It’s Time to Make the Right to Vote Real

By Jesse Jackson Jr. and Jeff Milchen

Friday, November 12, 2004

Citizens made wary by the 2000 presidential election fiasco had plenty of reason for alarm over election happenings in Ohio this year. First, Republican Secretary of State Ken Blackwell revived an archaic law to discard voter registration forms not submitted on a specific cardstock. He then fought off two lawsuits and allowed partisan operatives to challenge voters’ legitimacy at the polls. Finally, on Election Day, those voter challenges proved an unnecessary tactic for those hoping to suppress turnout in urban districts.

Why? Unconscionably long lines suppressed the inner-city (read: minority) vote without any Election Day intervention. In some counties, it was simply a matter of inadequate machines overall. In Columbus (Ohio’s largest city), however, a decision was made to move many voting machines that were in urban precincts for the spring primaries to the suburbs, despite record voter registration drives in the cities and Columbus having a much longer election ballot. Multi-hour waits in central Columbus resulted.

Whose decision created lines that prevented countless citizens in Democratic strongholds from voting? Franklin County elections director Matthew Damschroder, formerly the Director of the county’s Republican Party.

While those Republican tactics are disgraceful, does anyone believe there aren’t Democrats who would employ similar dirty tricks if disenfranchising masses of wealthy white men in suburbs was so easy? These tactics pay off because Americans often have no legal recourse when they’re disenfranchised. The solution is both simple and daunting -- we must establish a constitutional right to vote.

Despite the relentless urging to exercise our “right to vote” in recent weeks, that “right” is a myth. What we have is a privilege, granted or withheld at the discretion of our state and local governments.

Yes, our Constitution prohibits discrimination in granting the franchise based on a person’s race, sex, or (adult) age via the 15th, 19th, and 26th Amendments, but those protections are like a house with no foundation. States and other governments can and do disenfranchise individuals and groups of citizens, and so long as they do it without provable bias, it’s entirely legal.

Numerous electoral reforms were enacted following the 2000 presidential election debacle, but, as Ohio’s problems indicate, we’re still building on that incomplete foundation. While we speak of “spreading democracy” globally, the U.S. is one of just 11 nations among 119 constitutional democracies that fail to guarantee a right to vote in their constitutions. It’s time we caught up with our own rhetoric by securing that right in America.

This is no hypothetical argument. Without an affirmative right to vote, Americans repeatedly are disenfranchised or otherwise deprived of their political voice, and they have no basis for retrieving it.

A right to vote, for instance, would have provided black citizens of Florida with legal grounds to fight victimization in 2000 by Republican state officials who purged thousands of them from voter rolls for partisan purposes. But since voting presently is a privilege, any state has the power to deny citizens a vote or not count it. And as Florida's Republican legislature was prepared to do in the 2000 presidential election (before the U.S. Supreme Court made it unnecessary), a state may simply disregard citizens’ votes and choose electors itself.

In mid-October, former employees of “Voters Outreach of America,” a firm contracted by the Republican National Committee to register voters in Nevada, revealed that their bosses were systematically destroying registrations of citizens who registered as Democrats. The alleged perpetrators could be convicted of felonies, but because the news came after the state registration deadline, those citizens could not re-register. Similarly, though media attention halted the Ohio scheme of discarding new registrations due to incorrect paperweight, those whose forms already were trashed had no constitutional grounds to challenge the action.

Across Lake Erie, Michigan state legislator John Pappageorge told a Republican Party gathering "If we do not suppress the Detroit vote, we're going to have a tough time in this election.” Detroit is 80% black and votes overwhelmingly Democratic.

Less publicized, but no less serious disenfranchisement cases abound, such as South Dakota’s state officials illegally denying ballots to Native American voters not carrying photo ID in the 2002 election.

While we lack a right to vote, millions of citizens are disenfranchised permanently for past felonies, even after they’ve served any sentences. Incredibly, offenses such as marijuana possession that are considered misdemeanors in some states are used to deny voting privileges for life in others (including Florida). Such inequity results from our ability to vote being left to the whims of 50 states and thousands of separate and unequal local governments. It’s a mockery of the Constitution’s “equal protection” promise.

A right to vote also could help citizens challenge anti-democratic structures that routinely prevent citizens in several states from enjoying a choice other than Democrats or Republicans. Georgia, for example, has institutionalized a two-party duopoly devoid of competition in the “marketplace of ideas” by requiring independent or "third party" candidates for U.S. Representative to gather signatures from 5% of registered voters, a feat that no person has accomplished in 40 years.

Washington D.C. residents, who lack any voting representation in Congress (their “Representative” in the House can speak, but has no vote), need no explanation of the problem. Just months before the Supreme Court decided Bush v. Gore in 2000, it ruled (Alexander v. Mineta) that the 600,000 or so (mostly black) residents of Washington D.C. have no legal recourse, because our Constitution "does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote.” And it’s left to states to decide who is qualified.

Not only do District residents lack a voice on the U.S. laws, but also Congress has ultimate power over the local laws under which they live, including veto power over the democratically elected Council of the District of Columbia. District residents outnumber those of Wyoming, pay federal taxes, make up a disproportionately large share of our military casualties, and are treated like state residents in hundreds of statutes. Yet politically, they are more like subjects than citizens.

Those who think the Supreme Court could rectify these injustices through a more democratic interpretation of our Constitution might wait a long time. In Bush v. Gore, justices in the 5-4 majority reinforced their belief that "the individual citizen has no federal constitutional right to vote..." Although their statement refers to electoral votes for president, it reinforces the view that voting is merely a state function and a privilege granted at the discretion of those in power.

Though some may consider the legal reasoning in that decision dubious, blaming the Court is pointless. To realize the promise of one person, one vote, it’s the responsibility of all U.S. citizens to advance a Constitutional Amendment that will transform a right to vote from myth to reality.

Representative Jesse L. Jackson Jr. (D-IL) is the sponsor of House Joint Resolution 28 to establish a constitutional right to vote. Jeff Milchen directs ReclaimDemocracy.org, an organization working to revitalize American democracy and restore citizen authority over corporations.

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