A Missing Foundation For Democracy: A Right To Vote by Jeff Milchen

Maybe it's a mean streak in me, but as I hear repeated exhortations to do my civic duty at this time of year by "exercising my right to vote," I've been known to goad a particularly earnest person with the comment, "but I don't have a right to vote."

Confusion turns to bewilderment when I add, "and neither do you."

Let me explain. It's true that the 15th, 19th, and 26th Amendments to our Constitution refer to a right to vote in the course of prohibiting voting discrimination on the basis of race, sex, or (adult) age, but those protections are hollow because all citizens may be disenfranchised (stripped of voting privileges) so long as it is done without bias. Voting is presently a privilege that may be granted or revoked at the discretion of government officials.

While numerous electoral reforms have been debated since the 2000 presidential election debacle, we should first establish a long-neglected foundation of democracy -- one that already exists in at least 135 nations -- by amending our Constitution to guarantee our right to vote and to have our votes count equally. By securing a right to vote as an inherent right of citizenship, numerous other crucial reforms will be more achievable.

For example, an affirmative right to vote would have armed Florida residents to fight victimization by state officials who purged legally registered citizens (most of them black and/or Hispanic) from the voter rolls. Presently any state has the power to refuse or ignore our votes in presidential elections, and as Florida's legislature asserted in 2000, any state legislature may simply choose electors with no voter input whatsoever.

A right to vote would enable citizens to challenge anti-democratic structures that routinely prevent citizens in several states from enjoying a choice other than Democrats or Republicans. For example, Georgia has institutionalized two-party dominance with no outside competition by requiring independent or "third party" candidates for U.S. Representative to gather signatures from five percent of registered voters, a feat that no person has accomplished in nearly 40 years.

While we lack an affirmative right to vote, state officials can and do permanently disenfranchise a citizen for a past felony, even after a sentence is served. Offenses that are misdemeanors in some states are used to deny voting rights in others. Virginia, for instance, strips citizens of voting privileges for life simply for possessing a certain quantity of marijuana. Regardless of one's position on drug offenses, we should recognize that blocking ex-offenders from political participation undermines the process of re-integrating persons into society as productive, engaged citizens.

Then there's the perennial case of Washington D.C. residents, who lack voting representation in Congress entirely. Just months before the Supreme Court decided the 2000 election in Bush v. Gore, a majority of the justices ruled that the nearly 600,000 residents of Washington D.C. have no legal recourse for their lack of representation. In that case, Alexander v. Mineta, the Court majority stated explicitly that our Constitution "does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote."

Though Washington D.C. residents outnumber those of some entire states and pay taxes like the rest of us, they have no say in the federal laws under which they must live. If that were changed, the capital would be the only U.S. Senate district with a black majority, but bills to right this situation are held hostage by partisan politics.

Those who think the Supreme Court could rectify such injustice through a more generous interpretation of our Constitution might wait a long time. In Bush v. Gore the majority reinforced the idea that "the individual citizen has no federal constitutional right to vote..." Although their statement refers to electoral votes for the presidency, it reinforces the reality that voting is a privilege granted at the discretion of those in power.

Though some may consider the legal reasoning in that decision dubious, the Supreme Court is not to blame when it comes to voting rights; the justices have interpreted our Constitution correctly. It is the job of citizens to demand an amendment that will guarantee what American University law professor Jamin Raskin aptly calls "the right of the people to vote and, therefore, to govern."

While most Americans assume universal suffrage to be a struggle already won, a Constitutional right to vote is the next vital step toward realizing the goal of one person, one vote.

Constitutional Law Professor Jamin Raskin has proposed the following language to amend the constitution:

Amendment XXVIII: To Establish a Constitutional Right to Vote

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.

Section 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.

Representative Jesse Jackson Jr. (D-Illinois) also has proposed a resolution to amend the Constitution with a right to vote, House Joint Resolution 72 (introduced November 6, 2001). It was referred to the Subcommittee on the Constitution on 11/27/2001, but no subsequent action has occurred.

Jeff Milchen directs ReclaimDemocracy.org and can be reached via e-mail at Jeff@ReclaimDemocracy.org

Jeff Milchen

Tuesday, November 5, 2002