then there’s all sorts of benefits my employer receives, directly and indirectly, which even allow me to have a job in the first place to pay taxes; the legal protections on their IP, the education of the region and ability to hire people to allow the company to operate, the fact that the offices and factory haven’t been torn down by hoodlums, the taxpayer funded efforts in supporting a currency and financial system that facilitates customers. Everyone benefits from so many tax funded programs and institutions that you couldn’t possibly place a monetary value on people’s contributions and gains in order to work out who is eligible. Working at MacKenzie Industries and not on any direct welfare programs I might like to think of myself as a self made man, but the reality is I would not be able to live that same life tax free as a self made man on the moon.

Posted by K.MacKenzie | Report as abusive