LONG WAY HOME:
RECLAIMING DEMOCRACY
A
CONSTITUTIONAL AMENDMENT:
THE
RIGHT TO VOTE
“The
individual citizen has no federal constitutional right to vote for electors for
the President of the United States.”
Justice
Antonin Scalia for the Majority, Bush V. Gore 2000
It came as a
surprise to many informed citizens when the Supreme Court ruled in Bush V. Gore
that Americans did not possess a constitutional right to vote for the president
of the United States. It seems the
constitution makes reference to the right to vote but not specifically in
regard to federal elections.
Ratified in
1870, the fifteenth amendment prohibits denying the right to vote on the basis
of “race, color or previous condition of servitude.” In 1913 the seventeenth amendment required the election of
United States Senators. Prior to
that amendment senators could be chosen by a variety of means. In 1920 women were granted the right to
vote or rather the denial of the right to vote on the basis of sex was
prohibited. In 1961 residents of
the District of Columbia were granted the right to vote in presidential
elections – or rather the right to vote for members of the Electoral
College. In 1964 the poll tax was
prohibited. In 1971 the age
requirement for the right to vote was lowered from 21 to 18.
In the year
2000, with the Electoral College hanging by the loose chads of Florida in the
presidential election, the Supreme Court reviewed all constitutional references
and decided that there was in fact no right to vote in national elections. A thin majority of justices came to
this conclusion because it facilitated their purely partisan decision to award
the election to fellow Republican George W. Bush. They seemed to recognize how specious their argument was
when they also pleaded with future justices not to give their decision the
weight of precedence.
Why was it
important that the Supreme Court deny the right to vote? Because, if the citizens of Florida
possessed a right to vote, then the court could not deny that right by
pre-empting a full recount in Florida.
The court could not end the recount process and choose the next
president by a five to four majority.
That is exactly what the court did.
We are left
with a hole in the constitution the size of democracy itself. If we follow the court’s reasoning, a
theoretical right to vote cannot be denied on the basis of age above 18, race,
color, sex or the ability to pay a poll tax but it can be denied for any other
reason. In the case of Florida the
right to vote could be denied for expediency or partisanship.
Does anyone
really believe that the court’s decision to cut off the recount would have been
the same if it awarded Albert Gore the presidency? I don’t think so.
As to the
court’s plea to negate the decision’s precedent value, it is about as useful as
a “theoretical” right to vote. The
Supreme Court delivers the law of land.
One of the few judicial powers it does not possess is the power to
negate precedence.
In the wake of
Bush V. Gore the nation’s leaders should have rallied to reaffirm the
institutions of democracy. Instead
they praised the wisdom of the founders in creating such anachronisms as the
Electoral College. Consequently, in
the year 2016 we awarded a candidate with 3 million votes less than his
opponent the White House. With all
due respect, this is not wisdom; it is idiocy. That we have allowed a minority of voters to elect the
president twice in less than two decades is a disgrace to all we hold
dear. Moreover, those two mistaken
presidencies will likely be recorded in history as supreme catastrophes.
If we wish to
restore democracy in America it is imperative that we affirm the right to
vote. We can then proceed to the
principle of one person, one vote or equivalent value of every vote. That will be a hotly contested
issue.
Who can stand
up in America and proclaim that an otherwise qualified individual does not
possess the right to vote? There
are those who will advance contorted arguments of every flavor and description
to justify gerrymandering, the Electoral College, special identification
procedures and even unequal access to voting across districts but there are
very few so bold as to proclaim that every law-abiding individual of age should
not possess the right to vote.
Only the
Supreme Court has done so and yet they did so in such a sly and devious manner
that few Americans have any idea that it is the law of the land. We do not have a right to vote. When it matters most – in the election
of a president – we do not.
Antonin Scalia and his colleagues on the Supreme Court may like it that
way. Common citizens should
not. They have nullified the power
of the people and they will continue to do so until we stop them.
We must
rectify this affront to the American republic. We must advance a constitutional amendment so simple and
pure that it defies anyone the impudence of denying it. I propose the following:
Section 1: All
citizens aged 18 or older possess the right to vote in appropriate elections of
government officials and this right shall not be denied or abridged by the
United States or any state or local authority.
Section 2:
Congress shall have the power to enforce this article by appropriate
legislation.
Let the
arguments begin. Those who stand in favor can be counted on as defenders of the
democratic form of government.
Those stand against are the enemies of democracy. While it seems as simple and obvious as
gravity, the opposition will hire the finest and most expensive law firms to
prevent its passage at all cost – just as they did the equal rights
amendment.
The first
argument will likely concern those who have lost the right to vote because they
were convicted of serious crimes and are either behind bars or serving periods
of probation or parole.
Certainly we
could exempt the prisoner and parolee population but that would violate the
principle of universal suffrage.
If the right to vote can be taken away it is no longer a right; it is a
privilege. We do not strip the
imprisoned of the right to speak.
We do not revoke the right to worship as one pleases. We do not take away the right to
medical care – a right that is not yet recognized in America. Why then should we take away the right
to vote?
Of course we
do deny prisoners the freedom to live in open society and prisoners and
parolees the right to possess firearms in the greater interest of society at
large and prison officials in particular.
Is there an equivalent interest with the right to vote? Despite the fact that we imprison more
of our citizens than any other civilized nation on earth, those behind bars
represent only .007 percent of the population. There is no evidence to suggest that this small number would
have a significant effect on elections.
To the extent that it could have an effect, there is no evidence to
suggest that it would be detrimental to society. While there are more individuals on parole than in prison,
they have paid their debt and are entitled to their rights.
The enemies of
democracy will make this argument not because they think it’s important or
because they think it is right.
The fact is they don’t care whether or not prisoners and parolees obtain
the right to vote. Most of them
will not vote anyway. They will
make the argument because they believe it will provoke a knee-jerk reaction in
good, law-abiding citizens. They
make the argument because it will empower them to go on denying the right to
vote to people of color and people who are not likely to vote in their
interest.
What is their
interest? They represent the moneyed
class, plain and simple. They are
the one-percent that the anti Wall Street movement and Bernie Sanders drew
attention to in their respective movements. They are the privileged individuals and corporations that
are accustomed to controlling the strings of our government.
The simple
right to vote will threaten their control. The simple right to vote will empower the people to their
detriment.
Those who
defraud elections to their advantage have long exploited the parolee
population. While the recent trend
is for voting rights to be restored upon completion of sentence, in the year
2000 Florida used its parolee list to disenfranchise tens of thousands of black
voters. That is the dirty little
secret behind the election of George W. Bush. Federal courts, including the Supreme Court, have long
yielded the administration of elections to the states. That would end with a constitutional
recognition of the right to vote.
Regardless of
how you may feel about prisoners and/or parolees voting, it is not a reason to
deny the fundamental right of all citizens to vote.
What other
arguments are there against a constitutional right to vote? Let’s see. There are none – at least none that are not flagrantly
invalid or obviously tainted. You
could argue for states rights but that would conjure memories of how the
Southern states denied blacks the right to vote for over a century. No one who believes in the principles
of democracy can seriously argue that an individual right to vote should be
subject to the discretion of any given state. In a democratic government no state should deny a person’s
right to vote. Ever.
Had this
principle been in place the disenfranchisement scheme in Ohio in the 2004
election – a scheme that may well have decided the presidential election in
favor of Bush over Kerry – would have been subject to legal recourse. Moreover, it could have been challenged
in court prior to the election.
The
disenfranchisement schemes that have haunted our elections for decades are
still in place. They are being
challenged in court but too often the challenges are falling because there is
no federal recognition of the right to vote.
That must
change. A society that does not
embrace the right to vote has no right to call itself a democracy.
Jazz.
“Americans
lack the right to vote.” By Niko
Bowie. Yale News, November 16 2005.
Jack Random
is the author of the Jazzman Chronicles as well as a variety of fictional
works, including a trilogy of novels entitled Pawns to Players: The Chess Series. He is retired and living in central
California.
