Voting “Rights”?
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The US Supreme Court issued a number of rulings this past term relating to voting. All of the decisions came on requests to intervene with respect to lower court injunctions, and so were issued with limited or no discussion.
In April, the five Republican-appointed justices overturned an order by a Wisconsin district court that would have extended the deadline for mailing absentee ballots as a result of the COVID-19 pandemic. In June, the Court left in place the appellate court’s stay of a district court order that would have permitted all voters in Texas, and not just those 65 or over, to vote by mail. In July, the Court—here again by a 5-4 vote, with the Republican-appointed justices in the majority—stayed a district court order that would have prohibited the imposition by Alabama of certain restrictions on mail-in voting. Finally, last week the Court let stand a Florida law that denied the right to vote to those who had been convicted of a felony but had served their sentence, unless they had paid in full all fines, fees, and restitutions imposed as a result of their sentence.
Many in the media have described these rulings as attacks on Americans’ constitutional right to vote.
Here’s the thing, though: there is no constitutional right to vote.
That may seem odd, and in many ways, it is. There are many rights that are expressly guaranteed in the US Constitution, such as the right to free speech, to a free press, and to peaceably assemble; to the free exercise of religion; and to a jury trial. But not a right to vote.
That’s not to say the Constitution is silent about voting, or that the Supreme Court hasn’t recognized that there are indeed certain rights that relate to voting.
In Article I, Section 2 of the Constitution we read:
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors [that is, the voters] in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
In other words, the people in any state who are entitled to vote for the House of Representatives are the same people who, under state law, can vote for the most numerous branch of such state’s legislature.
The Seventeenth Amendment made the same rule applicable to the election of members of the Senate. (Prior to the adoption of that amendment in 1913, US senators were chosen directly by the state legislatures.)
Article I, Section 4 of the Constitution further tells us that:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Putting all of this together, the voters who elect members of Congress are the same voters who a state permits to vote for their own legislature, and the time, place, and manner of holding those elections are determined by the states as well (unless Congress by law specifies otherwise).
What about voting for president? Under Article II, Section 1 of the Constitution, the president is elected not by the people of the United States but by a group of “Electors” chosen by the states (the so-called “Electoral College”), and:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.
So, the determination of who votes for president, and how they are chosen, is also left up to the states.
Nothing in the body of the Constitution or the Bill of Rights says anything at all about how states may make any of these determinations, or how their own state elections are to be governed.
(This lack of guidance changed in part with the adoption of later constitutional amendments, which we will get to shortly. In addition, there is one other provision in the Constitution that might apply to the right of citizens to vote. Article IV, Section 4 provides that the “United States shall guarantee to every State in this Union a Republican Form of Government . . . .” However, as early as 1912 the Supreme Court held that this section involves a political determination and so cannot be enforced in a judicial proceeding.)
All of which leaves us with the following conclusion: state law determines who gets to vote and how.
Applying the discretion given them, states in the early years of the union adopted varying requirements for voting. Most states, directly or implicitly, limited the franchise to white males, and many required either the ownership of a minimum amount of property or the payment of a minimum amount of taxes. Native Americans, women, Blacks, and many poor whites were all left out.
Over time, however, the freedom of states to restrict the franchise has been limited. In some cases, states removed some restrictions (such as the asset requirements) on their own initiative. Others required constitutional amendments. Under the Fifteenth Amendment (adopted after the Civil War), the right to vote cannot be denied or abridged on account of race or color, and under the Nineteenth Amendment the right to vote cannot be denied or abridged on account of sex. The Twenty-fourth Amendment bars the payment of a poll tax or other tax as a condition to voting. And under the Twenty-sixth Amendment, the right of citizens 18 years of age or older to vote cannot be denied or abridged on account of age.
In addition, the Supreme Court has held that the “equal protection” clause of the Fourteenth Amendment limits, to some degree, the extent to which a state may restrict voting. In 1964 in Reynolds v. Sims, the Court found that equal protection requires a “one person, one vote” rule, so that districts must be established to provide for “substantially equal legislative representation for all citizens in a State regardless of where they reside.”
However, the Court has been reluctant to extend the Fourteenth Amendment beyond the scope of Reynolds. This aversion arises in large part from a desire to avoid involving itself in so-called “political questions,” issues where the Constitution appears to vest ultimate authority in a part of government other than the courts, or which are not readily subject to the discovery of judicially manageable standards.
The most recent case evidencing this reluctance was Rucho v. Common Cause, in which the Supreme Court refused to rule on the constitutionality of partisan gerrymandering. Writing for the majority, Chief Justice Roberts said:
we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch, at 177. In this rare circumstance, that means our duty is to say “this is not law.”
Many of the decisions considering the application of the Fourteenth Amendment to voting rights, however, have been nowhere near unanimous. Reynolds was decided 8-1, but Rucho was 5-4, as were the Wisconsin and Texas cases referred to above this past term. The justices who were appointed by Democratic presidents appear much more ready to find equal protection violated when access to voting is restricted. I think it is fair to say, however, that applying equal protection to these other aspects of voting would extend the principle beyond the scope of existing Supreme Court precedent.
That does not mean, however, that the ability to vote and to have a meaningful vote cannot be protected. As Chief Justice Roberts notes in his Rucho opinion, the Court’s “conclusion does not condone excessive partisan gerrymandering.” It just means that remedies must be sought outside of the US Constitution. For example, state laws or state constitutions may provide protection. In addition, Article I, Section 4 of the Constitution expressly authorizes Congress to pass laws that regulate the time, manner, and place of voting. A number of bills have been introduced to, for example, prohibit partisan gerrymandering. None have been made into law, however.
At this point, we can summarize the constitutional limitations on a state’s ability to restrict voting as follows:
States cannot pass laws that deny or abridge the right to vote on the basis of race, color, sex, or age;
States cannot impose a poll tax or other tax as a condition to voting; and
States must create legislative districts of roughly equal population.
And that’s it.
Is that really sufficient to protect the individual right to vote, and to have a vote that is meaningful? Should partisan gerrymandering be prohibited? Should everyone be entitled to vote by mail? Though we might think the Constitution would guide us—at least with the Supreme Court as it is currently constituted—it does not.
Not everything that is wrong is unconstitutional. Sometimes, redress must be sought elsewhere. There are ready routes to expand and ensure the franchise, but for now, those reside in the states and in Congress.