Americans Have No Constitutional 'Right' to Vote

By Rich Lewis, CP Op-Ed Contributor Monday, March 04, 2013

The online comments on my Jan. 27 column in my local newspaper, The Sentinel, included a spirited debate between me and a reader calling himself "Sokrates" over whether Americans have a constitutional right to vote.

I said we have no such right. He insisted that we do.

"Your claim that there is no constitutional right to vote is shocking, especially when five out of 27 Amendments specifically identify it," he wrote, adding it is "the most strongly substantiated right we have."

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This is a good time to revisit that question because the Supreme Court heard arguments this week on whether it should strike down the central provision of the Voting Rights Act (VRA) of 1965.

The case, Shelby County v. Holder, is not only important in itself, but also helps to explain how Sokrates and I are both correct.

So let's try to sort this out.

The fact is the Constitution does not contain an affirmative voting right - that is, no positive language stating a right to vote for president or members of Congress.

The Supreme Court itself recognized this in 2000 in Bush v. Gore.

"The individual citizen has no federal constitutional right to vote for electors for the President of the United States," the majority opinion states, "unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College."

The court then acknowledges that a state legislature could, if it wanted, take the presidential vote away from individual citizens and "select the electors itself." If that happened in your state, you would have no grounds for claiming your constitutional right to vote had been violated - because you don't have one unless the state "chooses" to allow it.

As for the U.S. House and Senate, the Constitution says the members shall be elected "by the people," but states decide just who "the people" are. Blacks, women and 18-year-olds weren't considered "people" for a long time. Some states today deny felons the vote temporarily, some permanently and some never.

So that's my side of the story - we have no affirmative, constitutional right to vote. Any good constitutional lawyer would agree with that statement.

But Sokrates also has a good argument. He cites Article 1 of the Constitution, and the later amendments that outlawed voter discrimination based on race, sex and age - and concludes "the right is in the Constitution, identified in plain language numerous times."

The problem in Article 1 is that part about "the people." And the amendments are negative protections - prohibiting states from deciding you're not one of "the people" for those specific reasons.

However, a determined state could find other reasons.

Which brings us back to the Voting Rights Act.

In 1965, Congress acknowledged that some states would do anything to dodge these negative protections in order to stop black citizens from voting. For example, they imposed poll taxes and literacy tests, which didn't discriminate on the basis of race, sex or age but invariably excluded black voters way more than white voters - which was the goal.

And some states are still at it. A prominent Republican state legislator gleefully boasted last summer that Pennsylvania's voter ID law would suppress the state's Democratic (read: black) vote and ensure Mitt Romney a victory here. A court temporarily blocked the law; President Obama carried the state.

Other states have attempted to keep targeted groups from voting by gerrymandering, selectively purging voter rolls, restricting voting hours, erecting barriers to voter registration and strategically misallocating resources. No sex, race or age discrimination, but effective nonetheless.

The VRA stops states with a history of such behavior by requiring federal review of proposed changes in their voting rules. Advocates say the reviews must continue to protect blacks, Hispanics and other minorities. The New York Times, for example, editorialized that voter-ID laws and similar tactics "offer incontestable proof of the need for strict voting rights laws."

VRA opponents, on the other hand, say the review requirement is based on old data about discrimination and should be struck down. Justice Antonin Scalia called the provision a "perpetuation of racial entitlement."

The key point is that the case arises because we have no affirmative right to vote, and Congress and the courts are continually dealing with efforts to evade that patchwork of negative voting protections.

And yes, those legislative and judicial efforts to protect the vote have been very effective. Legal analyst Jeffrey Toobin believes that all the shenanigans to suppress voting have provoked a legal backlash that "may end up establishing that there is a right to vote in the U.S. after all." Note the word "may."

So in that sense, Sokrates is right - we do have a stitched-together "right" to vote that offers many protections.

But is that really as good as an actual, affirmative right to vote?

Clearly not.

We should just enshrine that right in the Constitution, in plain English.

We could then finally say, without qualification or complicated explanations, "Yes, in the United States, we have a constitutional right to vote."