Is a Constitutional Right to Vote Attainable?

If we really want our voting rights protected, say advocates, we need the right enshrined into the Constitution

By Brentin Mock Jul 05, 2013

After the devastating decision from the U.S. Supreme Court to evict a cornerstone provision from the Voting Rights Act, Attorney General Eric Holder said, "The Department of Justice will continue to carefully monitor jurisdictions around the country for voting changes that may hamper voting rights. Let me be very clear:  we will not hesitate to take swift enforcement action–using every legal tool that remains available to us–against any jurisdiction that seeks to take advantage of the Supreme Court’s ruling by hindering eligible citizens’ full and free exercise of the franchise."

This was a doubling down on what Holder said in his address to the National Action Network a year ago, when he said, "This Department of Justice will oppose any effort–any effort–to disenfranchise American citizens."

The weapons available to DOJ for protection efforts are quite limited now under the Supreme Court’s ruling. The prophylactic effect that gave Justice the power to review an election change for possible discriminatory effects in jurisdictions with the worst problems are now gone. Now the DOJ and voters can in most cases only seek legal redress for discrimination after it has already happened, and then hope for the best in terms of remedy. 

What many have been calling for, even before the Supreme Court’s decision, is an explicit guaranteed right to vote through amendment of the U.S. Constitution. 

"Most Americans are surprised to learn that there is no provision in the Constitution or federal law that affirmatively guarantees all citizens the freedom to vote," said executive director Rashad Robinson in a statement after the Shelby vs. Holder decision. "We need a constitutional amendment that guarantees the freedom to vote for every citizen regardless of race and that protects against attempts to disenfranchise voters regardless of where they live."

A new amendment finally codifying an explicit right to vote for all Americans would force federal courts to use a "strict scrutiny" standard when reviewing new voting law challenges, returning the burden back to states and jurisdictions to prove that new election changes won’t lead to disenfranchisement. It would guarantee that every citizen who wanted to vote could access their ballot free of any burdens or restrictions. 

Also, it would "send a signal to state legislatures and courts that any barriers to our democracy must be carefully devised so that they don’t disenfranchise people," as Advancement Project co-director Judith Browne-Dianis told Jamelle Bouie at American Prospect earlier this year. 

There have been some recent efforts to do this–former Rep. Jesse Jackson, Jr. was ignored when he proposed this in 2005. Right now, Congress has a soft ask from the U.S. Supreme Court to create a new coverage formula that would reactivate Section Five of the Voting Rights Act.

"Congress can draft another formula if it chooses to do so, but there’s no legal requirement" from the Supreme Court, explained Justin Levitt, election law professor at Loyola Law University. "Despite the overwhelming moral mandate, there was no legal mandate to pass Section Five in the first place, so there’s no legal mandate to come back with a formula now."  

There’s actually no legal mandate for Congress to legislate on any given matter, no matter how important. "Congress has power, but it need not exercise it if it wishes not to," said Levitt.

Wisconsin Rep. George Sensenbrenner, who was instrumental in Congress’ reauthorization of the Act in 2006, has vowed to have Congress build a new one. Sen. Patrick Leahy of Vermont said he will hold hearings this month for a new Voting Rights Act, and House Majority Leader Eric Cantor has made statements requesting Congress to act as well. 

But many have expressed doubt that Congress has the political will to do this, especially in today’s polarized, tea party-ized climate. In 2007, then Rep. Artur Davis and then-Sen. Barack Obama proposed legislation that would have added additional voting protections, but those went nowhere. (Davis has since changed his tone dramatically, and come out in favor of voter ID laws that experts say will lead to disenfranchisement of millions of people of color, transgender citizens, women and college students.) 

Achieving a new constitutional amendment is even more difficult than getting new legislation. Though it wouldn’t need President Obama’s signature to become law, it needs approving votes from two-thirds of Congress and also ratification from three-fourths of all states. That ratification might be tough given that many of the states that opposed the Voting Rights Act in the Shelby case did so on grounds that it was too much of a federal intrusion into states’ rights. 

The Advancement Project worked with grassroots groups in Florida to create new state legislation that would implant a guaranteed right to vote in Florida’s state laws. The state passed legislation that fixed some of Florida’s notorious voting problems from last year and stopped far short of guaranteeing the right to vote. 

"More than 200,000 Florida citizens walked away from the marathon voting lines of 2012 because they were unable to wait for hours, and they were ultimately denied their fundamental right to vote," said Gihan Perera, executive director of Florida New Majority. "This is a crisis that calls for more than just tinkering around the edges. It requires bold action."

The same is required for the nation.