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The Constitutional Roadblock to Efforts to Fix Federal Elections | The Nation

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Rick Perlstein

Rick Perlstein

Where the past isn’t even past.

The Constitutional Roadblock to Efforts to Fix Federal Elections


Voters wait to cast their ballot early in Ohio. (AP Photo/Mark Duncan.)

Yesterday The New York Times ran a front-page feature on attempts by Democrats, both in the White House and on Capitol Hill, to pass reforms to fix the scandalously long lines faced by voters at the polls last November. It comes the same day that the Virginia House and Senate passed a bill to disallow the use of a utility bill, pay stub, bank statement, government check or Social Security card as acceptable identification to present at the polls—making it, of course, all the harder for traditionally Democratic constituencies in this crucial battleground state to have their voice heard at the ballot box.

Nation readers will be well aware of the problem, of how profoundly it contributes to our democracy deficit in America, and how neatly it notches with Republican attempts (defensive, they always claim) to sabotage Democratic turnout, at least since future Supreme Court Chief Justice William Rehnquist was spied intimidating Hispanic voters at Phoenix polling places in 1962. Like me, you probably keep a catalogue in your mind of the most excruciating examples thereunto, like, in this last election, the fact that the Florida ballot was larded with so many right-wing referenda that had to be printed in full, and was so confusing, that it caused four- and five-hour lines even in precincts that weren’t all that crowded.

Now, the Times piece is swell. It reports research such as the study done at MIT that determined that blacks and Hispanics waited an average of twice as long to vote as whites; work by an Ohio State professor and the Orlando Sentinel concluding that more than 20,000 Florida voters “gave up in frustration” rather than stick out the long lines; and a New York Times/CBS News poll that found 18 percent of Democrats waited at least a half-hour to vote compared to 9 percent of Republicans. Pretty damned damning. “Democrats in the House and Senate,” they note, “have already introduced bills that would require states to provide online voter registration and allow at least 15 days of early voting, among other things,” reports the Times. James Clybourn, the black South Carolina representative and assistant House Democratic leader, said of Obama, “I think he’s going to devote pretty significant political resources to bear on this question.”

But the Times piece also suffers a damning lacuna. It doesn’t note that the President and Congress have little or no constitutional authority upon which to act. Here’s a dull two-by-four to the head to all of you hoping Washington can fix the voting problem. It is one of the best kept secrets in our political life: There is no federal right to vote for Congress to guarantee. I’d be glad to be corrected, but as best I can tell, that means that technically, in almost every case, a state can make it as hard as it wants for its citizens to vote, and there’s practically nothing DC can do about it.

I learned about all this thirteen years ago when I reviewed for The Washington Post a marvelous, pathbreaking book by Harvard historian Alexander Keyssar, The Right To Vote: The Contested History of Democracy in the United States. “Boldly overturns everything you think you know about Americans’ most taken-for-granted right,” went my blurb on the cover of the paperback. Though come to think of it, the word “right” should have appeared in quotation marks. I wrote:

He begins with an enormous irony: The Constitution “did not grant anyone the right to vote.” Instead—debate on this particular subject falling to quick compromise during an overpowering spell of Philadelphia humidity—the framers decided to leave the question to the states…. What followed, however, was the inspiriting story you learned at your schoolmaster’s knee: State after state through the early nineteenth century convened the constitutional conventions that collectively made America “the first country in the Western world to significantly broaden its electorate by permanently lowering explicit economic barriers to political participation.” But you didn’t learn what happened next, which was that the United States then became the first country to instill “a prolonged period during which the laws governing the right to vote become more, rather than less, restrictive.”

More precisely, states instilled that prolonged period—and the federal government stood aside, because that was how the Constitution worked.

The big exception was when the disenfranchisement was racial. In the 1965 Voting Rights Act, the federal role is underwritten by the language of the Fifteenth Amendment (“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”). And I suppose a present-day Supreme Court majority could conceivably use the Fifteenth Amendment to again allow Congress to ban contemporary practices proved to have obviously racially discriminatory features.

I also suppose monkeys could fly out of my posterior. Because that is is about as likely as today’s Supreme Court legitimating new federal voting guarantees, given that they seem to be the verge of striking down the Voting Rights Act’s key provision of “preclearance.”

The other exceptions are that, following the Nineteenth and Twenty-Sixth Amendments, states can’t take the vote from women or people eighteen years of age or older. Disenfranchise anyone else, though, and you’re just about in the clear.

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Except, of course, if we pass another constitutional amendment. This is one of the reasons the loss of Jesse Jackson Jr., from Congress is such a sad thing. In his neglected but visionary book A More Perfect Union, Jackson proposed just such an amendment (and seven others besides, all rooted in the UN’s Universal Declaration of Human Rights: guaranteeing rights to quality healthcare, housing, education, a clean environment, and equality for women). The suggested right-to-vote amendment went like this:

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.

That would solve every last one of our voting problems. (I bet, although you’d have to ask a constitutional lawyer, it would even cover our gerrymandering problem, or really, as I prefer to call it, our cheating problem—you know, the one that lets Republian state legislatures crowd Democratic voters into almost-unanimously Democratic districts, making it so a Democratic presidential candidate can win a state like Pennsylvania by over five points while that state is still represented by thirteen Republican and only five Democratic Congressmen). Of course, the idea went nowhere.

The Times article downplays the federalism problem, relegating it to an aside—“conservatives have complained that Democrats are politicizing an issue [love that: like, what kind of freak could possibly consider voting a political issue…] that should be handled by the states, not the federal government.” But it’s not an aside. It’s the whole ballgame. Maybe it’s time for some visionary leadership on the issue. “Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote,” Barack Obama said in his inaugural address. Right on, Mr. President. Make it so. Push Jesse Jr.’s constitutional amendment. If you really mean what you say, I don’t really see how there’s any other choice.

Why do we need voter registration at all? North Dakota has conducted registration-less elections for fifty years “without incident,” Voting Rights Watch reports.

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