Voters in California. States could legally take back the power to appoint electors without a popular vote at any time. (AP Photo/Damian Dovarganes.)
Three weeks ago I held forth in thunder on the subject of voting: “The President and Congress have little or no constitutional authority upon which” to fix America’s broken voting system, I wrote. “It is one of the best kept secrets in our political life: There is no federal right to vote…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.”
Soon after, with my gratitude, I was corrected. But that doesn’t mean that I was all wrong. Today, with the question of fair elections back in the news, what with the oral arguments this week on the Supreme Court challenge to the Voting Rights Act, let’s dig a little deeper.
Article 1, Section 2 of the Constitution grants a federal right to vote for Congressmen—who shall be “chosen…by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” And while the states are granted an uncomfortable amount of power to set voter qualifications (no small thing: that’s the source of so many of the historic abuses so eloquently set forth in the classic text that inspired my post, Alex Keyssar’s The Right to Vote: The Contested History of Democracy in America), Article 1, Section 4 also grants Congress authority to alter voting procedures, at least in congressional elections: “The time, places and manner of holding elections shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.”
Indeed, an election lawyer reminded me of two counter-examples in which Congress passed laws aiming at improving voting administration federally, neither of which faced constitutional challenges I’m aware of: the Military and Overseas Voter Empowerment Act (MOVE), and the Help America Vote Act (HAVA).
But that’s hardly the end of the issue.
HAVA (whose goals were to replace the failed punchcard and antiquated lever-based voting systems, to create an Election Assistance Commission to help administer federal elections and to establish minimum election administration standards), passed overwhelmingly (357-48 in the House, 92-2 in the Senate) and was signed by President Bush in 2002. But it’s one of those diabolically labyrinthine “kludges” within which America so excels in entangling its social policies: not really a congressional mandate, it instead only provides a pool of federal funding states can collect if they lay out an acceptable plan to carry out the law’s goals.
No states ended up turning down that money —but these, alas, are more ideological times than even back in 2002. Republican governors are more lunatic than they used to be—as attested by all the ones so eager to turn down free federal money to qualify more of their poor citizens for Medicaid under Obamacare. Meanwhile, some states have taken the money only to hoard it. And what was politically possible in 2002 may be inconceivable in 2013. Could something like HAVA pass now, given that Republicans all but brag of sabotaging efficient election procedures in order to hold down the Democratic vote? The question, I’d wager, answers itself.
Meanwhile, according to Wikipedia, MOVE, intended to help military folks vote, is a paper tiger: “implementation of the act has been spotty, with only fifteen states having fully implemented it…90 percent of absentee ballots sent to American civilians living abroad are returned and counted, compared to two-thirds of absentee ballots mailed by overseas military personnel. In a report by the Overseas Vote Foundation released in January 2013, 21.6 percent of military voters did not receive their ballots and 13.8 percent of military voters tried to vote but couldn’t.”
I asked Professor Keyssar to clarify his thoughts about whether there can truly be said to be a federal right to vote or not. He pointed out—as Digby also reiterated in an e-mail to me—that the Constitution refers only to a right to vote for members of Congress. Which would sound academic—if Antonin Scalia hadn’t, in his five-to-four decision in Bush v. Gore, triumphantly proclaimed, “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 a means to implement its power to appoint members of the Electoral College.” He continued, “the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself…. History has now favored the voter, and in each of the several States the citizens themselves vote,” but the “State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.”
And what does that mean? Well, according to the good folks at Fairvote.org, who support just the sort of right-to-vote constitutional amendment I endorsed in my previous post on this subject, that means “Florida’s legislature has the power to take that power away from the people at any time, regardless of the popular vote tally.”
Still feel safe in your constitutional right to vote?
And don’t forget: this is the same constitutional provision that allows the outrage that American citizens living in territories—Puerto Rico, the Virgin Islands and Guam—don’t get to vote for president. And that the only reason residents of Washington, DC, get to was a constitutional amendment, passed in 1961.
Given that context, reread what Obama said in his State of the Union address about fixing elections: “Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.”
Narrow, narrow, narrow. Maybe some nice law can be proposed, say, providing a pool of federal funds, HAVA-style, to give to governors to increase the number of polling places or some such. And then, in the unlikely event that it passes, Republican governors could gladly turn that money down. Laws introduced by House and Senate Democrats to require states to provide online registration and allow at least fifteen days of early voting will likely go nowhere—because conservative Republicans don’t want to make it easier to vote. (In one of those 1975 Ronald Reagan radio broadcasts I’ve been discussing recently, the future president wrote of the horror he shared with other conservatives at a proposal to allow people to register to vote more easily by sending in a postcard: “In recent years, and without our paying attention,” he darkly intimated—a liberal conspiracy!—“it’s become easier and easier to become a registered voter. And whether we know it or not, we’ve been making it easier and easier for voting blocs to swing elections even though the bloc doesn’t represent a majority…. Look at the potential for cheating!”)
And note what Obama did not throw the weight of presidential rhetoric behind while the whole world was watching his inaugural address: the restrictive voter identification requirements that are as much an insult to democracy as those long lines (even as, admirably, Attorney General Holder has called them the equivalent of a poll tax, illegal under the Twenty-Fourth Amendment).
So it is that, still, a genuine federal right to vote—what poor old soon-to-be-incarcerated Jesse Jackson, Jr. prescribed in his proposed, now-orphaned, constitutional amendment as “regulations narrowly tailored to produce efficient and honest elections,” reviewed regularly by Congress “to determine if higher standards should be established to reflect improvements in methods and practices regarding the administration of elections,” and a requirement for every state to “provide any eligible voter the opportunity to register and vote on the day of any public election”—goes begging. And will go begging, in the end, until that bold day when America finally decides to become a grown-up democracy.
Maybe it's not too late for liberals to get over their love affair with Rahm Emanuel and see his missteps for what they are, Rick Perlstein writes.