A Right to Vote
Amazingly, the Constitution fails
to guarantee the most basic of Democratic rights
by Jamin B. Raskin
The American Prospect magazine, August 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
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 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.
SECT I ON 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 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.
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 A1 Gore better than
go 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 19605 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,
JAMIN B. RASKIN is a professor of constitutional law at American
University and the director of its Appleseed Project on Electoral