Put the Right to Vote in the Constitution
Monday morning I woke up — not with Georgia — but with Selma on my mind. Selma bears witness to the bloody and murderous struggle to end discrimination in voting on the basis of race. The demonstrations there led directly to President Lyndon Baines Johnson signing the 1965 Voting Rights Act.
The 1965 Voting Rights Act was historic, designed to redress the unique history of discrimination against African Americans. But it was limited. It did not give each and every American citizen the explicit, constitutionally guaranteed federal right to vote.
The 1965 Voting Rights Act has been effective and efficient. Sections 4 and 5 were its heart and soul because they provided for a prior review that prevented racial discrimination in voting. In the recent Shelby decision, a conservative majority of the Supreme Court cut the heart (Section 4) out of the law and left its soul (Section 5) as exposed as a cadaver on a funeral director’s table. Shelby said you can keep the car but you can’t have the keys. The car looks great, but it’s not going anywhere. Now we must all join together in an effort to fix the damage done by Shelby, and revive the heart of the Voting Rights Act.
But we should also take a step back and see what we’re really facing. A text out of context is a pretext. What’s the context of America’s voting rights? The context is that we have a “states’ rights” voting system — 50 states (plus D.C.), 3,143 counties, 13,000 election jurisdictions that administer 186,000 precincts, all in “separate and unequal” local voting jurisdictions. But if the legal principle of “separate and unequal” was unacceptable for education in 1954, it’s also unacceptable for voting in 2014, since voting is the foundation of our democracy.
Most Americans assume that they have a “right” to vote — and they’re partially correct. Except for ex-felon laws in certain states, most Americans do have a state right to vote, but they don’t have a citizenship right to vote. In Alabama, they have an Alabama right to vote, but not an American right to vote. It’s because of this “states’ rights” voting system that, since 2010, 34 states have been able to pass new voting laws that are mostly designed to suppress or make it more difficult for certain Americans to vote — specifically minorities, young people, workers, poor people and the disabled. The intent of these mostly efforts driven by Republican governors and Republican-controlled legislatures is to disenfranchise Democrats (big “D”), but the effect undermines all democrats (small “d”) and our democracy.
Congressional efforts to “fix” the damage done by Shelby to the Voting Rights Act are essential. But the remedy will inevitably will leave the Voting Rights Act in a weaker state than it was before Shelby. We should not have to protect the “right to vote” piecemeal — state-by-state, county-by-county, voting district-by-voting district, year-after-year.
So I argue that even as we mobilize to end the damage done to the Voting Rights Act, we should be fighting for a constitutional amendment to guarantee the right to vote to all.
Nowhere in the U.S. Constitution is there an explicit guarantee of the right to vote. Prior to becoming president of the United States, Barack Obama, as a professor of constitutional law at the University of Chicago, began each of his constitutional law classes stunning his students with the surprising fact that a “citizenship or individual right to vote” is not in the Constitution.
The Supreme Court has ruled that the Second Amendment does guarantee the individual right to a gun. So we have the bizarre situation that in one of the world’s leading democracies, citizens have a guaranteed right to a gun, but not the right to vote.
Reps. Mark Pocan, D-Wis., and Keith Ellison, D-Minn., have introduced in Congress a constitutional amendment that would guarantee the right to vote. Its language is sensible plain and clear:
SECTION 1: Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.
SECTION 2: Congress shall have the power to enforce and implement this article by appropriate legislation.
Passing a constitutional amendment isn’t easy. It must be supported for ratification by two-thirds of the members of both the House and the Senate, and then ratified by three-fourths of the state legislatures.
No amendment can pass without a broad consensus. But guaranteeing the right to vote isn’t partisan or ideological or a special interest agenda. It is fundamental to all Americans. It is the foundation of our democracy. And it is long past due.
Jesse Jackson is the founder of Rainbow PUSH.