What does the Constitution say about the "Right to Vote"?
Summary (March 30, 2014). The word "vote" (and its variants "voted", "votes", "voting", etc.) occur a total of 39 times throughout the Constitution of the United States and the 27 Amendments. They are all referenced below (emphasis mine).
It is interesting to note that, the Founding Fathers did not devote any reference to the "right to vote" by "We the People" anywhere in the original Constitution of the United States and Bill of Rights ratified on January 10, 1791. Every reference to voting contained therein was of a procedural nature concerning the Legislative (Congress) and Executive (President) branches of government.
The closest reference to the people's "right to vote" is in Article 1 (Legislative Branch), Section 2, Clause 1, pertaining to the election of members to the House of Representatives.
It is interesting to note that, the Founding Fathers did not devote any reference to the "right to vote" by "We the People" anywhere in the original Constitution of the United States and Bill of Rights ratified on January 10, 1791. Every reference to voting contained therein was of a procedural nature concerning the Legislative (Congress) and Executive (President) branches of government.
The closest reference to the people's "right to vote" is in Article 1 (Legislative Branch), Section 2, Clause 1, pertaining to the election of members to the House of Representatives.
"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
The "Right to Vote" wasn't specifically addressed in the Constitution until Amendments 12, 14, 15, 17, 19, 20, 25, and 26. Election laws are the responsibility of each State.
Article 1, Section 3, Clause 1 - The Senate
The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) (The preceding words in parentheses superseded by 17th Amendment, section 1.) for six Years; and each Senator shall have one Vote.
Article 1, Section 3, Clause 4
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
Article 1, Section 7, Clause 2
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Article 1, Section 7, Clause 3
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Article 2, Section 1, Clause 2
(The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.) (This clause in parentheses was superseded by the 12th Amendment.)
Article 2, Section 1, Clause 3
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Amendment 12 - Choosing the President, Vice-President. Ratified 6/15/1804.
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Amendment 14 - Citizenship Rights. Ratified 7/9/1868.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Amendment 15 - Race No Bar to Vote. Ratified 2/3/1870.
1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Amendment 17 - Senators Elected by Popular Vote. Ratified 4/8/1913.
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most
numerous branch of the State legislatures.
Amendment 19 - Women's Suffrage. Ratified 8/18/1920.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Amendment 23 - Presidential Vote for District of Columbia. Ratified 3/29/1961.
Amendment 25 - Presidential Disability and Succession. Ratified 2/10/1967.
2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
4b. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon
Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Amendment 26 - Voting Age Set to 18 Years. Ratified 7/1/1971.
1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) (The preceding words in parentheses superseded by 17th Amendment, section 1.) for six Years; and each Senator shall have one Vote.
Article 1, Section 3, Clause 4
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
Article 1, Section 7, Clause 2
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Article 1, Section 7, Clause 3
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Article 2, Section 1, Clause 2
(The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.) (This clause in parentheses was superseded by the 12th Amendment.)
Article 2, Section 1, Clause 3
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Amendment 12 - Choosing the President, Vice-President. Ratified 6/15/1804.
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Amendment 14 - Citizenship Rights. Ratified 7/9/1868.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Amendment 15 - Race No Bar to Vote. Ratified 2/3/1870.
1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Amendment 17 - Senators Elected by Popular Vote. Ratified 4/8/1913.
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most
numerous branch of the State legislatures.
Amendment 19 - Women's Suffrage. Ratified 8/18/1920.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Amendment 23 - Presidential Vote for District of Columbia. Ratified 3/29/1961.
Amendment 25 - Presidential Disability and Succession. Ratified 2/10/1967.
2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
4b. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon
Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Amendment 26 - Voting Age Set to 18 Years. Ratified 7/1/1971.
1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Yes, There Is A Right To Vote In The Constitution
Tom Donnelly | September 18, 2012
One constitutional argument that’s always confused us around here at Constitutional Accountability Center is the claim that there’s no right to vote in the Constitution – a claim even made by some of our progressive friends. In a recent piece in the Atlantic, Professor Garrett Epps explains the origins of this claim and offers an extensive (and persuasive) rebuttal. It’s well worth a read.
As Professor Epps makes clear, not only is there a right to vote in the Constitution, but it’s the single right that appears most often in the Constitution’s text – five times in all. In fact, four separate Amendments – the 15th, 19th, 24th, and 26th – even use the same powerful language to protect it: “The right of citizens of the United States to vote shall not be denied or abridged . . . .” Of course, like every other constitutional right, the right to vote is subject to reasonable restrictions. Nevertheless, it’s just as much a constitutional right as any other embodied in our Constitution.
Check out Professor Epps’s piece for yourself. It’s a great way to continue to reflect on one of our most cherished constitutional rights in honor of the Constitution’s 225th anniversary.
Tom Donnelly | September 18, 2012
One constitutional argument that’s always confused us around here at Constitutional Accountability Center is the claim that there’s no right to vote in the Constitution – a claim even made by some of our progressive friends. In a recent piece in the Atlantic, Professor Garrett Epps explains the origins of this claim and offers an extensive (and persuasive) rebuttal. It’s well worth a read.
As Professor Epps makes clear, not only is there a right to vote in the Constitution, but it’s the single right that appears most often in the Constitution’s text – five times in all. In fact, four separate Amendments – the 15th, 19th, 24th, and 26th – even use the same powerful language to protect it: “The right of citizens of the United States to vote shall not be denied or abridged . . . .” Of course, like every other constitutional right, the right to vote is subject to reasonable restrictions. Nevertheless, it’s just as much a constitutional right as any other embodied in our Constitution.
Check out Professor Epps’s piece for yourself. It’s a great way to continue to reflect on one of our most cherished constitutional rights in honor of the Constitution’s 225th anniversary.
Voting: Right or Privilege?
Garrett Epps | Sep 18 2012, 11:49 AM ET
The Constitution mentions "the right to vote" five times. Judges, and voter ID law proponents, don't seem to be getting the hint.
The Constitution mentions "the right to vote" five times. Judges, and voter ID law proponents, don't seem to be getting the hint.
Which constitutional right is the most important? You might answer "freedom of speech" or "free exercise" of religion. Some think it's "the right to keep and bear arms." Criminal lawyers think of the guarantee against "unreasonable searches and seizures," trial lawyers of jury trial in civil cases.
But which right appears most often in the Constitution's text?
It's "the right to vote."
In voter ID cases all over the country, courts are considering the proper level of "scrutiny" to apply to "burdens" on the right to cast a ballot. In 2008, the Supreme Court approved an Indiana voter ID law, even conceding that it had a partisan basis, because it was not "excessively burdensome" to most voters. (Justice Antonin Scalia, writing for himself and Chief Justice John Roberts and Justice Samuel Alito, concurred separately to suggest that the proper level of scrutiny was more like "whatever the legislature wants.")
Courts will defer to the wishes of legislators who wish to protect the election process. There was no evidence of fraud in the Indiana case; there's none in the Pennsylvania case or the others currently being heard. State officials claimed to be worried that someone somewhere might think there was fraud.
This is deference to bureaucrats that neither courts nor citizens would tolerate where a right considered truly important is at stake. Consider the right to free speech. The majority in Citizens United brushed aside public perceptions of corruption to allow unlimited "independent expenditures," even though far more citizens are cynical about campaign donations than about "fraudulent" voters. What about freedom of religion? Would we tolerate licensing of churches so atheists won't worry that "fraudulent" religion is being practiced?
Scholars and courts often note that the Constitution nowhere says, "All individuals have the right to vote." It simply rules out specific limitations on "the right to vote." A right not guaranteed in affirmative terms isn't really a "right" in a fundamental sense, this reading suggests.
But if the Constitution has to say "here is a specific right and we now guarantee that right to every person," there are almost no rights in the Constitution. Linguistically, our Constitution is more in the rights-preserving than in the right-proclaiming business. The First Amendment doesn't say "every person has the right to free speech and free exercise of religion." In the Second, the right to "keep and bear arms" isn't defined, but rather shall not be "abridged." In the Fourth, "[t]he right of the people to be secure ... against unreasonable searches and seizures" isn't defined, but instead "shall not be violated." In the Seventh, "the right of (civil) trial by jury" -- whatever that is -- "shall be preserved." And so on.
In those terms, it ought to mean something that the right to vote is singled out more often than any other. Section 2 of the Fourteenth Amendment imposes a penalty upon states that deny or abridge "the right to vote at any [federal or state] election ... to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, ... except for participation in rebellion, or other crime." The Fifteenth states that "[t]he right of citizens of the United States to vote" can't be abridged by race; the Nineteenth says that the same right can't be abridged by sex; the Twenty-Fourth says that "the right of citizens of the United States to vote" in federal elections can't be blocked by a poll tax; and the Twenty-Sixth protects "[t]he right of citizens of the United States, who are eighteen years of age or older, to vote."
So if our courts treat the ballot as less than a fundamental right, they aren't reading that in the Constitution, but projecting it onto the Constitution. The projection comes from a longstanding belief that the vote is not a "right," but a "privilege" -- something granted by the powerful to the deserving.
The "privilege" theory is one the United States regards as dangerous -- when practiced by other countries. After World War II, we imposed a constitution on Japan providing that "universal adult suffrage is guaranteed." The "Basic Law" of Germany gained a provision that "[a]ny person who has attained the age of eighteen shall be entitled to vote." The citizens of Afghanistan "have the right to elect and be elected." Article 20 of the 2005 Constitution of Iraq provides that "Iraqi citizens, men and women, shall have the right to participate in public affairs and to enjoy political rights including the right to vote, elect, and run for office."
Americans are more conflicted about our own voters than about those in Iraq or Germany. Eric Foner, DeWitt Clinton Professor of History at Columbia University, told me that since the country's founding, Americans have been torn between "voting as a right and voting as something that only the right people should do." Every step forward in human rights has given birth to a desire to "purify the electorate." Some Northern Republicans wanted to exclude "disloyal" pro-Southern Democrats and newly arrived immigrants from the ballot; Southern Democrats were adamant that freed slaves should not vote. As democratic devices like the referendum and initiative took hold in the 20th century, the pressure to purify grew. "The more you enhance the power, the more you want to make sure the right people vote," Foner said.
Harvard Professor Alex Keyssar, author of The Right to Vote: The Contested History of Democracy in the United States, noted that the current moment bears a strong resemblance to the late 19th and early 20th century. Like the 1960s, the post-Civil War period brought an extension of the vote. In the generation following, "you have close national elections and a lot of competition -- and very, very high levels of immigration coming decades after the barriers to the vote have been lowered," he said. Even progressive reformers supported devices to make sure "ignorant" votes didn't swamp those of the educated. In some states, naturalized citizens were required to bring their naturalization papers to the polls, he noted; Northern states instituted literacy tests just like Southern ones.
The demographic panic of that era led by 1920 to a cutback on immigration and a crackdown on dissent. That same panic is loose today in a number of state capitals, as the population grows less white, less Anglophone, and less Christian. "Real" Americans -- who tend to vote Republican -- are afraid of being swamped by ethnic, religious, and racial "minorities." Those votes look might fraudulent all of a sudden.
Eric Foner notes that Americans like to regard our history as a steady, if slow, forward march for democracy. The reality is much more complex. "It's not just a story of expanding the right to vote. It has expanded and contracted," he says.
We may be living in one of the periods of contraction. If so, we should be aware that we are turning away from the text of our own fundamental law, from the only just basis for self-government, and from the standards of human rights Americans have tried, sometimes by force of arms, to impose on the rest of the world.
But which right appears most often in the Constitution's text?
It's "the right to vote."
In voter ID cases all over the country, courts are considering the proper level of "scrutiny" to apply to "burdens" on the right to cast a ballot. In 2008, the Supreme Court approved an Indiana voter ID law, even conceding that it had a partisan basis, because it was not "excessively burdensome" to most voters. (Justice Antonin Scalia, writing for himself and Chief Justice John Roberts and Justice Samuel Alito, concurred separately to suggest that the proper level of scrutiny was more like "whatever the legislature wants.")
Courts will defer to the wishes of legislators who wish to protect the election process. There was no evidence of fraud in the Indiana case; there's none in the Pennsylvania case or the others currently being heard. State officials claimed to be worried that someone somewhere might think there was fraud.
This is deference to bureaucrats that neither courts nor citizens would tolerate where a right considered truly important is at stake. Consider the right to free speech. The majority in Citizens United brushed aside public perceptions of corruption to allow unlimited "independent expenditures," even though far more citizens are cynical about campaign donations than about "fraudulent" voters. What about freedom of religion? Would we tolerate licensing of churches so atheists won't worry that "fraudulent" religion is being practiced?
Scholars and courts often note that the Constitution nowhere says, "All individuals have the right to vote." It simply rules out specific limitations on "the right to vote." A right not guaranteed in affirmative terms isn't really a "right" in a fundamental sense, this reading suggests.
But if the Constitution has to say "here is a specific right and we now guarantee that right to every person," there are almost no rights in the Constitution. Linguistically, our Constitution is more in the rights-preserving than in the right-proclaiming business. The First Amendment doesn't say "every person has the right to free speech and free exercise of religion." In the Second, the right to "keep and bear arms" isn't defined, but rather shall not be "abridged." In the Fourth, "[t]he right of the people to be secure ... against unreasonable searches and seizures" isn't defined, but instead "shall not be violated." In the Seventh, "the right of (civil) trial by jury" -- whatever that is -- "shall be preserved." And so on.
In those terms, it ought to mean something that the right to vote is singled out more often than any other. Section 2 of the Fourteenth Amendment imposes a penalty upon states that deny or abridge "the right to vote at any [federal or state] election ... to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, ... except for participation in rebellion, or other crime." The Fifteenth states that "[t]he right of citizens of the United States to vote" can't be abridged by race; the Nineteenth says that the same right can't be abridged by sex; the Twenty-Fourth says that "the right of citizens of the United States to vote" in federal elections can't be blocked by a poll tax; and the Twenty-Sixth protects "[t]he right of citizens of the United States, who are eighteen years of age or older, to vote."
So if our courts treat the ballot as less than a fundamental right, they aren't reading that in the Constitution, but projecting it onto the Constitution. The projection comes from a longstanding belief that the vote is not a "right," but a "privilege" -- something granted by the powerful to the deserving.
The "privilege" theory is one the United States regards as dangerous -- when practiced by other countries. After World War II, we imposed a constitution on Japan providing that "universal adult suffrage is guaranteed." The "Basic Law" of Germany gained a provision that "[a]ny person who has attained the age of eighteen shall be entitled to vote." The citizens of Afghanistan "have the right to elect and be elected." Article 20 of the 2005 Constitution of Iraq provides that "Iraqi citizens, men and women, shall have the right to participate in public affairs and to enjoy political rights including the right to vote, elect, and run for office."
Americans are more conflicted about our own voters than about those in Iraq or Germany. Eric Foner, DeWitt Clinton Professor of History at Columbia University, told me that since the country's founding, Americans have been torn between "voting as a right and voting as something that only the right people should do." Every step forward in human rights has given birth to a desire to "purify the electorate." Some Northern Republicans wanted to exclude "disloyal" pro-Southern Democrats and newly arrived immigrants from the ballot; Southern Democrats were adamant that freed slaves should not vote. As democratic devices like the referendum and initiative took hold in the 20th century, the pressure to purify grew. "The more you enhance the power, the more you want to make sure the right people vote," Foner said.
Harvard Professor Alex Keyssar, author of The Right to Vote: The Contested History of Democracy in the United States, noted that the current moment bears a strong resemblance to the late 19th and early 20th century. Like the 1960s, the post-Civil War period brought an extension of the vote. In the generation following, "you have close national elections and a lot of competition -- and very, very high levels of immigration coming decades after the barriers to the vote have been lowered," he said. Even progressive reformers supported devices to make sure "ignorant" votes didn't swamp those of the educated. In some states, naturalized citizens were required to bring their naturalization papers to the polls, he noted; Northern states instituted literacy tests just like Southern ones.
The demographic panic of that era led by 1920 to a cutback on immigration and a crackdown on dissent. That same panic is loose today in a number of state capitals, as the population grows less white, less Anglophone, and less Christian. "Real" Americans -- who tend to vote Republican -- are afraid of being swamped by ethnic, religious, and racial "minorities." Those votes look might fraudulent all of a sudden.
Eric Foner notes that Americans like to regard our history as a steady, if slow, forward march for democracy. The reality is much more complex. "It's not just a story of expanding the right to vote. It has expanded and contracted," he says.
We may be living in one of the periods of contraction. If so, we should be aware that we are turning away from the text of our own fundamental law, from the only just basis for self-government, and from the standards of human rights Americans have tried, sometimes by force of arms, to impose on the rest of the world.
Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.
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