Thursday, October 31, 2013
CRL&P has noted several arguments for considering the right to vote as protected First Amendment speech.
Voting was done publicly until the end of the 19th century, and open voting changes the nature of the expression. Viva voce voting, for example, required voters to announce their votes publicly, and this declaration had persuasive value. The most respected citizens voted first, and thus candidates sought their support in order to influence voters down the line.
George Washington played this game in order to win his first election. In The Varieties of Political Experience in Eighteenth-Century America, Professor Richard Beeman explains:
Voting in Virginia was conducted viva voce, so the assembled freeholders (and candidates) were able to watch the course of the election as it unfolded...
As the balloting proceeded, it was apparent to all assembled at the courthouse that virtually all of the men of influence in the county had swung their support to Washington... The strategy of marshalling a prominent display of support early in the election was, at least in this case, highly successful, as Washington raced to an early lead that only grew as the day wore on.
Ultimately, the question is whether voting communicates an idea. Even ignoring the context of voting in small rural communities, the expressive value of viva voce voting is at least as expressive as some forms of protected First Amendment political speech (e.g. flag burning, political yard signs, etc.) Further, as Justice Thomas observed in his dissent in Nixon v. Shrink Missouri Gov't PAC, "[I]t is up to the citizens...to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade." 528 U.S. 377, 420 (2000).
Today, The Atlantic calls for a constitutional amendment for the right to vote:
It is becoming increasingly obvious that the Supreme Court decision in Shelby County v. Holder, which eviscerated the Voting Rights Act, is leading to a new era of voter suppression that parallels the pre-1960s era—this time affecting not just African-Americans but also Hispanic-Americans, women, and students, among others.
The reasoning employed by Chief Justice John Roberts in Shelby County—that Section 5 of the act was such a spectacular success that it is no longer necessary—was the equivalent of taking down speed cameras and traffic lights and removing speed limits from a dangerous intersection because they had combined to reduce accidents and traffic deaths.
In North Carolina, a post-Shelby County law not only includes one of the most restrictive and punitive voter-ID laws anywhere but also restricts early voting, eliminates same-day voting registration, ends pre-registration for 16- and 17-year-olds, and bans many provisional ballots. Whatever flimsy voter-fraud excuse exists for requiring voter ID disappears when it comes to these other obstacles to voting
In Texas, the law could require voters to travel as much as 250 miles to obtain an acceptable voter ID—and it allows a concealed-weapon permit, but not a student ID, as proof of identity for voting. Moreover, the law and the regulations to implement it, we are now learning, will create huge impediments for women who have married or divorced and have voter IDs and driver's licenses that reflect maiden or married names that do not exactly match. It raises similar problems for Mexican-Americans who use combinations of mothers' and fathers' names.
In a recent election on constitutional issues, a female Texas District Court judge, Sandra Watts, who has voted for 49 years in the state, was challenged in the same courthouse where she presides; to overcome the challenge, she will have to jump through hoops and possibly pay for a copy of her marriage license, an effective poll tax on women.
The Justice Department is challenging both laws, but through a much more cumbersome and rarely successful provision of the Voting Rights Act that is still in force. It cannot prevent these laws and others implemented by state and local jurisdictions, many of which will take effect below the radar and will not be challenged because of the expense and difficulty of litigation.
Voter suppression is nothing new in America, as the pre-civil-rights era underscores. But it is profoundly un-American. The Texas law, promoted aggressively by state Attorney General Greg Abbott, the GOP choice for governor in next year's election, establishes the kinds of obstacles and impediments to voting that are more akin to Vladimir Putin's Russia than to the United States.
Looking at the demographics in Texas, the Republican authors of the law decided that suppressing votes was easier than changing either policies or approaches to appeal to the emerging elements of the state's electorate. In Virginia, with polls showing that Democratic gubernatorial candidate Terry McAuliffe's robust lead over Republican opponent Ken Cuccinelli is driven by a huge gender gap, it is not surprising that Republicans in Texas are trying to suppress the votes of women as much as those of Hispanic-Americans.
A new Voting Rights Act would help to ameliorate some of these problems, especially if it applied nationwide (many of the restrictive laws are occurring in non-Southern states such as Indiana and Kansas). I have previously suggested a host of areas that could be included in a VRA 2.0 to make voting easier and more convenient. But despite the endorsement of a new VRA by influential Republicans such as Rep. Jim Sensenbrenner of Wisconsin, the odds of enacting new voting-rights legislation in today's thoroughly dysfunctional and hyperpartisan Congress are slim.
The effort should be accelerated. We need a modernized voter-registration system, weekend elections, and a host of other practices to make voting easier. But we also need to focus on an even more audacious and broader effort—a constitutional amendment protecting the right to vote.
Many, if not most, Americans are unaware that the Constitution contains no explicit right to vote. To be sure, such a right is implicit in the Fifteenth, Nineteenth, and Twenty-Sixth amendments that deal with voting discrimination based on race, gender, and age. But the lack of an explicit right opens the door to the courts' ratifying the sweeping kinds of voter-restrictions and voter-suppression tactics that are becoming depressingly common.
An explicit constitutional right to vote would give traction to individual Americans who are facing these tactics, and to legal cases challenging restrictive laws. The courts have up to now said that the concern about voter fraud—largely manufactured and exaggerated—provides an opening for severe restrictions on voting by many groups of Americans. That balance would have to shift in the face of an explicit right to vote. Finally, a major national debate on this issue would alert and educate voters to the twin realities: There is no right to vote in the Constitution, and many political actors are trying to take away what should be that right from many millions of Americans.
Reps. Mark Pocan, D-Wis., and Keith Ellison, D-Minn., have introduced in Congress a constitutional amendment that would guarantee the right to vote. It has garnered little attention and no momentum. Now is the time to change that dynamic before more states decide to be Putinesque with our democracy.