The San Juan Daily Star
Does the Constitution guarantee a right to vote? The answer may surprise you.
By Michael Wines
The Constitution makes reference to voting 15 times in the original document and another 22 in the amendments. But somewhat surprisingly, none of those mentions makes an explicit declaration that Americans have a right to vote — something many politicians and their supporters consider fundamental to democracy. Here’s a look at why that is and what rights voters actually have.
What did the Founding Fathers believe about the right to vote?
If it seems odd that such a fundamental right was not enshrined in writing, the explanation is simple enough: The authors of the Constitution, many of them deeply suspicious of universal suffrage, could not agree on a single standard for the right to cast a ballot.
For all their talk about “We, the people,” most of the Founding Fathers wanted to limit voting rights to property owners like themselves, Harvard law professor and historian Michael J. Klarman wrote in his 2016 book “The Framers’ Coup: The Making of the United States Constitution.”
Gouverneur Morris, a New Yorker who wrote the preamble to the Constitution, argued that “the ignorant and the dependent can be as little trusted with the public interest” as could children, Klarman wrote. James Madison warned that voting should be restricted to the wealthy, “the safest repositories of republican liberty,” because the poorer classes would be swayed by populist appeals. Benjamin Franklin, the most prominent dissenter, pointed out that it was the commoners who had fought for and won American independence and that the rich were hardly immune to corrupting influences.
In the end, the property requirement failed to make it into the Constitution in part because many states already had extended the franchise beyond landholders. Disenfranchising those voters, the constitutional convention delegates feared, could wreck what already seemed to be shaky prospects for approving the new Constitution.
Their compromise left decisions on voter qualifications to the states, but it placed the choice of U.S. senators and the president in the hands of state legislators, not voters. That changed in the early 19th century as state legislatures increasingly delegated the choice of presidential electors to ordinary voters, and in 1913, after the 17th Amendment decreed the popular election of senators.
Does a right to vote exist today?
Various constitutional amendments prohibit denying voting rights to women, racial minorities, citizens older than age 18 and people unable to pay election-related fees like poll taxes.
But the Constitution contains no explicit right to vote. Rather, the Supreme Court has recognized an implicit right to vote via the 14th Amendment, enacted in 1868 after the Civil War, which aimed to protect the civil rights of people who had been enslaved and guarantees “the equal protection of the laws.”
The court has recognized it in a handful of decisions dealing with the meaning of those amendments. “Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections,” Chief Justice Earl Warren wrote in the historic 1964 ruling, Reynolds v. Sims, that cemented the concept that every vote has an equal value. But even a Supreme Court ruling falls short of the guarantees of rights such as freedom of speech and religion that are embedded in the Bill of Rights.
In practice, the Constitution leaves most decisions about the ballot to state and federal legislators, saying that the “times, places and manner” of elections are state matters unless Congress sets nationwide standards.
What most Americans see as an inalienable right to vote is actually the product of decades of court rulings and legislative decisions, most of them — but hardly all — slowly expanding a legal guarantee of the ability to cast a ballot. Congress could give everyone the right to vote by mail, but since it has not, mail balloting is subject to a jumble of state laws. The 19th Amendment, ratified in 1920, gave women the right to vote, but by then, Wyoming had been letting women vote for 50 years, even when it was a territory, not a state.
What does the future hold?
For decades, courts and Congress have taken the lead in upholding a legal right to vote — in the Voting Rights Act of 1965; in the 1966 Supreme Court case, Harper v. Virginia Board of Elections, which outlawed poll taxes; and in federal legislation in 1993 that set ground rules for registering new voters and removing existing voters from the rolls.
In lawsuits seeking to enforce or protect existing election laws, the 14th Amendment’s implicit guarantee of voting rights has become a mainstay of plaintiffs’ arguments.
“As long as those precedents are respected, I think it’s fair to say there’s a constitutional protection of a basic right to vote,” Edward B. Foley, a leading scholar of election law at Ohio State University, said in an interview.
But the evolution of an increasingly conservative Supreme Court with a skeptical approach to voting rights and an emerging record of upending precedents means that the current interpretation of the right to vote is no longer a sure bet, he said. The court is considering two major voting cases this term — one that could limit the Voting Rights Act’s power to remedy racial disparities in political districts, the other arguing that state courts have no authority to overturn legislative decisions on political redistricting and election laws — that could reverse once-solid precedents.
Indeed, what most voters would consider a foundational right — electing a president — exists nowhere in the Constitution, which says presidential electors may be appointed “in such Manner as the Legislature thereof may direct.”
Democrats in both the U.S. House and Senate filed legislation last year that would establish a statutory right to vote, but neither bill has received a hearing. And for years, voting rights advocates have pressed for a new constitutional amendment affirming citizens’ right to cast a ballot. So far, it has all been to no avail.