The Right to VOTE

Most Americans believe that the "legal right to vote" in our democracy is explicit (not just implicit) in our Constitution and laws. However, our Constitution only provides explicitly for non-discrimination in voting on the basis of race, sex, and age in the 15th, 19th and 26th Amendments respectively.

Even though the "vote of the people" is perceived as supreme in our democracy - because voting rights are protective of all other rights - Justice Scalia in Bush v. Gore constantly reminded Al Gore's lawyers that there is no explicit or fundamental right to suffrage in the Constitution. The Supreme Court majority concluded: "the individual citizen has no federal constitutional right to vote for electors for the President of the United States." (Bush v. Gore, 531 U.S. 98, 104 (2000))

Voting in the United States is based on the constitutional principle of states' rights. The 10th Amendment to the Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the State, are reserved to the States respectively, or to the people." Since the word "vote" appears in the Constitution only with respect to non-discrimination, the so-called right to vote is a "state right." Only a constitutional amendment would give every American an individual affirmative citizenship right to vote.

What's the difference between a citizenship right and a state right? The First Amendment contains individual citizenship rights that go with you from state to state (that is, they are the same wherever you are in the U.S.); and they are protected and enforced by the federal government - theoretically you have equal protection under the law by the executive, legislative and judicial branches of the federal government. Therefore, as a result of the First Amendment, every American citizen has an individual right to free speech, freedom of assembly, and religious freedom (or to choose no religion at all), regardless of which state you are in - individual rights that are protected by the federal government. A state right is NOT an American citizenship right (that is, not protected by the federal government), but a right defined and protected by each state - and limited to that state.

Our states' rights voting system means there are approximately 13,000 separately administered voting jurisdictions in the United States. Our "states' rights" voting system is structured to be separate and unequal.

According to a joint study by Cal-Tech and MIT, somewhere between four and six million votes were not counted in 2000 because many states had similar problems to what occurred in Florida.

Without the constitutional right to vote, Congress can pass voter legislation - and Congressman Jackson supports progressive electoral reform legislation - but it leaves the "states' rights" system in place. Currently, Congress mostly uses financial and other incentives to entice the states to cooperate and comply with the law. It's one reason there have been so many problems with the recently passed Help America Vote Act and why many states still have not fully complied with the law.

To fulfill the democratic ideal, an affirmative voting rights constitutional amendment still lies in the future. According to Harvard's Constitutional Law Professor Alexander Keyssar 108 of the 119 nations in the world that elect their representatives to all levels of government in some democratic fashion explicitly guarantee their citizens the right to vote in their Constitution. Both Afghanistan's Constitution and Iraq's interim legal document contain a right to vote.

The United States is one of the eleven nations in the world that doesn't provide an explicit right to vote in its Constitution.

Additional material:

• Voting Rights Amendment Q&A
• Nov 12, 2004: Make the Right to Vote Real
• Oct 19, 2004: "The Vote" is Central Issue in 2004
• Sep 1, 2004: Do Americans Have the Right to Vote?-Tavis Smiley
• Aug 9, 2004: Do Americans Have the Right to Vote?
• Nov 22, 2003 Fighting for a Right to Vote Constitutional Amendment