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GPSolo Magazine

GPSolo September/October 2024: Election Law

Is There a Constitutional Right to Vote?

Katherine Mary Culliton-Gonzalez

Summary

  • We are at an inflection point in our ability to provide equal access to the ballot.
  • There are more than 10,000 state and local jurisdictions running elections in the United States. They now have increasing latitude to restrict access.
  • Since 2000, the Supreme Court has issued rulings indicating that it does not consider voting to be a fundamental right.
  • Some activists propose amending the Constitution to include an affirmative right to vote. Others prioritize the passage of the John R. Lewis Voting Rights Advancement Act.
Is There a Constitutional Right to Vote?
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This issue of GPSolo magazine covers election law in 2024. As a voting rights lawyer asked to write the lead article, I must report that the situation has worsened over the last 20 years. American democracy is declining due to a measurable amount of “strategic manipulation of elections” and backsliding that has put us behind 49 other countries around the world and at greater risk of authoritarianism.

This article examines whether the U.S. Constitution includes an affirmative right to vote. It does not. The lack of a constitutional right to vote exacerbates many issues challenging American democracy in 2024. Some academics propose amending the Constitution to include an affirmative right to vote while adding new voter ID requirements. This will not resolve the systemic problems described below. Instead, we should focus on protecting the vote for the next generation and passing the John R. Lewis Voting Rights Advancement Act.

We are at an inflection point in our ability to provide equal access to the ballot. Current problems rocking the foundation of American democracy include Supreme Court decisions eviscerating the Voting Rights Act, interference with the peaceful transfer of power, false allegations of elections being stolen, bias-driven political rhetoric, state laws restricting voter access, and a lack of proportional representation along with constant litigation and constantly changing voting rules. There are more than 10,000 state and local jurisdictions running elections in the United States, and, although some do well, they now have increasing latitude to restrict access. These problems are rooted in resistance to having an inclusive, multiracial democracy.

Modern dilution of voting rights has occurred in tandem with the changing demographics of our nation and the increasing potential political power of communities of color. This is untenable in a democracy in which 52 percent of the next generation are people of color (American children under 18 are now 26 percent Latino, 14 percent, Black, 6 percent Asian, and 6 percent multiracial).

The entire U.S. population (of all ages) will no longer be majority White in 2045, and the eligible voting population will be majority people of color by 2060 or sooner. Our democracy needs to catch up and stop resisting the inclusion of the coming majority.

Although this is a current problem, it is also an old one—and a manifestation of a foundation not built on solid ground. The founders did not envision a democracy that included anyone except white men. But since then, through many battles led by great civil rights leaders, we have expanded what the late Justice Ruth Bader Ginsburg called the “theory of the [U.S.] Constitution” (Evenwel v. Abbott, 578 U.S. 54, 67–68 (2016)), to represent all people, and the right to vote now includes all citizens over 18, regardless of race or gender. Your pocket Constitution will confirm these important amendments, as well as the lack of a specific, affirmative constitutional right to vote. The 14th and 15th Amendments include specific rights to freedom from discrimination in voting, making it clear that racial discrimination in voting is subject to strict scrutiny. Amending the Constitution to provide a similarly specific right to vote would make any infringements on this fundamental right subject to strict scrutiny.

The Supreme Court and the Fundamental Right to Vote

Despite the lack of an affirmative right to vote, the Supreme Court has historically ruled that the right to vote is fundamental, as it is “preservative of all other rights.” In 1886, after noting the lack of a specified constitutional right to vote, the Court ruled that:

Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless [the right to vote] it is regarded as a fundamental political right, because [it is] preservative of all rights.

Yick Wo v. Hopkins, 118 U.S. 356, 370 (ending discrimination against persons of Chinese origin in California) (emphasis added).

In 1964, in Reynolds v. Sims, 377 U.S. 533, 565 (1964), the fundamental nature of the right to vote was used to end a racially discriminatory redistricting scheme in Alabama, but the decision was not based on race. Instead, the Court held that under the Equal Protection clause of the 14th Amendment, legislative districts must provide voters with equal representation “regardless of where they live.” Recalling that only fundamental rights are subject to strict scrutiny, we can see that Reynolds applied that standard:

Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.

Id. (emphasis added).

The late John Lewis and other civil rights heroes risked their lives to support the Voting Rights Act of 1965, which was enacted to better protect against racial discrimination in voting. During the Civil Rights Era, the Supreme Court also considered the right to vote to be fundamental and subject to strict scrutiny. Using this reasoning, in 1966, the Warren Court ended poll taxes based on income disparities alone (Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 (1966) (quoting Reynolds)). This distinction is critical because, although racial discrimination in voting continues to be widespread, it is very difficult to prove. Reynolds and Harper show that location and income disparities also counted until the Court under Chief Justice John Roberts began to interpret the right to vote restrictively.

Additionally, in several earlier cases, the Court opined that there is no affirmative constitutional right to vote. Professor Richard L. Hasen’s new book, A Real Right to Vote (2024), summarizes this history and rightly calls for a constitutional amendment. Prior to the 19th Amendment in 1919, the lack of a specific constitutional right to vote enabled the all-male Court to permit states to exclude women from voting (Minor v. Happerset, 88 U.S. 162 (1875)). Further, the lack of a specific constitutional right to vote left a gap that the all-white Supreme Court exploited when it failed to overturn Jim Crow laws (Giles v. Harris, 189 U.S. 475 (1903)).

Voting rights advocates such as Penda Hair and the late Harvard Law Professor Lani Guinier have long argued that a specific constitutional right to vote would help expand equal access to the ballot and protect against discrimination. Although Hasen once took issue with this proposition, he now agrees with it; however, he now proposes adding voter ID requirements to assuage conservatives’ baseless allegations about voter fraud. This is entirely political, as federal law already requires some form of ID to register to vote. Further, the experiences of communities of color show that additional voter ID requirements would have discriminatory impacts and dilute voting rights.

Bush v. Gore and the Erosion of the Fundamental Right to Vote

The 2000 election recount in Florida was a shock at the time. On the positive side, despite disagreement with the results of the election, there was a smooth transfer of power when candidate Al Gore conceded. But, like many, I was shocked to read the Supreme Court’s opinion in Bush v. Gore, 531 U.S. 98 (2000). Buried among the twisted reasoning about Equal Protection and the fact that some Florida counties counted ballots differently than others, the Court pointed out that there was no specific constitutional right to vote. Therefore, despite the holding in Reynolds, the argument that counting votes equally should not depend on where you live was no longer a good argument in federal court (id. at 104).

Bush v. Gore certainly put voting rights on my radar, but the people I serve made me a voting rights lawyer. I was drafted to monitor elections for the Latino community in 2004 and have done so in every presidential election since then. I served in the U.S. Department of Justice’s Voting Section from 2007 to 2012 and have helped lead the voting rights work of the Hispanic National Bar Association (HNBA) since 2012. My cases in Florida, Georgia, Massachusetts, New Jersey, New York, Ohio, Texas, and Wisconsin have addressed many types of discrimination against Black and Latino voters.

As history marched forward, our nation elected our first Black president, Barack Obama, in 2008. With every major victory in civil rights comes a backlash, and in 2008, in the first modern voter ID case, the Supreme Court “allowed states to pass more onerous voting rights rules, such as strict voter identification laws, without proof that such laws serve any interests in preventing fraud” (Richard L. Hasen, A Real Right to Vote 26 (2024), discussing Crawford v. Marion County, 533 U.S. 181 (2008)).

Voter fraud is infinitesimal—allegations comprise 0.00006 percent of all votes cast—so fraud-based arguments to justify limitations on access to the ballot should not even pass low levels of scrutiny. But also, since Crawford, the underlying costs of voter ID laws are no longer subject to strict scrutiny. These include the cost of securing a birth certificate, which is especially difficult for Black citizens. Copies of naturalization certificates currently cost more than $500, disparately impacting Asian and Latino American citizens who live in states with the most egregious voting laws.

The arguments about income disparities that served to strike down poll taxes in 1966 are no longer viable today, in part because, since 2000, the Roberts Court does not consider voting to be a fundamental right. An affirmative, constitutional right to vote would be helpful to restore strict scrutiny of state measures such as strict voter ID, cuts to early voting, limiting mail-in voting and drop-off locations, and allowing baseless challenges.

The Threat of Originalism

The rising threat of “originalism” also argues for a federal constitutional amendment. On the other hand, not all fundamental rights are found in the exact text of the Constitution. There is no specific constitutional right to privacy, and the retrogressive “originalist” movement leveraged this to eviscerate reproductive rights (Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)). There is also no specific constitutional right to marry, so the same originalist argument could potentially undo Loving v. Virginia, 388 U.S. 1 (1967), which ended prohibitions against interracial marriage, and Obergefell v. Hodges, 576 U.S. 644 (2015), guaranteeing the fundamental right to marriage to same-sex couples.

Although there is no specific constitutional right to education, in Brown v. Board of Education, 347 U.S. 483 (1954), and Plyler v. Doe, 457 U.S. 202 (1982), the Court ruled that education was so important to every individual that discrimination in public education did not pass strict scrutiny. It is far from certain that a specific constitutional right to education would change the Court’s more recent rulings.

Is Equal Access to the Ballot or a Constitutional Amendment More Important?

There is a movement for a constitutional right to vote building from the states, as communities have had success in litigation under state constitutional rights to vote. I was thrilled to play a small part in the team that between 2012 and 2014 successfully litigated against Pennsylvania’s strict voter ID law based on the state constitutional right to vote. I will never forget testimony from the Commonwealth stating their position against homeless people having the right to vote.

Recent scholarship by Professors Jessica Bulman-Pozen and Miriam Seifter shows that “every state constitution confers the right to vote.” Leveraging and expanding these state rights to vote may present a powerful way to build a multiracial democracy and lead to an expansive federal constitutional amendment without voter ID as a compromise.

At the federal level, the U.S. Constitution provides specific rights to freedom from discrimination in voting, as does the Voting Rights Act of 1965 (VRA). These fundamental rights are subject to strict scrutiny—but the Roberts Court has limited them anyway. In 2013, in Shelby County v. Holder, 570 U.S. 529, the majority’s version of strict scrutiny ignored the record. Relying on pre-Reconstruction states’ rights cases, the Court eviscerated the most effective protections of the VRA by opining that discrimination in voting was a relic of the past. Nothing could be further from the truth.

In 2018, the bipartisan U.S. Commission on Civil Rights published a comprehensive report finding that discriminatory state voting laws had increased four-fold in the wake of the Shelby decision. In 2023, the Brennan Center for Justice at New York University School of Law reported that states enacted more than 100 restrictive voting laws since Shelby, which correlated with decreasing turnout among Black and Latino voters. These extremely high levels of discriminatory impacts can only be stopped by legislation to restore the VRA, which was first introduced in 2015. A Senate filibuster blocked its passage in 2022. In the meantime, despite increasing litigation, even intentionally discriminatory changes have stayed in place during elections.

The most urgent reform now is the John R. Lewis Voting Rights Advancement Act of 2024. His legacy Act would require review of state or local changes in voting procedures that are likely to be discriminatory before they can be implemented during elections.

Leaders of the Student Nonviolent Coordinating Committee argue that “we still need the right to vote, a generation later,” and support a constitutional amendment to expand equal access and include important concepts of justice. The situation today calls for strong protection against discrimination in voting and fixes for the worst Supreme Court decisions that have diluted voting rights. Considering “originalism,” a provision against retrogression is also necessary. This is already part of the John Lewis Act, and it should not be left out of proposals to amend the Constitution to add a right to vote.

What Lawyers Can Do

ABA President Mary Smith created the nonpartisan ABA Task Force on American Democracy. The HNBA followed suit, and I am honored to chair our committee of outstanding Latino voting rights lawyers. We should all support an affirmative constitutional right to vote that ensures equal access for the next generation while immediately focusing on the great need to pass the John Lewis Act. Please also volunteer to protect citizens’ right to vote on Election Day.

Katherine Culliton-González receiving the Unsung Heroes of Democracy Award from ABA President Mary Smith on August 2, 2024.

Courtesy of American Bar Association

Katherine Culliton-González receiving the Unsung Heroes of Democracy Award from ABA President Mary Smith on August 2, 2024.

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