Academic journal article The William and Mary Bill of Rights Journal

Three Questions for the "Right to Vote" Amendment

Academic journal article The William and Mary Bill of Rights Journal

Three Questions for the "Right to Vote" Amendment

Article excerpt

Should the United States Constitution be amended to guarantee the right to vote? To the average citizen-and probably many lawyers-this almost certainly would be taken as an absurd question. Most people probably assume that the right to vote is, at least in principle, already guaranteed by the Constitution even if our practices fall short of our ideals.1 But, in fact, although the Constitution frequently refers to the "right ... to vote"-and the Supreme Court's jurisprudence has long treated voting as a fundamental right-the right to vote per se is nowhere guaranteed. A right-to-vote amendment would, in the words of the Reverend Jesse Jackson, "[p]ut the right to vote into the Constitution."2 Given the fundamental place of the right to vote in our thinking about democracy, that sounds like an incontestably good idea. But the issue is not as simple as that. Amending the Constitution is sufficiently onerous- requiring initial approval by two-thirds of both the House of Representatives and of the Senate, followed by ratification by the legislatures of three-fourths of the states3- that only twenty-seven amendments have been ratified in the 226 years since the Constitution came into effect, with only two amendments taking effect in the last forty-five years.4 Securing the passage and ratification of a right-to-vote amendment would involve a major effort of political will.5 Would it be worth that effort?

This Essay addresses that question by asking and sketching out answers to three further questions: Why have a right-to-vote amendment? What would it say? And how would it affect some of the most pressing current voting issues? Part I addresses the case for the right-to-vote amendment. It suggests that there are three concerns that support the push for an amendment. The first is simply expressive-the sheer significance of the right to vote in our panoply of political rights requires that it be expressly guaranteed in the Constitution. The second would use the occasion of enacting an amendment to correct recent United States Supreme Court decisions that have left many observers feeling that the right to vote is, currently, inadequately protected. The third, related to the second, would use the amendment to bolster the role of the federal government in enforcing voting rights.

Part II turns to the issue of what would a right-to-vote amendment say. That turns out to be a surprisingly tricky question. Over the last decade, at least three different right-to-vote amendments have been put forward and they differ significantly in length, detail, and focus.6 Virtually every state constitution includes a right to vote provision, yet these, too, differ in their terms.7 The drafting issues reflect the fact that the right to vote is not the negative protection against government action characteristic of most of our rights but an affirmative privilege to participate in a governmentcreated and government-structured electoral process. As a result many right-to-vote proposals specifically-and sometimes differently-address both who has the right to vote and government's authority to regulate voting.

Part III considers how an amendment could affect some of the principal current voting issues. Of course, to a considerable degree that will turn on the text of any amendment, as discussed in Part II. However, it seems doubtful that any likely amendment would address some hotly contested issues-such as minority vote dilution, partisan gerrymandering, or ballot access for third parties and independent candidates-that do not directly involve casting ballots. It is also unclear whether an amendment would enfranchise currently disenfranchised groups or directly address those controversial administrative regulations-such as photo identification or proof-of-citizenship requirements-that can make it difficult for qualified voters to vote. Much would depend on just how vigorously Congress enforces the amendment and how the Supreme Court applies the amendment and the enforcement power, much as the right to vote and federal enforcement authority under the existing voting amendments are shaped by Court decisions concerning what constitute appropriate justifications for government regulations affecting the vote, how narrowly tailored the law must be, how much evidence a government must provide to show that a regulation is warranted, and the role of the federal government in our federal system. …

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