I found myself on a conference call about this time last year with several progressive organizations asking a simple question: how do we protect people’s right to vote?
The Bill of Rights
Hold on there is no
right to vote. We have a right to not be discriminated against — an equal right to vote along with fellow citizens. Let’s start at the beginning with the Bill of Rights — the first ten amendments to the Constitution.
These were offered up to assuage fears that a federalist government would centralize power and lead to tyranny. The Founders agreed these were the most important amendments and surest safeguards of democracy. Think about that: these ten articles were deemed the vital rights that would preserve democracy, but the right to vote was not included.
What was included? Well, we all know about our rights to worship or not worship the religion of our choosing (First); the right to carry guns into a movie theater in case somebody is texting (Second); our supposed protection against unreasonable search and seizure (Fourth.) When was the last time you read the Seventh Amendment though?
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
Whew! The Bill of Rights clarifies the right to jury trial in civil cases where the value in controversy exceeds $20 bucks. So we got that going for us, which is nice. But what about that right to vote?
Equal Protection and Voting Rights
Well, keep searching the rest of the Amendments. You won’t find that "Right to Vote." Okay, you will find protections affording equal protection and rights under the law (14th), prohibiting discrimination based on race (15th), sex (19th), age (26th). We do have the explicit right to elect US Senators through popular vote (17th). Lest you think any of these establish a right to vote the Supreme Court cleared that up in Bush v Gore:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States.
- Majority opinion, US Supreme Court, 2000
Translation: the states and specifically state legislatures can do whatever the hell they like. We the citizens have no right to vote or have our vote counted.
What the Right to Vote Amendment Would Achieve
- Guarantee the right to vote for every citizen of voting age
- Empower Congress to set national minimum electoral standards
- Provide protection against attempts to disenfranchise individual voters
- Ensure that every vote cast is counted correctly
- Ground a movement for how we can live up to the ideal of the right to vote in our states and cities
Now back to that phone call in early 2013. The beginning of the discussion focused on coordinating campaigns to support a constitutional amendment guaranteeing the right to vote. That conversation was shut down quickly. Everybody on the call agreed that such a bold move was simply not politically viable. The consensus was our time would be better spent fighting for the continuation of the Voting Rights Act and fighting Voter ID laws state-by-state — going on the offensive when possible. It seemed daunting, but at least there would be clear victories along the way.
Lessons from Prohibition
I was convinced that the constitutional remedy was a fool’s errand. Then I watched Ken Burns’ epic documentary Prohibition. While I certainly don’t support the Prohibitionists’ goal, their campaign methodology was absolutely brilliant and their resolve is inspiring. They willed the impossible into possible and eventually, made it inevitable.
The Prohibitionists stated early on that their lofty goal was a constitutional amendment —believing once they had the amendment it would never be overturned. This pronouncement created cultural space for the quiet Teeotalers to get loud and become visible. (The “T” was for “Total Prohibition,” not “Tea” as is thought now). The fear of an amendment, as outlandish as it seemed, pushed more states to act in hopes of subverting total prohibition. Now, we are taking the opposite approach and hoping that state battles will lead to national change.
Of course, Prohibition was horrible policy and doomed to failure (only after wreaking havoc on the country), but that doesn’t mean we can’t or shouldn’t learn from their campaign example.
Idea Whose Time Came Long Ago
Change happens through bold and unflinching ideals and objectives coupled with intelligent and practical goals — steps along the way. We need to continue taking the small steps. Campaigning at the state level is important and the National Popular Vote Interstate Compact is a smart political play. We certainly should not give up on the Voting Rights Act even after it was gutted by the Supreme Court.
Still, we should place a marker in the ground and claim a bigger prize. Fighting for a constitutional amendment may be a fool’s errand, but staying on the defensive and allowing Jim Crow tactics to reemerge is even greater folly. The right to vote is an idea whose time had come 200 years ago — I say we have waited long enough.