By Jeff Milchen
The original version of this commentary was published in several periodicals in 2001 and 2002. Sadly, this issue has proven “evergreeen,” as discussed in this April 2020 commentary: Dying to Vote: A Warning for November
As thousands of civil rights advocates celebrated the 40th anniversary of the Voting Rights Act (VRA) in Atlanta last weekend, most media coverage conveyed the Act’s importance in protecting the political rights of many Americans. Yet many of those same stories helped perpetuate a dangerous illusion by asserting the 15th Amendment secured a right to vote for Black citizens.
The Supreme Court doesn’t see it that way.
In its 2000 ruling, Alexander v Mineta, the Court decided the 600,000 or so (mostly Black) residents of Washington D.C. have no legal recourse for their complete lack of voting representation in Congress (they have one “representative” in the House who can speak, but cannot vote).
The Court affirmed the district court’s interpretation that our Constitution “does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote.” And state legislatures wield the power to decide who is “qualified.”
As a result, voting is not a right, but a privilege granted or withheld at the discretion of local and state governments.
True, our Constitution explicitly prohibits discrimination in granting the franchise based on a person’s race, sex, or (adult) age via the 15th, 19th, and 26th Amendments. The 24th Amendment also bars disenfranchisement via poll taxes. But those protections are like a house with no foundation. States and other governments can and do disenfranchise individuals and groups of citizens, and so long as they do it without provable bias, it’s entirely legal.
Washington, D.C. residents are not the only victims. Without an affirmative right to vote, Americans repeatedly are disenfranchised or otherwise deprived of their political voice and denied a legal basis for retrieving it.
Just months after the Alexander decision, a 5-4 Court majority in Bush v. Gore denied Florida citizens a right to ensure their votes were counted, saying “the individual citizen has no federal constitutional right to vote [for presidential electors].” Tens of thousands of Floridians who were purged wrongly from the voting rolls were denied recourse against Republican state officials who, under the guise of preventing felons from voting, disenfranchised them.
The Bush v. Gore ruling also meant Florida ‘s legislators could have followed through on their threats to simply disregarded citizens’ votes and choose electors themselves.
Our lack of a right to vote also weakens legal arguments for challenging anti-democratic structures that routinely prevent citizens in several states from enjoying a choice other than Democrats or Republicans at the polls. Georgia, for example, has institutionalized a two-party duopoly, devoid of outside competition, by requiring independent or “third party” candidates for U.S. Representative to gather signatures from 5% of registered voters, a feat not accomplished since before the VRA.
Worse, Georgia and Indiana recently passed laws requiring government photo identification to vote, despite lacking any evidence that people are impersonating others at the voting booth. Georgia’s law must first be approved by the Department of Justice under a provision of the VRA requiring jurisdictions “with a history of discrimination” to gain approval from the DOJ before changing voting laws.
If these laws take effect, a disproportionate number of minority, poor and elderly people who lack ID will be dissuaded from voting. This is exactly the kind of discriminatory scheme the VRA was created to stop, but so long as voting is a state-granted privilege rather than a right, courts are likely to let the law stand.
While we speak of “spreading democracy” globally, the U.S. is one of just 11 nations among 120 or so constitutional democracies that fail to guarantee a right to vote in their constitutions.
Although many constitutional scholars reject the Supreme Court’s reasoning in denying such a right, blaming the justices will not solve our problem. It’s time we caught up with our own rhetoric by amending our Constitution to transform a right to vote from myth to reality.