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Iraq's constitution has something America's doesn't: The right to vote
May 26, 2013 3:37 PM   Subscribe

The Missing Right: A Constitutional Right to Vote is an essay regarding the proposed constitutional amendment to provide all Americans the affirmative right to vote and empower Congress to protect this right. The right to vote is the foundation of any democracy and yet, surprisingly, such a right is not part of the constitution. U.S. Reps. Mark Pocan (D-WI) and Keith Ellison (D-MN) are trying to create that right and limit the power of special interest to chip away at it.
posted by 2manyusernames (29 comments total) 14 users marked this as a favorite

 
i've been thinking of an askme along these lines: where are the laws that outline what voting is, who can do it, and how votes are counted? does it vary on a local vs. state vs. federal level?
posted by cupcake1337 at 3:48 PM on May 26, 2013


I would specify the right to vote for up to two candidates in a field with no runoff election, to achieve a majority for the winner and to avoid a spoiler.
posted by Brian B. at 3:53 PM on May 26, 2013


What you call a "spoiler" is what most civilized countries call "pressure to form a coalition" or "protect the flank". It's a good thing.
posted by DU at 4:08 PM on May 26, 2013 [2 favorites]


Isn't it an unenumerated right? At any rate, its subject to the 14th amendment equal protection clause such that any restrictions have to pass strict scrutiny just like any other right. If we're going to put our backs into something, I think I'd rather see the object be something a little less symbolic and a little more meaningful (direct election, say, or nonpartisan election commissions)
posted by jpe at 4:10 PM on May 26, 2013 [3 favorites]


Such an amendment would propel us towards Internet voting very quickly out of logistical necessity to allow the in-person and mail-in resources to focus on quickly serving those without the Internet. Prison voting volunteer "helpers" would be an absolute partisan gold rush.
posted by michaelh at 4:10 PM on May 26, 2013


To keep this in line with the form that our Constitutional rights currently take, and to increase odds of bipartisan support, this should be framed as a negative right, a "freedom from"--

"The right of each citizen to cast his or her vote in a election for public office within the jurisdiction of that citizen's residence shall not be infringed."

Good on 'em.
posted by oneironaut at 4:11 PM on May 26, 2013 [4 favorites]


Who could possibly be against this?

(Yes, I know who)
posted by Artw at 4:17 PM on May 26, 2013 [5 favorites]



who can do it, and how votes are counted? does it vary on a local vs. state vs. federal level?


In theory, states control voting. Because it is, for all intents and purposes, a federal right, however, its also subject to extensive federal regulation and constitutional requirements. IOW, its a complex hodge podge of state and federal rules.
posted by jpe at 4:23 PM on May 26, 2013


It's a good thing.

I disagree. The two party system is fatally flawed and a result of the spoiler effect.
posted by Brian B. at 4:23 PM on May 26, 2013 [1 favorite]


It's a good thing.

I disagree. The two party system is fatally flawed and a result of the spoiler effect.


instant run-off voting
posted by cupcake1337 at 4:34 PM on May 26, 2013 [1 favorite]


What you call a "spoiler" is what most civilized countries call "pressure to form a coalition"

There is just as much coalition pressure in a two-party system. The coalitions simply form before the elections rather than after the elections.
posted by Justinian at 4:39 PM on May 26, 2013 [4 favorites]


Isn't it an unenumerated right? At any rate, its subject to the 14th amendment equal protection clause such that any restrictions have to pass strict scrutiny just like any other right. If we're going to put our backs into something, I think I'd rather see the object be something a little less symbolic and a little more meaningful (direct election, say, or nonpartisan election commissions)

It's far more than merely symbolic to convicted felons in many states, black, latino, and poor people subject to voter suppression in recent federal elections, and anyone who remembers the Jim Crow era. While this doesn't affect me personally, I would be far less worried about the Koch brothers and similar if basic democratic rights including (though not limited to) the right to vote were better protected.
posted by eviemath at 4:47 PM on May 26, 2013 [12 favorites]


Justinian: "There is just as much coalition pressure in a two-party system. The coalitions simply form before the elections rather than after the elections."

That's not even close to being the same thing though.
posted by Hairy Lobster at 5:56 PM on May 26, 2013


It's far more than merely symbolic to convicted felons in many states, black, latino, and poor people

Two things there: (1) felons; and (2) traditional targets of suppression efforts. First, felons would be clearly helped assuming that the proposed amendment partially overturned the 14th amendment, which carved out voting for felons as a right that states could continue to abrogate. re: traditional targets: as noted, any voting regulations currently have to meet strict scrutiny. If the amendment just codifies the right to vote as an enumerated, express right, the right to vote would be subject to the same level of scrutiny. eg, if a given suppression regulation is constitutional currently, it wouldn't cease to be so simply because we enumerate the right in an amendment: laws are subject to strict scrutiny now, and would continue to be so if made an express right. The substantive law doesn't change just because it's made an enumerated right. That's what I meant when I said the amendment would appear to be, in large part, symbolic.
posted by jpe at 6:17 PM on May 26, 2013 [1 favorite]


I found the first link really interesting -- the idea that even though this wouldn't be ratified in the current political climate, it's an important symbolic argument that could change minds and policies along the way. And I believe them, because reading the text of the amendment has had that effect on me. I'm sitting here thinking about the things that would need to change for full voting rights to be extended to all citizens, and how important it is that they are, and wondering why I'm not more involved in that.

(Side note: I don't get a lot of opportunity to be proud of Wisconsin politicians these days, but Mark Pocan is one of the shining exceptions. He's my representative and he is great.)
posted by gerstle at 6:37 PM on May 26, 2013


Amendment text that focuses on citizens' right to vote in "the jurisdiction of their residence" sounds nice and fits stylistically with other amendments, but misses a pretty obvious target: gerrymandering. Additionally, failing to define "residence" would give quite a bit of license to disenfranchise students, prisoners, the homeless, or our armed forces abroad.

I don't think this is one we can get away with by defining a "negative" right or using simple, "clear" text. There's a lot of devil in the details here, and if we could trust the grey area to be interpreted fairly then we wouldn't need this amendment in the first place.

I made this rough list a while back of things that I think largely define the right to vote. The nutshell is this, though: it should be the government's responsibility to actively provide for the free and equal exercise of the right to vote. Anything less will just be another guideline that can be implemented in convenient ways.
posted by Riki tiki at 6:58 PM on May 26, 2013 [1 favorite]


(after a little more looking around, I stand corrected; not all voting rights are subject to strict scrutiny. Crawford v Marion County Election Board. Embarrassing for me, but I certainly don't want misinformation hanging out there uncorrected, especially when I'm the source! So, that obviously changes my assessment very considerably, and apologies for going down the rabbit hole like that)
posted by jpe at 7:12 PM on May 26, 2013 [3 favorites]


As Riki tiki points out though, there's a difference between voting rules being theoretically subject to certain scrutiny, and the actuality of what gets enforced. A clear, positive, right to vote, enacted at the federal level, could open up some more enforcement tools which could help deal with issues like differential provision of resources to voting districts leading to racial and class-based inequities, voter intimidation and misinformation tactics, standardizing rules to allow students and homeless to vote, and maybe even gerrymandering (depending on how the law was written at the federal level).
posted by eviemath at 8:25 PM on May 26, 2013


Oh, it would be so great to see all US citizens have a right to vote. The disenfranchisement of felons is such appalling nonsense, especially given the racism of our judicial system.
posted by medusa at 10:02 PM on May 26, 2013 [2 favorites]


jpe: Isn't it an unenumerated right? At any rate, its subject to the 14th amendment equal protection clause such that any restrictions have to pass strict scrutiny just like any other right. If we're going to put our backs into something, I think I'd rather see the object be something a little less symbolic and a little more meaningful (direct election, say, or nonpartisan election commissions)
If it were, then all the various proposals to limit access to voting would be struck down easily. You don't see many laws on the books requiring you to provide ID to prove you can speak freely; your right to bear arms is not limited to understaffed arms-bearing stations; you can worship from overseas without fearing the government will limit you pending a recount of churches.
posted by IAmBroom at 11:14 PM on May 26, 2013 [2 favorites]


While I intellectually agree with this idea, I also shudder with fright and dread at the thought of what the end result might look like, given the amendment process. It almost seems like a purpose-built vehicle for further marginalization of various groups.
posted by Thorzdad at 4:15 AM on May 27, 2013


where are the laws that outline what voting is, who can do it, and how votes are counted? 42 USC Chapter 20 - Elective Franchise

The US Constitution mentions the right to vote a number of times, the headline something America's doesn't: The right to vote means to say something like there is nothing explicit giving white males the right to vote, but it's implied in, say, Article 1, Section 2. The right to vote is refereed to explicitly in the 14th Amendment and expanded on in 15th, 17th, 19th, 24th and 26th Amendments.

Happy Memorial Day!
posted by relish at 5:51 AM on May 27, 2013 [1 favorite]


If anyone brings up the 2nd amendment again, l'm all for a one-man one-bullet interpretation there.
posted by drowsy at 6:11 AM on May 27, 2013 [1 favorite]


This seems pretty silly to me given the explicit statement of the right to vote in the 14th Amendment (albeit limited to men over 21) and the extraordinarily stern punishment stated for depriving such citizens of their right to vote.

If you think that stating an amendment would work, it's already there. If you think that it wouldn't, which is the smart bet given how these provisions of the 14th Amendment has never been enforced, then why are you proposing an amendment?

Pocan's discussion is doubly silly as the text of their amendment offers no explicit protection against onerous ID requirements, registration requirements, or anything else. And the sorts of jackasses that propose these things now would continue to do so under their amendment by simply pretending that their restrictions actually protect citizens' right to vote against dilution from people who are not allowed to vote in their jurisdiction. Which they do now.

I'd be all for eliminating those restrictions. But you do that by eliminating them explicitly.
posted by ROU_Xenophobe at 7:56 AM on May 27, 2013


I'd say this would be much, much more than symbolic. As soon as one has a positive right to vote, then anything that restricts it (even if its in effect rather than intention) is subject to the same kind of strict scrutiny as restrictions on speech, assembly, or right to bear arms.
posted by ThatFuzzyBastard at 8:08 AM on May 27, 2013


Laws that burden voting are already considered under strict scrutiny.
posted by ROU_Xenophobe at 8:29 AM on May 27, 2013


Laws that burden voting are already considered under strict scrutiny.

The current Supreme Court sure doesn't act like it.
posted by jonp72 at 12:37 PM on May 27, 2013 [1 favorite]


Are we talking about right to vote, or right to have your vote count?

We now have the capability to have every individual's vote counted, and yet we still have the Electoral College. Let's talk about the US Constitution...
posted by BlueHorse at 3:43 PM on May 27, 2013


"Proposing a constitutional amendment" is, for those not aware of American politics, a specialised form of showing that you care about something in a way that is guaranteed not to change anything.

That said, it would be nice for the US to step into... well, let's say the 20th century and be done with the bullshit rhetorical prestidigitation of negative rights.
posted by holgate at 9:34 PM on May 27, 2013 [1 favorite]


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