Recent presidential elections have trained a harsh spotlight on electoral practices we thought had been buried by the Voting Rights Act of 1965. We have seen statewide purges of thousands of African American voters falsely accused of being felons, vastly disproportionate invalidation of ballots in majority African American and Hispanic counties, refusals by partisan state elections officials to count valid ballots, phony voter registration drives in which registration cards were thrown away, and naked manipulation of candidates’ access to the ballot.
The reemergence of basic voting rights as contested terrain reveals a structural weakness in American democracy: the citizens of the country still lack an affirmative constitutional right to vote and to have their votes counted.
The Supreme Court has often invoked the absence of a right to vote. In Bush v. Gore, 531 U.S. 98 (2000), the Court’s majority stated that the “individual citizen . . . has no federal constitutional right to vote for electors for the President of the United States.” Id. at 104. Thus, even when state legislatures grant the people the right to vote in presidential elections, they can always revoke it and simply “take back the power to appoint electors.” Id.
But the case of the missing right to vote is not simply a strange artifact of the Electoral College. Just as the Court has upheld the power of states to reject write-in ballots, Burdick v. Takushi, 504 U.S. 428 (1992), and approved the imposition of huge obstacles to ballot access for minor parties, Jenness v. Fortson, 403 U.S. 431 (1971), it has turned a cold shoulder to people still seeking the right to vote.
Today more than 9 million American citizens are structurally disenfranchised, a population larger than the combined populations of Alaska, Delaware, Maine, Montana, Nebraska, North Dakota, South Dakota, Vermont, and Wyoming. Most citizens who remain completely or partially disenfranchised by law belong to minority groups historically consigned to the margins of American politics.
The disenfranchised cannot obtain voting rights in court. Despite the Warren Court’s embrace of the “one person, one vote” principle, the Supreme Court has since rejected claims that equal protection confers universal adult suffrage and representation. The Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth voting amendments have been read only as antidiscrimination policies forbidding disenfranchisement on the basis of race, ethnicity, sex, failure to pay a poll tax, or age over eighteen. They do not translate into a universal right to vote, the kind now found in most democratic constitutions on Earth. The new South African Constitution, for example, defines the country as a “sovereign democratic state” with “universal adult suffrage” and a “multiparty system of democratic government” and provides that “every adult citizen has the right to vote in elections . . .” The Canadian Supreme Court recently struck down felon disenfranchisement laws as a violation of that nation’s right-to-vote constitutional provision. See Suave v. Canada (Chief Electoral Officer), 2002 SCC 68. File No.: 27677.
Because we have no similar provision, millions of Americans are locked out of the representative process. Who are they, and what might be done to secure their voting rights?
Citizens in the District of Columbia
More than 570,000 taxpaying U.S. citizens live in the District of Columbia and lack any voting representation in Congress. They pay more federal taxes per capita than the residents of every state but Connecticut and are fighting in Iraq right now. Under the terms of the Twenty-Third Amendment, D.C. residents can vote in presidential elections. Yet they have been continually frustrated in efforts to recover the voting representation in the U.S. Senate and House of Representatives that was lost in 1800 when Congress passed the Organic Act.
This is a double injustice since Congress acts not only as the national legislative sovereign for District residents on issues of war and peace, the federal budget, confirmation of federal judges, and ultimately as their local legislature too. The District Clause, U.S. CONST. art. I, § 17, cl. 8, confers upon Congress “exclusive Legislation” over the District. Despite granting residents limited home rule in 1973, Congress has never hesitated to overturn and replace the local government on hot-button issues, including abortion, taxing nonresident income, and school vouchers, to name a few. Congress has even forbidden the District to spend its own money seeking equal voting rights. Against Congress’s proclivity to treat the District as a testing ground for pet agendas, District residents have only a single nonvoting delegate in the House. Fortunately, Representative Eleanor Holmes Norton has been nimble and resilient in promoting democracy for her constituents against the maddening condescension of her colleagues.
Still, the District’s efforts to attain equal membership in America have been lonely, and the Constitution has been effectively mobilized against both statehood and democracy for the District. In the early 1990s, a bill to grant a petition for statehood for “New Columbia” fell by a two-to-one margin in the House and never saw the light of day in the Senate. Members of Congress repeatedly cited the District Clause as a warrant for congressional control and continuing disenfranchisement of the populace.
Just months before its muscular equal protection decision in Bush v. Gore, the Supreme Court blithely rejected an equal protection attack on congressional disenfranchisement of the citizens in the District, affirming a two-to-one decision of the D.C. District Court in Alexander v. Mineta, 90 F. Supp. 2d 35 (D.D.C. 2000), aff’d, 531 U.S. 940. The plaintiffs alleged that their disenfranchisement and nonrepresentation in Congress violated equal protection and the privileges and immunities of national citizenship. The district court found that “the Equal Protection Clause does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote.” Id. at 66. To be “qualified” for congressional representation, you must live in a state and have the state grant you the vote. The fact that the District is treated as though it were a state for literally hundreds of constitutional and statutory purposes, from diversity jurisdiction and jury trials to highway funds and military conscription, did not impress the majority. Citizens living in the District simply inhabit the wrong place for democratic participation.
Citizens in U.S. Territories
More than 4 million American citizens live in the territories of Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands, and none have the right to vote for president or have any voting representation in Congress. The several million U.S. citizens living in the territories subject to the sovereignty of Congress under the Territorial Clause, U.S. CONST. art. IV, § 3, cl. 2, solely have nonvoting delegates in the House. The largest contingent lives in Puerto Rico, home to roughly 3.8 million people.
Citizens living in the territories shoulder all the responsibilities other American citizens do except paying federal taxes, unless they work for the federal government. The funds Puerto Ricans would pay in federal taxes go instead to local taxes. Some people believe that this justifies complete disenfranchisement (although they might not be so eager to link federal taxation and representation in the case of the District of Columbia!). But this certainly is not the view of Puerto Ricans, who pay heavy local taxes, serve in the U.S. armed forces, and have been full-fledged American citizens since 1917.
The exclusion of these citizens from voting for the U.S. president has caused resentment in the territories, especially in Puerto Rico. Their political exclusion has also prompted attacks in the United Nations, where other nations characterize the United States as hypocritical because it preaches democracy but practices nineteenth century-style colonialism. One reason military testing in Vieques, Puerto Rico, has been deeply controversial is because Puerto Ricans are categorically locked out of the formulation of national military and foreign policy.
Repeated lawsuits against the disenfranchisement of Puerto Ricans in presidential elections have failed. The Constitution simply makes no provision for territorial residents to be represented in national government. As a political matter, the suffrage question has been submerged in the long-running impasse over commonwealth, statehood, and independence. Without a right to vote for all citizens, the constitutional structure inevitably reduces people living in the territories to colonial status.
Citizens Who Are Felons or Ex-Felons
According to The Sentencing Project and Human Rights Watch, approximately 4.7 million citizens have been disenfranchised—many for life—as a consequence of a felony criminal conviction. Losing the Vote: The Impact of Felony Disenfranchise-ment, at www.hrw.org/reports98/vote/usvot98o-01.htm. This group amounts to about 2 percent of the country’s eligible voting population. In Florida, Mississippi, Virginia, and Wyoming, citizens disenfranchised because of their criminal records constitute fully 4 percent of the adult population. In the 2000 election, Texas and Florida together disenfranchised more than a million people for having criminal records. Id. Florida’s secretary of state even used its felon disenfranchisement policy to falsely purge tens of thousands of lawful voters—disproportionately people of color—whose only crime was to have a name roughly similar to that of an ex-felon.
Felon disenfranchisement is obviously not a strategy of penal deterrence, for it deters no one; or individual rehabilitation, for it clearly educates and reforms no one; or even meaningful punishment, as it is not part of sentencing but is simply imposed on all convicts, regardless of the character of their offense. Rather, it is a strategy of mass electoral suppression, a point that becomes especially vivid when we consider that 1.7 million former offenders have been permanently disenfranchised in eight states,disproportionately in the Deep South. Id. In Florida, more than 600,000 citizens could not vote for president in 2000 because they were former felons, though they had done time and paid their dues to society. This is a striking number when juxtaposed against the winner’s 537-vote victory margin in the state. In Florida and five other states, former felons never get their suffrage rights back unless they win a commutation or pardon from the governor. Eight other states disenfranchise particular categories of former felons or permit them to apply for voting rights after a waiting period.
In a time of racially tainted law enforcement, these policies have dramatic effects on the character of the electorate. In Florida, 31 percent of all African American men are permanently disenfranchised; in Delaware and Texas, it is 20 percent; in Virginia and Mississippi, roughly 25 percent. According to The Sentencing Project, “given current rates of incarceration, three in ten of the next generation of black men can expect to be disenfranchised at some point in their lifetime.” THE SENTENCING PROJECT, FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES (Feb. 2005).
It is difficult to articulate valid reasons why former felons should be disenfranchised. Talk radio discussions of the issue suggest that they will vote to weaken the criminal laws or soften criminal punishment. Even if this unproven and unlikely assumption were true, the premise that we can disenfranchise people based on predictions of how they will vote was rejected in a military voting case, Carrington v. Rash, 380 U.S. 89 (1965), in which the Court said that subclasses of voters could not be “fenced out” based on their politics and likely voting choices.
Yet the Constitution does imply that criminal conviction means a surrender of voting rights. The Supreme Court in Richardson v. Ramirez, 418 U.S. 24 (1974), found that felon disenfranchisement does not violate the requirement of equal protection in the Fourteenth Amendment’s section 1 because section 2 explicitly authorizes states to disenfranchise persons convicted of “rebellion, or other crime” without losing any congressional representation. Id. at 56. The only ray of light to pierce this gloomy reading came in Hunter v. Underwood, 471 U.S. 222 (1985), where the Court found that Alabama’s legislature had violated equal protection by selectively disenfranchising persons convicted of “crimes of moral turpitude,” a state policy based on well-documented racial motivations and practices. But this holding has been closely cabined to its graphic factual record of racial bias.
Using section 2 of the Voting Rights Act to undo felon disenfranchisement policies has not worked. Although the Act prohibits any voting practice or procedure that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color,” 42 U.S.C. § 1973(b), the courts that have faced the racially skewed effects of states stripping prisoners of their suffrage rights have consistently found that the Voting Rights Act does not prohibit states from disenfranchising criminal convicts. For recent cases, see Johnson v. Governor of Florida, 353 F.3d 1287 (11th Cir. 2003); Muntaqim v. Coombe, 366 F.3d 102 (2d Cir. 2004).
Neither has litigation under state constitutional principles proven to be successful. The New Hampshire Supreme Court recently bent over backwards to avoid nullifying a felon disenfranchisement statute in Fischer v. Governor, 749 A.2d 321 (2000). The plaintiffs had an excellent argument because article 11 of the New Hampshire Constitution grants voting rights to all inhabitants eighteen years old and over, excepting only persons convicted of three enumerated offenses: treason, bribery, and willful violation of state or federal election laws. The plaintiffs asserted that a law disenfranchising all felons swept far beyond the permissible constitutional exceptions. But the court concluded that “while the conviction provision inserted into Article 11 in 1912 prohibited the legislature from extending the franchise to those convicted of its three enumerated offenses, it did not undermine the legislature’s authority . . . to disenfranchise those convicted of other crimes, whether or not they were incarcerated.” Id. at 326. This decision reflects the general spirit of state constitutional decisions.
When we turn from litigation to legislation, the picture is much improved, but progress remains slow and unsteady. An April 2003 compilation of changes to state laws shows that the 1990s produced many restrictive changes: “Four states disenfranchised federal offenders and Colorado additionally disenfranchised parolees. Utah passed a law for the first time disenfranchising state prison inmates, and Pennsylvania implemented a five-year waiting period before released inmates or parolees would be enfranchised.” Christopher Uggen & Jeff Manza, Impact of Recent Changes in Felon Voting Rights in Five States, www.sentencingproject.org/pubs_05.cfm.
Recently, however, several states have liberalized their laws. Texas eliminated its two-year waiting period, thereby restoring voting rights upon completion of sentence. Delaware and Maryland restored voting rights to ex-offenders after a five-year and three-year wait, respectively. Pennsylvania ended its five-year wait. Connecticut gave probationers the vote. New Mexico stopped disenfranchising ex-offenders altogether. Yet Massachusetts voters amended their state constitution in 2000 to disenfranchise all felons currently in prison. In short, a see-saw struggle exists that still leaves millions without the vote.
A right-to-vote constitutional amendment could enfranchise all people who have been convicted of felonies and stripped of their voting rights or the subgroup of ex-offenders in eight states who have successfully served their time but still remain disenfranchised. The former approach would mark a sharp break from policies in forty-eight states and the District of Columbia that block inmates from voting, and it would present the public with a dramatic democratic argument. The latter option would nationalize the public policy of forty-plus states that now automatically or gradually restore the vote to felons who have completed their sentences. This commonsense proposal likely would pass, as a July 2002 Harris Interactive Poll found that 80 percent of Americans believe that ex-felons who have completed their sentences should get back their right to vote. The National Commission on Federal Election Reform, chaired by former Presidents Jimmy Carter and Gerald Ford, also recommended such a step in 2001.
Catching Up to the World—And Our Own Best Ideals
Our cherished civic beliefs about voting rights are not yet embodied in an affirmative constitutional right. In the global context, this departure of American constitutionalism from the U.N. Declaration of Human Rights and the International Covenant on Civil and Political Rights is plainly unacceptable. Today, our political Constitution looks antiquated in the face of modern universal suffrage principles all over the world.
We are the only nation on Earth that disenfranchises the people of its capital city. Our felon disenfranchisement policies are backward compared to those of other advanced democracies. Even the new Iraqi Constitution establishes a universal right to vote and proportional representation voting for the national legislature, two critical features of modern democracy that our Constitution lacks. Our election systems are decentralized and tattered, vulnerable to manipulation, and our electoral practices disfavor real electoral competition among parties. Americans were astonished in 2000 to read the Supreme Court’s pronouncement that they had no constitutional right to vote for president, but we should not have been. The evidence is all around us.
Rep. Jesse Jackson Jr., along with more than fifty other representatives, has introduced a constitutional amendment guaranteeing the right to vote. It is the next step in our long struggle for inclusive democracy against structures of political domination and exclusion. Many of the amendments added since the Bill of Rights have been suffrage-expanding and democracy-deepening amendments. But they still have an ad hoc and improvisational flavor—and a cabined effect. We must exhibit the political vision to inscribe in the Constitution our right to vote and to get our votes counted.
Jamin Raskin is a professor of constitutional law at American University and director of its program on Law and Government.