I helped my colleague Austin Plier with this piece. Austin is a democracy fellow who runs our Promote Our Vote project. Visit FairVote's blog for the full version.
This election season, the voting wars have been waged in various courts across the nation, with decisions that will have very real consequences for voters. The Supreme Court has asserted itself, making final decisions on voting changes in a number of states, including Ohio, North Carolina, Texas, and Wisconsin. In Arkansas and Georgia, a mixed bag of court rulings and lawsuits have left Americans confused as to who can vote, how they can vote, and when they can vote.
As campaigns approach their conclusion, the debate over voting has become a hotbed for political rhetoric and buzzwords like "voter suppression" and "electoral integrity." In the meantime, Americans can only look on and watch their voting rights make various disappearing and reappearing acts in a legal magic show run by courts and politicians.
How can a basic, fundamental right such as voting be so contentious and vulnerable in our democracy? The answer, as we at the non-partisan electoral reform group FairVote have noted for years, is that our right to vote only has protection as an affirmative right at the state level. That's right - we currently do not have an explicit federal right to vote. This absence is the underlying reason for the disruptive period of electoral chaos we are currently witnessing.
Let's do a quick recap:
The U.S. Supreme Court was first asked to weigh in on voting changes in Ohio, where the 6th Circuit upheld a federal judge's decision that changes such as reducing the early voting period violated Section 2 of the Voting Rights Act. On Sept. 29th, the Supreme Court reversed that ruling in a 5-4 vote. In North Carolina, the 4th Circuit overruled a trial judge who upheld a series of new voting laws, including ending same-day voter registration during early voting. Once again, the Supreme Court reversed the ruling on Oct. 8th, allowing the changes to be implemented.
The Supreme Court also acted in Texas on Oct. 18th, affirming a decision by the 5th Circuit to uphold the state's new voter ID law, despite Justice Ginsberg's strongly worded dissent. An estimated 600,000 Texans do not have an ID required by the new law and will not be able to vote on Election Day. Elsewhere, the Arkansas Supreme Court found a voter ID law passed by the state's legislature unconstitutional, basing its ruling on the right to vote as enumerated in the state's constitution. The decision was split 5-4 along party lines, however, and could have had different result had the majority chosen to cite federal precedent--a practice known as "lockstepping"--which allows state courts to weaken voting protections in state constitutions.
Such was the case in Wisconsin just a few months ago, when a 5-4 conservative majority on the state's highest court bypassed the right to vote in the Wisconsin Constitution and upheld a similar voter ID law, citing various precedents set by the U.S. Supreme Court under the federal Equal Protection Clause. A federal district court originally overturned the voter ID law in April, however, the 7th Circuit issued a stay on that ruling which, in turn, was vacated by the U.S. Supreme Court in a 6-3 decision on Oct. 9th. (Are you confused yet? Just imagine how Wisconsin voters feel.) As a result, the law will not be in effect until after election season.
In a similarly exasperating version of "electoral chaos", Georgia for weeks was tangled in lawsuits from thousands of voters because their registration applications seemed to not be processed. The New Georgia Project and the NAACP fought on behalf of these voters, but it lost in court. The state may well still hold not one, but two runoffs later this year, for governor in December and Senator in early January.
Without the protection of a constitutional right to vote, the voting wars will continue to be waged, state by state, across the nation. It's time to change that. House Joint Resolution 44, introduced this past year by U.S. House Members Mark Pocan and Keith Ellison, would amend the Constitution to establish an explicit, individual right to vote.
By enshrining the right to vote in our constitution, Congress would be empowered to enact minimum electoral standards to guarantee a higher degree of legitimacy, inclusivity, and consistency across the nation. Separate and unequal elections among our thousands of voting jurisdictions would no longer be allowed. Only then will every vote and every voice be heard in every election, and our democracy fulfill its promise.