Readings — From the October 2012 issue

In Search of the Right to Vote

From Electoral Dysfunction, released in September by the New Press, in conjunction with a PBS documentary of the same name.

 
The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case.
—Thomas Paine, Dissertation on First Principles of Government (1795)
 

In 1806, when Thomas Paine walked into his New Rochelle polling station to cast his vote for the congressional election, he was turned away, denied the ballot. The Tory election inspectors asserted that he was not an American and that he had been renounced by George Washington. He told them they were wrong on both counts, but one of the inspectors threatened to have him arrested, and Paine left without voting. He pursued the matter in court and lost. He had no right to vote in the nation that now counts him one of its Founders.

In the two centuries since Paine’s disenfranchisement, the Constitution has been amended numerous times to address voting issues. In the twelve years since the 2000 presidential election, billions of dollars have been thrown at the mechanics of voting—the machines we use, the way we register—and there have been legislative initiatives in almost every state targeting voter-identification requirements as well as early- and absentee-voting rules. But one thing has not changed since the day Paine walked into his New York polling station. The Constitution still does not guarantee the right to vote.

The word “vote” appears in the Constitution as originally drafted only in relation to how representatives, senators, and presidential electors perform their duties. Representatives vote. But the people’s vote is not mentioned. The Constitution gives Congress the right to pass copyright and bankruptcy laws, the right to borrow money, the right to establish post offices, the right to “fix the Standard of Weights and Measures.” Congress was required to keep a journal of its proceedings. Members of Congress were guaranteed a salary. Amid this wealth of detail, scarcely a word is spent on how the people are to vote.

Even in the Bill of Rights, which made a slew of individual rights explicit, the Constitution did not mention a right to vote. The right to assemble and to petition government was established. The right to trial by jury (in civil disputes where the value exceeds $20), to due process of law, to confront witnesses in criminal cases, to keep and bear arms? Yes. Voting rights? No. It’s almost as if in the course of constructing a house, the contractor ordered the windows, curtains, and shingles, but completely forgot about the foundation.

Contrary to many common accounts, the Founders were not stiff-necked, antidemocratic elitists hostile to the swarm of unwashed voters. But during that hot summer in Philadelphia in 1787, the adage that politics is the art of the possible held sway. It was not politically practicable to impose uniform suffrage laws across the former colonies. Was the fragile new federal government really going to tell South Carolina that free blacks could vote? Or was it going to have to do the opposite and tell Massachusetts, which did allow blacks to vote, that it would have to stop? Easier to let state laws and provisions dealing with the vote stand.

After all, almost all elections were local. Only one of the newly created federal offices was originally subject to direct popular vote. Neither senators nor the president were elected by the general population. Only members of the House of Representatives stood before the people for election. Each state was required to have a republican form of government, but no more than that. The Constitution in effect integrated into the new federal system whatever the states said about the right to vote.

Our voting-rights system is a sedimentary formation, its layers laid down and intermingling over centuries with federal and state constitutional provisions, laws, and regulations. Following a civil war, eight constitutional amendments, two monumental protest movements, the youthquake of the 1960s, the transformative lawmaking of Congress in 1965, and the convulsions of the 2000 presidential election, most Americans feel reasonably confident that they have something approaching a right to vote. But on a national level, that right might best be understood in the negative. The Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments to the Constitution provide a measure of protection. The vote cannot be denied to a citizen on the basis of race, gender, age (once the voter is over eighteen), or the ability to pay a poll tax. Beyond that, whether and how one has a right to vote is largely a matter of state law.

If there was any doubt of that, the U.S. Supreme Court made it clear in December 2000, in relation to presidential elections in Bush v. Gore:

The individual citizen has no federal constitutional right to vote for electors for the President of the United 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.

Lest anyone draw comfort from the fact that presidential electors are currently selected by popular vote, the Court hastened to add that “the State legislature’s power to select the manner for appointing electors is plenary,” in other words, absolute.


Citizens of Missouri have the right to vote written into their 1945 constitution: “[N]o power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” But citizens of Indiana, whose constitution was adopted in 1851, do not. Seven years after the Bush v. Gore decision, a group of would-be Indiana voters represented by the state’s Democratic Party pleaded their case before the Supreme Court. They had filed suit against the Marion County Election Board in 2005, after Indiana enacted a new law requiring that all voters present government-issued photo identification when attempting to vote in person at polling places. Opponents of the law were profoundly worried that the requirement would suppress the vote, particularly of the poor and elderly. Every court considering the matter prior to the Supreme Court had upheld the constitutional validity of the identification law.

The voters’ lawyer, Paul Smith, stood before the Supreme Court and began, “Mr. Chief Justice, and may it please the Court: This case involves a law that directly burdens our most fundamental right, the right to vote.” He managed to speak for about fifty seconds before members of the Court began peppering him with questions. What they were curious about, more than anything, was whether and how people were actually going to be affected by this law. Smith told them that it was hard to say. On the low end of the estimates, 1 percent of the voting-age population—about 43,000 people—lacked government-issued photo identification. At the high end, as much as 10 percent of the population—more than 400,000 people—lacked it.

But why not just go get the identification? Both the conservative Chief Justice John Roberts and the more liberal Justice David Souter were curious. How much of a burden could that be? Since a photo identification required a birth certificate, which costs money, and time off work to go to the Bureau of Motor Vehicles, it amounted to a significant burden, Smith argued. With his thirty minutes to speak before the Supreme Court drawing to a close, Smith spoke to Justice John Paul Stevens, widely regarded as one of the swing votes in the case:

What there is in the record, Your Honor, is the testimony from the Lafayette Urban Ministry, which helps the needy in Lafayette, Indiana. They had a hundred and fifty people come to them and say: We want your help to get I.D.’s. A year later, less than seventy-five had succeeded because they found themselves caught in this catch-22, where they went to get a birth certificate, they didn’t have a driver’s license, they didn’t have the other kinds of very narrowly specified I.D.’s they needed, and so they were basically in this bureaucratic maze and they couldn’t get out of it.

Almost four months later, the Court handed down its six-to-three decision in Crawford v. Marion County Election Board. The Indiana law was constitutional.

There was no evidence of the particular type of fraud that the statute sought to prevent, the Court conceded, at any time in Indiana’s history. The state’s voter rolls were a mess, full of registered voters who had died or were otherwise not eligible to vote, but the new law did nothing to clean them up. That was already being done in other ways. There was absolutely no reason for the public to doubt the integrity of the system, which imposed a prison sentence of up to five years for this type of fraud.

Weighing in against the vague and unquantified concern about fraud was the substantial chance that anywhere between 43,000 and 400,000 people would find voting more difficult, if not impossible. The Court granted that the law probably imposed special burdens on the elderly born out of state, the poor, the homeless, people whose birth certificates are hard for them to find, and people with religious objections to being photographed—more than the “usual burdens” on voting that the Court would normally tolerate. But the majority of the justices accepted the state’s solution to the problem: have the would-be voter cast a provisional ballot, and then, by noon ten days after the election, show up at the local circuit court with the requisite identification or qualify for a special exemption.

In June 2006, as Crawford was moving through the courts, Missouri’s state legislature passed a photo-identification law similar to Indiana’s. Four months later, Missouri’s Supreme Court struck down the law. Six of the seven justices had no doubts about Missouri’s position in the voting-rights pecking order: “Due to the more expansive and concrete protections of the right to vote under the Missouri Constitution, voting rights are an area where our state constitution provides greater protection than its federal counterpart.”

Whereas the U.S. Supreme Court uses a “flexible” standard to evaluate laws that affect people’s ability to vote, Missouri courts apply strict scrutiny: “any limitation on a fundamental right must serve compelling state interests and must be narrowly tailored to meet those interests.” Protected by the state’s explicit right to vote, Missouri’s voters went to the polls in 2006, 2008, and 2010. In 2008, nearly 68 percent of the state’s 4.3 million eligible voters cast ballots. In Indiana, 59 percent of the eligible population voted.

The absence of a federal right to vote coupled with the Supreme Court’s inclination to value procedure over real-world voter behavior has dramatic consequences for America’s elections. Voter-registration requirements are convoluted. Voter rolls are purged chaotically. Ballot design is unregulated and amateurish. Polling hours are haphazard. Voting equipment ranges from high-tech to derelict. Vote-counting and -recounting systems are unsystematic. In 1964, the Supreme Court proclaimed that “no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.” But under the decisions of this Court, voters can perhaps be forgiven for feeling occasionally more like mice in a maze than like citizens of a democracy.

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