Why America Needs a Right-to-Vote Amendment
By: Michael Austin
Tags: Electoral College, Elections, Electoral Reform, Right To Vote, Politics

The United States Supreme Court in 2000

“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.” — The US Supreme Court in Bush v. Gore (2000), decided by a 5–4 majority

Nearly every American knows deep in their soul that the right to vote is one of the most sacred and basic rights enshrined in the Constitution. Nothing is more important to a functioning democracy than the absolute duty of the government to count every citizen’s vote. What sort of Constitution would not bind a democratic society to protect the franchise above everything else?

Well, our Constitution, for one.

I suspect that the vast majority of Americans would be shocked to find out that there is no affirmative right to vote in the Constitution. Voting by individual citizens is not mentioned at all in the original document, which assumes, but does not require, that states would put some process in place for selecting representatives, senators, and presidents. But there is nothing in the Constitution regulating who can and who cannot be part of that process.

If we make it through the next few months with our democracy intact — and I am optimistic enough to think that we will — we must enshrine the right to vote in our Constitution.

As elections continued to happen, the idea of a “right to vote” emerged, and four different amendments have been passed to prohibit states from restricting that right in four very specific cases:

The 15th Amendment stipulates that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

The 19th Amendment requires that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

The 24th Amendment reads, “The right of citizens of the United States to vote in any primary or other election for President or Vice President for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”

The 26th Amendment insists that “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”

This results in a very strange Constitutional situation: the right to vote does not actually exist, but if a state chooses to let people vote, they cannot discriminate on the bases of race, sex, age (if over 18), or non-payment of a poll tax. But those are the only exceptions. Constitutionally, a state could deny the right to vote to bikers, people with tattoos, red-heads, or Cubs fans.

This is not an accident as much as it is an imperfect attempt to overcome the grave suspicion with which the Founders viewed democracy. They wanted a little bit of it, but not too much, since they were all part of a very privileged leadership caste that viewed actual people with deep suspicion. Voting for most of our founders was like Brylcream: a little dab was all anyone needed. This was the primary motivation behind the Electoral College.

Today, the “Electoral College” is little more than a mathematical formula for distributing votes according to a series of winner-take-all contests in individual states. But that is the accidental function of an institution that was designed to place a level of aristocracy — the rich wellborn, and able — in between the President and the hoi polloi.

The Electoral College was also a compromise at the Constitutional Convention that nobody wanted. A small handful of delegates wanted the president to be elected directly. The vast majority, though, favored selection by the House of Representatives, or by state legislatures, or by an assembly of state governors. Each of these mechanisms benefitted some states and disadvantaged others. If the House of Representatives selected the executive, then the interests of large states would predominate. If governors selected the executive, then smalls states would have just as much influence as large states. And so on.

The delegates eventually landed on the idea of electors who were not otherwise committed to a political agenda and would be apportioned according to both the proportional representation of the House and the equal representation of the Senate. Alexander Hamilton explained the thinking of the Convention in the 68th Federalist Essay:

It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture. It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

This, Hamilton believed, was the perfect compromise between the democratic and the republican forms of government. The people would not actually vote for the president — the issues were too complicated and the people far too uninformed for that to work. But they would vote for a slate of representatives whose only task was to study the issues and the candidates and make the best possible decision on their behalf.

This view of presidential elections was seriously wounded in 1800, when Thomas Jefferson beat John Adams in 1800, and it was vanquished forever in 1828, when Andrew Jackson defeated John Quincy Adams and put an end to the last gasp of the Federalist aristocracy. But it took until the end of the 19th century for all of the states to pass laws assigning their electors to the winner of the popular vote.

And none of this is actually part of the Constitution. States are still free to choose their electors any way that they see fit. They can be chosen by the state legislature, appointed by the governor, or determined by a state-wide Tiddlywinks tournament. Though most people assume that the electoral votes in a state will go to the winner of the popular vote, there is nothing in the Constitution that guarantees it. As our political world becomes more and more divided, parties have begun to lose any incentive to practice restraint. States controlled by one party or the other could very well start to change the way that electors are chosen.

One of our two major parties, it seems, has already figured this out. A story published this week in The Atlantic documents discussions among high-level Republicans that are now occurring involving the legislative or gubernatorial nullification of statewide the popular vote and the direct appointment of electors. Nearly everything that Donald Trump has said in the last three months about mail-in voting has been rooted, not in truth or evidence, but in the knowledge that he is losing badly and will eventually need to argue against the legitimacy of the election process.

Our institutions may be strong enough to withstand the coming assault on democracy if Trump does not win re-election. But just barely. The absence of an affirmative right to vote in the Constitution creates the ambiguity that a skilled demagogue needs to argue against the results of a free and fair election. When combined with a Supreme Court whose justices have been carefully vetted for their loyalty to a political party, and an explicit 2000 precedent declaring that citizens have “no federal constitutional right to vote for electors for the President of the United States,” the ambiguity of our Constitution could mean the end of democracy.

Any significant reform of our election process will require that we amend the Constitution. This is hard to do in a political environment as divided as ours, but a supermajority of our population still seems to believe that voting is a right. We have amended the Constitution four separate times to protect that right, but we have never established the actual, affirmative right that these amendments protect. If we make it through the next few months with our democracy intact — and I am optimistic enough to think that we will — we must enshrine the right to vote in our Constitution.