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Wednesday, October 9, 2013

A surprising story about unsurprising circumstances: political partisanship burdening the right to vote

From The Guardian, a fascinating example of the unintended consequences of voter registration. The article begins:

Ballot300Mark Wandering Medicine has sacrificed more than most for his country. He served six years in the US marines, fought through the bloodiest years of the Vietnam war and almost lost a leg when his scouting unit was ambushed near the North Vietnamese border in 1972.

Since he returned home to the Northern Cheyenne reservation in Montana, however, he has received scant thanks for his service. He spent 13 years battling government bureaucrats before receiving his first disability payment. Like many Native Americans raised on desperately poor reservations in remote parts of the country, he has never lived far from the poverty line.

Now he is fighting once more, this time to overcome a century and a half of disenfranchisement and secure voting rights for his fellow Native Americans. He has barely voted over the past 40 years, not because he hasn't wanted to but because it has been too difficult. The only sure way to register to vote, he says, is to make a 157-mile round trip from his home to the nearest county seat.

There is no public transport, and most people can't afford the trip – even assuming they have a working car with valid license plates and insurance, which is rarely the case. The few who do make the journey have to run a gauntlet of racism and hostility that, they say, can often land them in jail on charges of drunkenness and public disorder.

The article notes that Native American tribes have requested "satellite voting offices" for their reservations, and one Native American rights group has even offered to pay for them. However, county and state officials refuse to grant their request. 

Unsurprisingly, partisan politics are involved. As the article observes: "[Making it easier for Native Americans to vote] could also help sway pivotal senate and gubernatorial elections in the region, many of which have come down to a few hundred votes over the past decade and may do again as Republicans fight to regain control of the Senate next year." 

Of course, partisan motivations have always influence debates over election laws and voting rights. Since the American Revolution, projected election outcomes have determined which party supports (or opposes) proposed election laws. Indeed, winning elections always depends on parties’ ability to increase their voting bloc at the expense of their opponents.

On prominent example of how partisan motivations determined party support for election laws occurred during the Ballot Reform Era debates over the adoption of the Australian ballot. Historically, political parties had printed their own ballots and distributed them to their supporters themselves. The party ballots generally were printed in different sizes and colors, and thus voter secrecy was non-existent. The Australian ballot sought to change this by requiring voters to use state printed ballots available only at the polls on Election Day. The new ballot also provided for secret voting.

New York Democrats initially opposed the Australian ballot. When Republicans passed Australian ballot bills over Democratic minorities, Democratic Gov. David B. Hill (NY) vetoed them. Among other things, he claimed that the Australian ballot unconstitutionally disenfranchised illiterate voters who relied on distinguishable party ballots to confirm their choices. At the time, Democrats relied heavily on New York City and other urban areas to win majorities for state-wide offices. As a result, Democrats made concerted efforts to ge illiterate supporters to the polls.

However, Indiana Democrats were adamant supporters of the Australian ballot and were able to use legislative majorities to get the new ballot passed. There, Jacob Dunn, Jr., "a professional Democrat[,]" was the Australian ballots most ardent supporter. He used his connections in the press to garner support for the reform. And, his support was purely partisan. According to one scholar, "As he admitted after the bill's passage, Dunn pushed the Australian ballot system for politically motivated reasons. Honest elections were need, he argued, because his party could not compete with Republicans' 'election rascality' since the Democratic party, because of its support for tariff reduction, faced continued opposition from [business interests]."

Political parties will always be motivated to manipulate election laws for short-term political gain. They have only winning in mind, and only rarely will American citizens benefit from these efforts.

Party manipulations of election laws have led some to call for a right to vote amendment to U.S. Constitution (e.g. here and here). But, procedures for passing constitutional amendments significantly (and justifiably) burden efforts to create new constitutional protections. As a result, such attempts are likely to fail. But, as The Guardian’s story on Mark Wandering Medicine tribulations clearly demonstrates, more protection for voters is needed.

I argue that the right to vote for state and federal offices is already protected by the Constitution as First Amendment political speech. Prior to the adoption of the Australian ballot, voting methods were public. Indeed, in some cases, votes were actually spoken. As I noted yesterday, this is the focus of my research. In the coming days, I will explore this argument further and provide the framework for my arguments.

http://lawprofessors.typepad.com/civil_rights/2013/10/a-surprising-story-about-unsurprising-circumstances-political-partisanship-burdens-the-right-to-vote.html

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Comments

It took the 15th Amendment to extend the Right to vote to African Americans and another Amendment to extend the Right to vote to women. Then the 26th Amendment was passed to set the bar at age 18. If you are old enough to be drafted into war then you are old enough to vote. The First Amendment does not convey the Right to vote.

Posted by: Liberty1st | Oct 14, 2013 11:41:23 AM

Whoops. But, the First Amendment could be construed to say that it establishes the right to vote. The Right to Petition the government for redress of grievances is a good prong to hang that hat on.

Posted by: Liberty1st | Oct 14, 2013 11:44:19 AM

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