Did You Know That You Don't Have a Guaranteed Right to Vote?

March 1st 2015

Dante Atkins

The 15th Amendment of the United States Constitution says that your right to vote cannot be taken away on the basis of race. The 19th Amendment says it can’t be abridged on account of sex. The 24th says you can’t have your right to vote taken away for failure to pay a tax. And the 26th says that people 18 years or older cannot have their right to vote abridged on the basis of age. Based on these qualifiers, you might assume that the Constitution guarantees the right to vote—but you would be wrong. Nowhere does the Constitution explicitly do that. Instead, the Constitution leaves it up to individual states to decide who the electorate is, and merely prohibits discrimination based on particular categories.

Let’s take presidential elections as an example: when we vote for president, we’re not actually voting for candidates—we’re voting for a slate of electors who will then elect a president. And the Constitution gives states the ability to choose their electors any way they please. Right now, all states use elections to determine their presidential electors. But if a state government decided that they wanted to put that decision in the hands of the legislature or the governor, nothing could stop them, and that state would no longer have a presidential election. Weird but true.

So why does this matter, outside of a technicality?

For starters, this lack of a guaranteed right to vote may have already helped decide a presidential election. After the 2000 election, lawyers for George W. Bush and Al Gore were going head-to-head in the Supreme Court to determine whether Florida—the decisive state in the election—had to continue recounting ballots as Gore wanted, or whether the state could stop recounting and declare Bush the winner. In a 5-4, decision, the Supreme Court sided with Bush and ordered the Florida recount stopped. If Gore had prevailed in court and the recount had continued, some analysis indicated he might have won the state and the presidency. The court noted in support of its decision that the Constitution does not guarantee the rights of individuals to vote for presidential electors.

Felon voting restrictions

Much more relevant on a day-to-day basis, however, are the implications for voting rights and criminal justice.

States can restrict the right to vote based on any criterion not specifically outlawed by the Constitution, and the most widespread application is eliminating the right to vote of those who have been convicted of a crime. All but two states remove the franchise from people who are in prison for felonies. In eight states, people in prison for misdemeanors are barred from voting while incarcerated. Eleven states bar people convicted of certain felonies from ever voting again as long as they live in that state. When viewed in that context, the racial disparities in arrests and sentencing—especially for nonviolent offenses like drug crimes—become not just a criminal justice issue, but also a voting rights issue. As of 2010, a full 2.5 percent of the U.S. population was ineligible to vote because of criminal convictions. There are efforts underway to address these issues: Sens. Rand Paul (R-KY) and Cory Booker (D-NJ) are leading a bipartisan effort to reform sentences for nonviolent offenses and juvenile offenders, and California voters recently passed Proposition 47, which reclassifies many nonviolent felonies as misdemeanors. But these efforts will only make a small dent, and minorities are especially affected. Because the right to vote is not guaranteed in the Constitution, states can theoretically disenfranchise anyone for life based on criminal history, no matter how insignificant. A constitutional amendment guaranteeing the right to vote could at least force states to document a compelling interest in restricting the franchise.

What else might a constitutional right to vote do?

A constitutional right to vote might fundamentally change the way the United States handles voter registration. Canada, for instance, has the right to vote written into their constitution. To comply with that, the Canadian government compiles data from various state agencies and automatically adds eligible voters to the rolls unless the voter opts out. Citizens of the United States, meanwhile, have to proactively register to vote if they wish to vote, which i leaves them showing up at a polling place with nothing to show for their troubles. It might also limit the ability to pass voter ID laws that often have the effect of inhibiting the ability of young people and minorities to cast a ballot.

So, is anyone actually working on this?

It won’t pass any time soon, if ever—but the Democratic National Committee just expressed its support for exactly such an amendment. It would seem like a no-brainer, but partisan politics will make sure it goes nowhere: any expansion of voting rights will likely benefit traditional Democratic constituencies more than Republican ones. A constitutional amendment requires ratification by two-thirds of both the Senate and House of Representatives, as well as three-fourths of state legislatures. And given the fact that Republicans control both Congress and most state legislatures and will be reticent to do anything that might help Democrats win elections, the best Democrats can hope to do is use it as a messaging statement to highlight their ideological contrast with Republicans on voting rights.

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