By Janai S. Nelson
Are today's liberal politicians willing to go to the mat for a seemingly old-fashioned, civil-rights era throwback like the right to vote?
If they care about preserving access to the franchise in the face of the many newfangled voting restrictions that conservatives are now aiming at minority, young or poor voters, they will. And, if they care about advancing the ideals of an inclusive American democracy, they must.
When the members of the Constitutional Convention signed the United States Constitution on September 17, 1787, the democracy we have now was unfathomable. Today, the right to vote is not determined by property ownership, skin color, gender or wealth — as it was legally at the birth of our Constitution and for many decades after. What has remained constant during America's democratic metamorphosis, however, is the absence of an affirmative right to vote. On this Constitution Day, I echo the call to amend our Constitution so that it includes an affirmative right to vote.
Proposals to amend the Constitution to include an affirmative right to vote are usually taken most seriously at the time of general elections, especially for the presidency. That's when the public is most aware of the frailties of our democracy. However, as we celebrate the founding document that has served as a model for democracies the world over, we must consider how to fill its hollow areas.
In the five instances that the right to vote is mentioned in the Constitution, it is presented as a negative right in amendments to the original document. The 14th Amendment, for example, which was ratified after the Civil War in 1868, speaks of reducing states' congressional representation when age-eligible males are denied the right to vote for impermissible reasons. The 15th Amendment, ratified soon after, provides that the "right of citizens of the United States to vote shall not be denied or abridged. . . on account of race, color or previous condition of servitude."
The 19th Amendment, ratified 50 years later, after World War One, gave women the vote, saying the franchise could not be denied because of gender. Then, responding to the civil rights movement, the 24th Amendment prohibited the poll tax, saying the right to vote could not be denied on account of failure to pay any poll or other tax. The most recent amendment involving the right to vote, the 26th, in 1971, says age cannot be the basis of vote denial for citizens 18 years or older.
Since 1886 the Supreme Court has held that the right to vote is a "fundamental political right, because preservative of all rights." However, the tortured history of the right to vote and the government's reluctance to extend it to citizens beyond its original beneficiaries is demonstrated by these amendments that span a century.
Taken together, these laws establish that voting by citizens age 18 and older cannot be restricted on the basis of race, gender or failure to pay a tax. They do not, however, clearly state a positive right to vote.
In fact, the extent we are able to vote at all is determined by the states pursuant to Article 1, Section 4 of the Constitution — otherwise known as the Elections Clause. According to the Elections Clause, states have the authority to prescribe "the time, place, and manner" of elections.
Since the Supreme Court's infamous Bush v. Gore decision that decided the Florida voting debacle during the 2000 general elections, at no time in recent history has the need for a right-to-vote amendment been more pronounced. The court's ruling earlier this year in Shelby County v. Holder, disabling a key provision of the Voting Rights Act of 1965, calls for dramatic congressional action to both rehabilitate that landmark act and recommit to our constitutional ideals.
Congress should take seriously the bill sponsored by Representatives Mark Pocan (D-Wis.) and Keith Ellison (D-Minn.) to amend the Constitution so that it will include an affirmative right to vote.
With the 50th anniversary of the Voting Rights Act of 1965 now less than two years away, this amendment would be a fitting tribute to the bill's legacy. It would also bring our democracy and our Constitution in line with modern international norms of including an affirmative right to vote in founding documents.
What would it take to amend the Constitution to include this affirmative right to vote? Either a super-majority (two-thirds) of both the House and Senate must pass a bill, which would then have to pass two-thirds of the states, or there is the more convoluted process of a Constitutional Convention called by two-thirds of state legislatures. Political will is, of course, key to this process.
A right-to-vote amendment would open the door to voting access for excluded groups, such as the homeless, citizens convicted of a felony, and residents of the District of Columbia, among others. In addition, a constitutional amendment process centered on the right to vote would build civic awareness, inspiring a new vision of participatory democracy.
Without an affirmative right to vote, we are left vulnerable to the whims of partisan politics and inept election administrators to determine when, how and under what conditions we can vote.
So, as we honor our Constitution's birthday, let's not only blow out the candles — let's breathe new life into it with a positive, explicit and unfettered right to vote.
(Janai S. Nelson is associate professor of law and associate director The Ronald H. Brown Center for Civil Rights and Economic Development at St. John's University School of Law. Opinions expressed are those of the author.)