**FIGHTING FOR A *RIGHT TO VOTE* CONSTITUTIONAL AMENDMENT**

Position Paper Presented At The Center For Voting & Democracy\'s

\"Claim Democracy Conference\"

By Congressman Jesse L. Jackson, Jr.

American University\'s Washington College of Law, Washington, DC

Saturday, November 22, 2003

Most Americans believe that the \"legal right to vote\" in our democracy
is explicit (not just implicit) in our Constitution and laws. However,
our Constitution only provides for ***non-discrimination in voting*** on
the basis of race, sex, and age in the 15th, 19th and 26th Amendments
respectively.

**The U.S. Constitution contains no explicit affirmative individual
right to vote!**

Even though the \"vote of the people\" is perceived as supreme in our
democracy - because voting rights are protective of all other rights -
the Supreme Court in ***Bush v. Gore*** constantly reminded lawyers that
there is no explicit or fundamental right to suffrage in the
Constitution - \"the individual citizen has no federal constitutional
right to vote for electors for the President of the United States.\"
(*Bush v. Gore*, 531 U.S. 98, 104 (2000)

Chief Justice William Rehnquist and Associate Justice Antonin Scalia
besieged Gore\'s lawyer with inquiries premised on the assumption that
there is no constitutional right of suffrage in the election of a
president, and state legislatures have the legal power to choose
presidential electors without recourse to a popular vote. \"In the eyes
of the \[Supreme\] Court, democracy is rooted not in the right of the
American people to vote and govern but in a set of state-based
institutional arrangements for selecting leaders.\" (*Overruling
Democracy - The Supreme Court v. The American People*, By Jamin B.
Raskin, p. 7)

While a voting rights constitutional amendment would be strictly
non-partisan, never-the-less, the 2000 election is a splendid example of
the undemocratic nature of our currently administered election systems -
and there are literally thousands of them. Each state and the District
of Columbia (51), counties (3,067), and thousands of municipalities
administer their own election system under **state** law, with great
flexibility on many issues in the variously administered voting
jurisdictions. That\'s the chaotic dynamic that was in play in
Florida\'s 67 counties.

In 2000, if every American had had an ***individual*** constitutional
right to vote, every vote would have had to be counted. However, under
our current \"states\' rights\" arrangement the **state legislature**
and **state law** took legal precedence over the **individual vote** and
the **individual voter**.

It is also important to point out that if candidate George Bush had lost
in the Supreme Court in 2000, Florida\'s Republican-controlled
legislature was prepared to ignore the six million popular votes cast in
Florida. Under **state law**, they were determined to elect, select,
choose, and hand pick, if necessary, their own \"Bush presidential
electors\" and send them to Congress for certification - even if it had
turned out that Al Gore won the most popular votes in Florida.

Thus, in terms of the political consequences of our present arrangement,
if all of the votes legally cast in 2000 had been counted, Al Gore and
not George Bush would be President of the United States today.

The principled commitment ought to be to honest, fair and efficient
elections **for everyone, for all time**. However, after 2000, any
Democrat who cannot support adding a voting rights amendment to the
Constitution ought to be asked to explain why!

Thus, even if all votes had been counted and Al Gore had won Florida\'s
popular vote, and his electors had been sent to Congress, under our
current Constitution the Florida legislature could have sent their slate
of Bush electors to Congress and it would have been perfectly legal -
and a \"strict constructionist\" or necessary constitutional
interpretation - for Congress to have recognized the Bush electors.

Only a Voting Rights Amendment can fix these flaws in our Constitution
and administration of elections.

The 10th Amendment to the Constitution states: \"The powers not
delegated to the United States by the Constitution, nor prohibited by it
to the State, are reserved to the States respectively, or to the
people.\" Since the word \"vote\" appears in the Constitution only with
respect to ***non-discrimination***, the so-called ***right to vote***
is a \"state right.\" ***Only*** a constitutional amendment would give
every American ***an individual affirmative citizenship right to
vote***.

Without the constitutional right to vote, Congress can pass voter
legislation - and I support progressive electoral reform legislation -
but it leaves the \"states\' rights\" ***system*** in place. Currently,
Congress mostly uses financial and other incentives to entice the states
to cooperate and comply with the law. It\'s one reason there have been
so many problems with the recently passed Help America Vote Act, and why
many states still have not fully complied with the law.

Our \"states\' rights\" voting system is ***structured*** to be
\"***separate and unequal***.\" As we saw in the 2000 election, there
are 50 states, 3,067 counties, tens of thousands of cities, and many
different machines and methods of voting - all \"separate and unequal.\"

There\'s ***ONLY ONE WAY*** to legally guarantee \"an equal right to
vote\" to every individual American and that is to add a Voting Rights
Amendment to the Constitution!

The lack of basic political rights for all Americans was made even
clearer in ***Alexander v. Mineta***, a case to gain political
representation for the disenfranchised citizens in our nation\'s
capitol, the District of Columbia. Ignoring the democratic ideal of
voting, the court said, \"The Equal Protection Clause does not protect
the right of all citizens to vote, but rather the right of all
*qualified* citizens to vote\" (***Alexander v. Daley***, 90 F. Supp.
2d, 35, 66, emphasis added) \"To be qualified, you must belong to a
\`state\' within the meaning of Article I and the Seventeenth Amendment
and must be granted the right to vote by the state.\" (*Overruling
Democracy - The Supreme Court vs. The American People*, By Jamin B.
Raskin, p. 36)

I believe that voting is not only a ***democratic right***, it\'s a
***human right***. That human right is not in our Constitution! That\'s
why I have proposed legislation to add a voting rights amendment to the
U.S. Constitution based on the INDIVIDUAL RIGHT of all Americans to
vote. It was introduced in the U.S. House as House Joint Resolution 28.
It reads as follows:

Resolved by the Senate and House of Representatives of the United States
of America in Congress assembled (two-thirds of each House concurring
therein), That the following article is proposed as an amendment to the
Constitution of the United States, which shall be valid to all intents
and purposes as part of the Constitution when ratified by the
legislatures of three-fourths of the several States:

**\`SECTION 1**. All citizens of the United States, who are eighteen
years of age or older, shall have the right to vote in any public
election held in the jurisdiction in which the citizen resides. The
right to vote shall not be denied or abridged by the United States, any
State, or any other public or private person or entity, except that the
United States or any State may establish regulations narrowly tailored
to produce efficient and honest elections.

**\`SECTION 2**. Each State shall administer public elections in the
State in accordance with election performance standards established by
the Congress. The Congress shall reconsider such election performance
standards at least once every four years to determine if higher
standards should be established to reflect improvements in methods and
practices regarding the administration of elections.

**\`SECTION 3**. Each State shall provide any eligible voter the
opportunity to register and vote on the day of any public election.

**\`SECTION 4**. Each State and the District constituting the seat of
Government of the United States shall establish and abide by rules for
appointing its respective number of Electors. Such rules shall provide
for the appointment of Electors on the day designated by the Congress
for holding an election for President and Vice President and shall
ensure that each Elector votes for the candidate for President and Vice
President who received a majority of the popular vote in the State or
District.

**\`SECTION 5**. The Congress shall have power to enforce this article
by appropriate legislation.\'

With this amendment in the Constitution, ***all of the votes*** in
2000 - to the best of our human ability and using credible and uniform
criteria - would have had to have been counted. No unnecessary or
arbitrary timeline cutoff would have been allowed with regard to
counting votes. And the Florida legislature could not have even thought
about ***ignoring the six million popular*** Florida votes in order to
***select*** presidential electors independent of the popular vote.
Under this amendment, the popular vote could never be ignored and an
independent legislative selection of electors could never happen.

In light of the presidential fiasco in Florida in 2000, and during the
South Carolina Democratic presidential candidate\'s debate on May 3,
2003, Rev. Al Sharpton asked Florida Senator, Bob Graham, if he would
support adding a voting rights amendment to the Constitution. In essence
he said the following: \"I haven\'t seen the legislation, but probably
not. I believe states should remain in control of election procedures.
And I\'m against federalizing the election process.\"

Let\'s analyze his statement.

1\. It means Senator Graham essentially supports the *status quo* when
it comes to voting rights because, under current law, 2000 could happen
again in Florida or elsewhere. The winner of the popular vote losing has
happened three previous times in our history - 1824, 1876 and 1888. Most
Americans are totally unaware that, nationally, according to a joint
study by the California Institute of Technology and Massachusetts
Institute of Technology, somewhere between four and six million votes
were not counted in 2000 because many states had similar problems to
what occurred in Florida. Other states\' election systems didn\'t get
the same exposure as Florida\'s because the winner in other states was
not in doubt. For example, Illinois was worse than Florida - it didn\'t
count nearly 200,000 votes with similar problems to Florida\'s - but
because Gore won Illinois by over 300,000 votes, the winner of the
state\'s electoral votes was not in doubt. In Illinois and other states
too, most of the problems - with voting and machines - were concentrated
in the poor and minority communities.

\"Amazingly, the government of the United States conducts and provides
no official count of the vote for president.\" (*Overruling Democracy -
The Supreme Court vs. The American People*, by Jamin B. Raskin, p. 66)
Can you imagine the United States recognizing a close and hotly
contested third world \"democratic\" election where the citizens had no
right to vote, as much as six percent of the total vote was not counted;
where there was no official results provided by the government; and
where that country\'s Supreme Court declared it\'s personal and
ideological friend the winner, even though the declared winner did not
get the most popular votes?

2\. It means Senator Graham supports \"states\' rights\" when it comes
to voting rights. But I would remind Senator Graham and others, slavery
was not supported directly in the Constitution. The world \"slavery\"
never appeared in the Constitution. Slavery was supported
constitutionally because states had a right - \"states\' rights\" - to
provide legal cover allowing private citizens to own other human beings.
That same states\' rights ***system*** was at work in the 2000 election
with respect to voting and it continues today.

3\. H. J. Res. 28 does not ***federalize*** voting any more than the
First Amendment federalizes free speech or freedom of religion. The
First Amendment\'s right to free speech and religion is an individual
citizenship right applicable to every American - not a \"federal\"
right - protected by the federal government and its courts. It\'s an
individual right that can be upheld in a federal court of law. Likewise,
a voting rights amendment would grant every American an ***individual
citizenship right to vote*** that, because it would be a right for every
American, would ultimately be validated by Congress through legislation,
and the Supreme Court through interpretation.

4\. In essence, then, in the South Carolina debate, Senator Graham chose
\"states\' rights\" over an \"individual right.\"

5\. Attorney General John Ashcroft sent a letter to the National Rifle
Association asserting that every American has an individual
constitutional ***RIGHT TO A GUN***. In it he wrote: \"Let me state
unequivocally my view that the text and the original intent of the
Second Amendment clearly protect the right of individuals to keep and
bear firearms.\" Some agree and others disagree with that
interpretation.

**However, there can be no debate or disagreement about the right to
vote. The Supreme Court made it absolutely clear in *Bush v. Gore* -
there is *NO INDIVIDUAL CITIZENSHIP RIGHT TO VOTE* in the
Constitution!**

If Americans had a choice between the ***RIGHT TO A GUN*** and the
***RIGHT TO VOTE***, it would be nearly unanimous. Americans would
choose the right to vote! If that is the priority of the American
people, then we should have the wisdom and political will to codify it
in the form of a constitutional amendment.

What are the advantages of fighting for human rights and constitutional
amendments? Human rights and constitutional amendments are
***non-partisan*** (they\'re neither Democratic nor Republican),
they\'re ***non-ideological*** (they\'re not liberal, moderate, or
conservative), they\'re ***non-programmatic*** (they don\'t require a
particular means, approach or program to realize them), and they\'re
***non-special interest*** (they\'re for ***all*** Americans). We can
***experiment*** to find the best ***means*** of fulfilling such a
constitutional right!

August 6th was the 38th anniversary of the signing of the 1965 Voting
Rights Act. But the Voting Rights Act is really misnamed and, to some
extent, misleading. It\'s not actually a voting ***rights*** act. In
fulfillment of the 15th Amendment to the Constitution, added in 1870,
the 1965 Voting Rights Act was actually a *Non-Discrimination in Voting
Act*.

To fulfill the democratic ideal, an affirmative voting rights
constitutional amendment still lies in the future. According to
Harvard\'s Constitutional Law Professor Alexander Keyssar
one-hundred-and-eight (108) of the one-hundred-and-nineteen (119)
nations in the world that elect their representatives to all levels of
government in some democratic fashion explicitly guarantee their
citizens the right to vote in their Constitution. Both Afghanistan\'s
Constitution and Iraq\'s interim legal document contains a right to
vote. The United States is one of the eleven nations in the world that
doesn\'t provide an explicit right to vote in its Constitution.

If we pass a new voting rights amendment, the next civil rights movement
will emerge fighting for congressional legislation that can advance even
further the central democratic idea of universal voting - only partially
enabled through the 1965 Voting Rights Act, Motor Voter and the Help
America Vote Act. With a voting rights amendment, a new civil rights
movement would emerge to fight to fully implement the amendment, while
also using the federal courts to interpret voting rights more fully.

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