Rick Hasen echoes an opinion today that I've shared for a very long time:
Unlike the constitutions of many other advanced democracies, the U.S. Constitution contains no affirmative right to vote.... As we enter yet another fraught election season, it’s easy to miss that many of the problems we have with voting and elections in the United States can be traced to this fundamental constitutional defect. Our problems are only going to get worse until we get constitutional change.
Without meaning to disparage other important rights, I've long believed that the three great pillars of democracy are freedom of speech, the right to a fair trial, and the right to vote. Of those, the right to vote is not only missing in the US, it's actively opposed in a number of ways. The biggest is probably the common denial of voting rights to prisoners and ex-felons, but it's not the only one. In most places, you also can't vote unless you're registered, a significant and wholly unnecessary hurdle. Why not just let anyone vote who walks up on Election Day? Then there are the numerous photo ID laws set up recently that deny voting rights to anyone without the particular type of ID favored by the party in power.
The historical reasons for voting restrictions are obvious, but the Supreme Court upheld the principle of one-person-one-vote more than 50 years ago. I'm surprised that it's never gotten around to enforcing the obvious corollary to that: Proportional representation can only truly follow the one-person-one-vote principle if everyone has an equal right to vote. Denying or denigrating that right for any group makes a mockery of the principle.
Hasen advocates a constitutional amendment that would force the Supreme Court's hand. It would, he says, "have to be written clearly enough that it would be hard for the Supreme Court to ignore its commands." How about this?
The right to vote in any election shall not be abridged for any citizen over the age of 18.
That language has sufficed for freedom of speech for over 200 years, so why wouldn't it work here?
"In most places, you also can't vote unless you're registered, a significant and wholly unnecessary hurdle. Why not just let anyone vote who walks up on Election Day?"
Estimates vary, but around 50 million non citizens, including legal residences etc, live in the US. Voter registration, while imperfect, is a step to limit voting to US citizens (perhaps who live local and whatever other rules apply). In many European countries, one must present a valid biometric ID to vote: most countries do not allow anyone, who shows up, to vote.
In Germany every citizen of legal age receives a voter ID in the mail a month or so before each election.
Five Parrots in a Shoe - your example supports my point.
Germany is not, as Kevin recommends, "Why not just let anyone vote who walks up on Election Day?"
You seem to be stupid to read Kevin's constitutional amendment "shall not be abridged for any citizen". Anyone is clearly restricted to citizens. The sole point of voter registration is to prevent citizens from voting. You knew that and deceitfully brought up non-citizens because you are a conservative, i.e. a liar.
The information required to get those out in the US will result in dead federal employees. Just go looking for stories from people who work for the census. Even if you are allowed to answer "I refuse" to the questions, that you have to answer at all send a not inconsiderable number of people into a rage and reaching for their guns. It's not a recent phenomena either the stories go back to the 70s and likely before.
I think by "let people who show up, vote," Drum is referring to the day-of registration that is standard in Minnesota. I moved from one address to another in my precinct in October one year. I was able to simply change my registration on voting day. I had my old license and the receipt for my new one with my new address.
Day of registration works well. MN has high participation and almost no fraud ( I can't think of any recent cases).
Same day registration like in MN makes sense. Voting whoever walks up doesn't.
Same day registration is exactly allowing any resident citizen to vote. Why continue to document that you are a liar?
Can you "just show up" as many times as you want, in as many places? (Cool!)
Can you "just show up" as many times as you want, in as many places? (Cool!)
Obviously not.
Is there some kind of point you're trying to make? It's possible using existing database technology to compile accurate lists of eligible voters without employing the kinds of obvious, intended barriers prevalent in the US. Many countries make voting easier than America does.
Brazil imposes a small fine if you do Not vote between ages 18-70. They have voter participation rates that should make Americans blush. But, of course, America welcomes every new scam.
As a person who grew up in Switzerland let me explain in some more details: Swiss city or village administrations have a list of every resident. When you move you go to the town hall and let them know you are leaving. This ends your duty to pay city taxes. At the new location you have to go to the town hall again and present yourself with ID. They will then register you and contact the town of your previous residence for information on you (like a family ID that they keep for you, including the names of your parents, your spouse and your children).
You (and your spouse) are now registered as a resident of your new town. If you are citizen you are automatically registered to vote and you will receive a ballot in time for the next election date.
Most European countries have a similar system. This makes automatic voter registration easy and cheaper than a separate voter roll as well as more reliable. It also makes enforcing immigration law easier BTW, so I don't understand the resistance against it in the US.
Also: There are polling places and there is voting by mail; there is also a ballot drop box at the town hall for about a week before the official date (always a Sunday). Photo ID makes no sense; you can circumvent it by voting by mail or drop box.
You're off by a factor of 20.
https://www.dhs.gov/ohss/topics/immigration/population-estimates/nonimmigrant
Yep, clearly the commenter is conflating “foreign born” with “ineligible to vote.”
If everyone had an equal right to vote, and thereby an equal right to representation, that would undo the Electoral College and the membership restriction in the Senate.
It just says they have a right to vote in an election. Doesn't say anything about representation. The EC and gerrymandering could still be alive and well. You can vote. Doesn't mean you will be represented.
Voting then is meaningless if you're not represented.
And this is different and/or somehow worse than the status quo... how exactly?
The status quo is not completely meaningless, but if the popular vote actually achieved actually nothing by resulting in no necessary outcome then it would be in fact meaningless, like the pretend votes in dictatorships.
Yes, but only if you equate the right to "vote" with the right to "equal representation". The Constitution set up a bi-cameral legislature, one house of which is selected by the people directly and the other by the several States. The States themselves were specifically given "equal suffrage" in the house devoted to their control, and that stricture is the one item in the Constitution forbidden from Amendment.
The 17th Amendment mandated "direct election" of Senators by the people, but that just transferred the selection from the legislatures of the several States, which are chosen by the people of those respective States to the voters of the several States themselves.
So, clearly, the Constitution does not impute "equal representation" in the Senate with the "right to vote". They are different things.
I would argue that the 14th amendment makes any non-proportional scheme at any level of government unconstitutional except those specified elsewhere in the Constitution (the Senate and the Electoral College). I forget the term for it, but there is a fancy legal term for a specific law trumping a general one, which is why the 14th shouldn’t effect the Senate or EC.
We don't have a right to vote in the Constitution now. The states being given equal suffrage in in that way is an artifact of an era when true representative democracy was a bizarre and untested theory for a nation and each former colony had a serious hesitancy about being yoked to the possible future whims of their distant neighbors. And, in it's inherent difficulty it reflects the familiarity of the House of Lords.
The world is far past this now.
Let's not forget that the right didn't apply to Blacks or women. I believe a number of colonies had requirements for land ownership as well.
All 13 states had wealth requirements for voting after the ratification of the constitution. The text of the constitution makes clear there is no right to vote. Federal voting is restricted to those that the states gave the right to vote in their lower houses.
Right now the powers that be are going through many contortions to figure out how we can ignore the plain language of Section 3 of the 14th Amendment so when the Supreme Court hands down its decision it will seem like the wise thing to do.
Democrats should respond and say we're going to ignore all the plain language about Electoral College. Then we can call it even.
As conservatives ignore the plain language of the Second Amendment there's a lot of precedent.
The supreme court effectively amended the constitution to eliminate the electoral college when they let states choose the votes of the electoral college members. (using historical facts that were 100% false.) And note, the electoral college has nothing to do with the weighting states receive in choosing the president. There is no need whatsoever for an electoral college to implement that weighting. The sole reason to have an electoral college is to prevent the populace or state legislators from choosing the president but to have a council of wise men advised by either the state legislators or populace to choose it.
Change this to "The right to *bear votes* in any election shall not be abridged for any citizen over the age of 18" and you have a winner.
I like it.
You could also add the words "A well regulated Militia, being necessary to the security of a free State..." as a preface. History shows that those words will be ignored as if written in invisible ink, but the words that follow will become the most cherished right in all the land.
+10!
"The right to vote in any election shall not be abridged for any citizen over the age of 18."
In an ideal world, you wouldn't tackle this without fixing the electoral college and winner-take-all problems.
Even with just this, you would have to get everyone on board with felons voting (I am) or add an exception to the amendment. Then I suspect that how states make rules to determine eligibility (like requiring photo IDs) would come into play -- what's too onerous? It's not that hard to figure out, but I suspect motivated states and SCOTUS members would find ways to use the practical issues to undermine the intent of the amendment.
And lastly, you'd have to pass it, and I just don't think you could get it to pass. States that want to suppress the vote would block it. (And make all sorts of nonsensical states rights claims to muddy the issue.)
Note sure we need a new amendment. Query:
If "fundamental" rights are those necessary to "ordered liberty", as the USSC has held - Ordered liberty - Wikipedia.
and the 15th Amendment (black men can vote), the 17th Amendment (direct election of Senators), the 19th Amendment (women can vote), the 23rd Amendment (DC gets at least partial democracy in the EC), the 24th Amendment (no poll tax) and the 26th Amendment (18 yos can vote) all expand voting by constitutional amendment (I count six amendment by my method), how can we say that US political culture, through the people, does not recognize the right to vote as fundamental, i.e., implicit in the concept of ordered liberty?
If the answer is that all the people do not view it that way, Duh! That's why we have amended the Constitution 6 times, almost one-third of amendments after Bill of Rights, (which should be considered part of original passage in reality, and exactly 1/3 if you fold both prohibition amendments into one for purposes of what issues merit amendment which makes sense), because factions in power try to limit the franchise to others, and we have fought back against such limitations, declaring the franchise worthy of amending the Constitution (which is very difficult), to preserve.
Obvious to me.
Thsuggested change will do little to fix the current mess, which is the result of first-pass-the-post without transferable vote.
Transferable vote is currently the best solution, because it is a solution and does not require a substanial change of anything.
Cannot solve the question of electing president, which is broken intentionally by the constitution, but will moderate the congress and state governments.
"Then there are the numerous photo ID laws set up recently that deny voting rights to anyone without the particular type of ID favored by the party in power."
Republicans, Kevin, Republicans favor photo voting IDs.
But not photo ids issued by state universities. Those are never allowed to be used as ids whereas hunting licenses are.
I think the short answer is that if you go back to the early years of the country and ever since, the preference has been that the "right" people should be allowed to vote. Which mostly meant male landowners. That's been chipped away at over the years, but the undercurrent is still there. Homeowners are preferenced over renters.
In short, Dems push total vote far more than Reps.
There's only one political party actively discouraging voting and we all know which one it is. Whether we like it or not, there is a sizable number of Americans who think that only employed, responsible, homeowners should be allowed to vote and participate in policy decisions since they've proven to be stable enough to be the bedrock of communities.
And now there are some people suggesting that people with progeny should have more say in government than those without children, an astounding rationale for more rights for some citizens than others.
So no voter registration, and no identification. Just walk up and vote. So no way to verify you are the citizen you claim to be, or that you had not also voted in the district one over…
If the government wants to restrict the vote to people with ids, the government has a duty to provide everyone with ids.
Every time I’ve voted in person in three states I had to show my ID. A driver’s license was sufficient.
Thank you, Keven. I've been making this argument for years, only to be shouted down by people who tell me how wrong I am by quoting bits of the Constitution that -refer- to a right to vote (i.e. "The right to vote shall not be denied on account of sex..." while never explicitly granting it. Even the NY Times agrees: https://www.nytimes.com/article/voting-rights-constitution.html?unlocked_article_code=1.OE0.D8Ci.78x7IA_3YtCz&smid=url-share
We need that amendment, but only if it's understood that the right to vote includes the right to have that vote counted.
"That language has sufficed for freedom of speech for over 200 years, so why wouldn't it work here?"
An amendment with that language wouldn't work here, because it would never be ratified by red states. It must be ratified by 38 states, and it would be lucky to get 25.
"Why not just let anyone vote who walks up on Election Day? Then there are the numerous photo ID laws set up recently that deny voting rights to anyone without the particular type of ID favored by the party in power."
You can't just have anyone just walk up to vote, because then anyone can just walk up to vote. A way to avoid that would be to require pre-registration or photo ID, with pre-registration being far preferable.
Also, if the right to vote were a right recognized by the Constitution all elections would be Federally controlled and managed.
You do realize that the constitution already explicitly gives the federal government the power to override any state regulation on federal voting. "but the Congress may at any time by Law make or alter such Regulations," Article 1, Section 4, clause 1.
Yes, but they have to actually do it, and probably after the fact.
If voting were an actual right of citizenship the Federal government will end up managing every election directly, state and local, like mail delivery, every time. They would own the voting machines or ballot boxes, it would feel very different, and without the ad hoc sense you often get.
But at the same time you can imagine some character like Trump would be able to more easily abuse it.
How can anyone who has ever read the US Constitution say, with a straight face, there is no right to vote? Look at the several amendments!! How many of them begin with The RIGHT TO VOTE shall not be abridged by....
Okay, let's enumerate 'em.
14. The right to vote in all federal elections if you're born here or otherwise a citizen.
15. The right to vote regardless of race, religion, previous servitude
19. The right to vote in spite of sex.
23. The right to vote for president, even if you live in DC
24. The right to vote without having to pay.
26. The right to vote if you're 18 or older.
So please explain: how is there "NO RIGHT TO VOTE"?
Because there are (and have been in the past) all kinds of restrictions on voting? If it were a right, there would not be said restrictions.
The felons part is an extremely easy example. If there were actually an unabridgeable right to vote, such laws wouldn't be constitutional.
That's a list of restrictions not permitted. That implies any other basis (say wealth as all states originally did) is a valid reason to deny the vote. The constitution explicitly permits denial of vote based on past or present criminal record.
There's no right to vote in the Constitution because for eighteenth century deists, the Constitution couldn't create rights; at most it could restrain governments from abridging pre-existing rights. That's why the first Amendment starts with "Congress shall make no law . . . " and why the Ninth Amendment clarifies that " The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The right to vote is clearly within the Ninth Amendment.
The Declaration of Independence tells us how we know what our rights are, and wehre etehy originate: "We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain inalienable rights . . ." We don't need an amendment to tell us something that's self-evident, and if the right to vote isn't self-evident, an amendment won't make it so.
"The right to vote is clearly within the Ninth Amendment." You're ignoring that the supreme court has found the 9th amendment doesn't actually exist.
Yes! That viewpoint, and phrasing, have been carried forward in the Fifteenth and Nineteenth Amendments, adopted in the nineteenth and twentieth centuries respectively. The franchise was extended to African-Americans and women as a recognition that the right to vote was theirs as human beings and citizens, and not to be ‘abridged or denied’ by government. So through our history we have become more enlightened, if you will, in recognizing rights that all humans have inherently, and enacting protection for those rights. IMHO, Dobbs reflects a view that the Constitution as amended grants rights to citizens which they did not formerly possess. I regard this as a dangerous, and not at all conservative, path.
Time for folks to read ‘Tyranny of the Majority’
Is it worse than our current "Tyranny of the Minority"?
In addition to all the hoops states create in order to register to vote, with the ability for states to punish the incarcerated, the states have an additional obscene power to target select demographics to disenfranchise.
*Why* we don’t have one is easy to understand: it would have been awkward to craft one racist, sexist and elitist enough to satisfy the founders without it looking awful.
You make the self-satisfied modern assumption that "the founders" wanted to lock in white landowner privilege for all time, when plenty of them were abolitionists, or Christians, or self-made men.
None of those things are mutually exclusive with a desire of privileged white men to lock in privilege for white men for all time.
Christianity was the biggest argument for supporting slavery. All of the protestant churches underwent schism at the time of the civil war on the basis that the southern wings argued that the bible mandated slavery.
Right on, Kevin. Democracy is impossible if 1) men cannot say and hear the truth, the knowledge of which is necessary for self govern, 2) men are intimidated to speak the truth through threats of violence or imprisonment, and 3) the will of the majority cannot be heard. So, yeah, those three rights you listed are spot on.
>The right to vote in any election shall not be abridged for any citizen over the age of 18.
While I appreciate the clear language you used, hasn’t history taught us that one must consider how men can avoid the spirit of laws? So, there’s nothing about votes counting equally. Who’s a citizen and how is this proved? What does ‘any election’ mean? Can I vote for Dog Catcher in another state? Must the state provide parking and handicap access? There probably needs to be limits, but once you’ve placed limits, then bad-faith actors can start running in the opposite direction. Can voting booths be in tree houses? Every additional word that might tighten the sense also opens up new loopholes.
When people no longer want democracy, nothing can long stop them from tearing it down.
"That language has sufficed for freedom of speech for over 200 years, so why wouldn't it work here?"
Because as pointed out above some restrictions on voting have majority support. How many people think murderers (like Mark David Chapman) in prison should be allowed to vote? Or people in comas?
Just the worst kinds of FALSE EQUIVALENCE, Kevin:
"...recently that deny voting rights to anyone without the particular type of ID favored by the party in power..."
Really? You're really going to BOTH SIDES denying voting rights???
I've long thought that otherwise qualified prisoners should be able to vote in statewide and federal elections. But for local elections, I've reservations. Imagine a town of 3000 in a county of 12,000 with a 3000 inmate prison.
You can’t vote if you are in prison.
There is not a prison in every town. Prisoners are often gathered from a wide area and would not have residency in that town.
Otherwise your “what if?” makes a lot of sense.
Has anyone made the obvious point that this is all meaningless, as this would never pass as a constitutional amendment (too many states want to restrict voting rights), and the current SCOTUS would never uphold it (much too GOP partisan)? I don’t get what Kevin is thinking here. He doesn’t usually waste his time on pie in the sky proposals like this.
That is one of the advantages of tranferable vote, it does not require any substanial change.
It will also do more to cure the current political mess than the amendment that Kevin suggests.
Kevin, you should know that we do not have proportional representation*; I wish we had, we would be in far less trouble right now.no
* At least not what is generally understood by "proportional representation".
> Proportional representation can only truly follow the one-person-one-vote principle if everyone has an equal right to vote.
That might be a necessary pre-condition, but is not sufficient.
* There will be a category of people who don't exercise their right to vote and who thus cannot be directly represented.
* Our winner-take-all + gerrymander system eliminates proportional representation.