We must have unrestricted constitutional right to vote

Voting is an American principle and a fundamental democratic right that should be protected, promoted, and practiced, which is why many people are surprised to learn that the U.S. Constitution provides no explicit right to vote. This leaves voting rights vulnerable to the whims of politicians and some citizens with fewer rights than others.

In 2016, North Carolina for Rational Sexual Offense Laws (NCRSOL) was created as a voice calling for a meaningful discussion about the harmful cause and effects of sex offender registries. While most of our members are active registered voters, we often witness an ex post facto of judicial partisanship turning back the clock and taking away voting rights from citizens that ought to have a constitutional right. 

Even as the rising American electorate gains momentum, new regressive laws, rulings, and maneuvers are threatening voting rights without facing the strict scrutiny that would come with an affirmative right to vote in the Constitution. 

In 2013, the Supreme Court struck down Section 4 of the Voting Rights Act (VRA), stripping the Justice Department of the powers it had for five decades to curb racial discrimination in voting. The Election Assistance Commission was left without commissioners for years and frequently faces bills in Congress that would end its existence entirely. Many schools skip civics education, contributing to the decline in voter turnout in local and primary elections.

Enshrining an explicit right to vote in the Constitution would guarantee the voting rights of every citizen of voting age, ensure that every vote is counted correctly, and defend against attempts to effectively disenfranchise eligible voters. It would empower Congress to enact minimum electoral standards to guarantee a higher degree of legitimacy, inclusivity, and consistency across the nation, and give our courts the authority to keep politicians in check when they try to game the vote for partisan reasons.

The Constitution has been amended 27 times. Excluding the Bill of Rights, 7 of the last 17 constitutional amendments have dealt directly with expanding the franchise and improving the way citizens vote. 

While the U.S. Constitution bans the restriction of voting based on race, sex and age, it does not explicitly and affirmatively state that all U.S. citizens have a right to vote. The Supreme Court ruled in Bush v. Gore in 2000 that citizens do not have the right to vote for electors for president. States control voting policies and procedures, and as a result, we have a patchwork of inconsistent voting rules run independently by 50 states, 3,067 counties and over 13,000 voting districts, all separate and unequal. 

Approximately 5 million Americans convicted of felonies who have already completed their sentences are permanently disenfranchised. Fourteen states do not have an automatic restoration process in place for returning citizens who have completed their sentences. Some states like Florida leave re-enfranchisement decisions to the discretion of public officials, discretion which could be exercised arbitrarily or used for political gain.

However, it is not only ex-felons who face difficulty registering to vote. Americans living overseas have trouble registering in their home district, because their state may not consider them residents anymore. Many college students attempting to register at their college precinct have faced voter intimidation or were simply refused the ability to register to vote. Such obstacles are not only arbitrary, but in many cases politically motivated.

A Right to Vote Amendment will guarantee all American citizens at least 18 years of age a constitutionally protected individual right to vote. Much like the rights to speech and religion, a constitutionally protected right to vote will be difficult to limit without showing a strong need for the limitation to exist.

Voting should be a simple process in which any registered citizen can easily participate. However, this is not always the case. Voter identification and registration requirements, as well as the machines that voters use, vary widely between states. States and counties design their own ballots, pursue their own voter education, and have near-complete authority over their state voting policies and procedures. With over 10,000 different jurisdictions, voters and potential voters are much more likely to cast a counted vote in some states, some counties, and some areas of the country than others, simply based on the difference in standards for each election. Elections in many states are rife with lost and incorrectly counted votes, and many voters are incorrectly told that they cannot cast a ballot. 

Since voting is regulated by the states, there is little the national government can do if voters are intimidated or harassed at the polling booth. With the Supreme Court’s 2013 decision to strike down section 4 of the Voting Rights Act, and Congress’s unwillingness to act to restore key components of the Act, a Right to Vote Amendment is needed to further enforce voting rights.

At present, Congress can take no action to formally help improve voting standards across the nation. While the Help America Vote Act (HAVA) of 2002, which passed in response to the voting fiasco of the 2000 presidential elections, does establish some standards including a provisional ballot, states are not required to follow these policies. The only way to ensure that every vote is counted and that electors follow the will of the people of their state is to create a constitutionally protected right to vote. The Right to Vote Amendment will give Congress the authority to protect the individual right to vote and oversee voting policies and procedures to ensure that elections are fair, accurate and efficient.

In 2017, U.S. House Members Mark Pocan, among a number of other co-sponsors, has shown great leadership in introducing House Joint Resolution 74 (H.J. Res. 74), a bill that would establish an explicit right to vote in the Constitution. However, the bill died without ever having a chance to move forward. Congress has a duty to protect the democracy of all Americans by creating constitutional amendment that allows voting rights for all. It should read something similar to this: 

SECTION 1. Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.

SECTION 2. Congress shall have the power to enforce and implement this article by appropriate legislation.

Only with a constitutional amendment with easy-to-read language will citizens and the courts understand that we can finally put who can or cannot vote to rest. 

ACADEMIC PAPERS

• The International Status of the Right to Vote, by Alexander Kirshner, provides an overview of the right to vote in countries around the world and how laws are interpreted
• The political and organizational dynamics of constitutional suffrage movements in U.S. history: The experience behind the 15th, 19th, 23rd, 24th and 26th amendments, by Alex Keyssar, Kennedy School of Government 
• Election Reform and the Right to Vote, by Anita S. Earls, Director of Advocacy, UNC Center For Civil Rights, explains the limits of HAVA and what Congress can do to establish a right to vote.
• A Right To Vote Amendment To The Constitution: Confronting America’s Structural Democracy Deficit, by Jamie Raskin, Professor of Law, American University, Washington College of Law – Includes a discussion of the impact of states constitutional provisions of the right to vote; impact of different formulations of the right-to-vote amendment; and whether a right to vote vote amendment might provide a legal means to pursue reforms such as election day registration.
• A legislative and national political strategy for a right-to-vote amendment during the 2004 presidential election and beyond, by Steve Cobble, Institute for Policy Studies
• The Constitutional Right to Vote, by Ron Walters calls for a right to vote amendment by detailing the problems that minorities faced in the last election.
• Why Americans Need a Constitutional Right to Vote for Presidential Electors, by Demetrios James Caraley, discusses the legal implications of a system that does not constitutionally guarantee the right to vote.

HISTORY OF THE RIGHT TO VOTE

Throughout the history of the United States, voting rights have been expanded repeatedly by Constitutional Amendments and legislation. When the Constitution was written, most of the Framers did not believe in universal suffrage. However, as we have progressed as a society, traditionally disenfranchised groups, including women and racial minorities, have received voting rights through Constitutional Amendments. Of the 17 Amendments ratified since the Bill of Rights in 1791, seven have expanded voter eligibility or increased democratic participation. Enshrining an affirmative Right to Vote in the Constitution would be one more step toward universal suffrage and equal voting rights for all.