When President Obama was a constitutional law professor at the University of Chicago, he used to begin each of his classes by sharing a startling fact: There is no federal right to vote explicitly granted in our Constitution. Instead, Americans have an implied right to vote based on a few amendments to our founding document. For instance, we have amendments that ban discrimination at the voting booth on the basis of race (Fifteenth), sex (Nineteenth), and age (Twenty-Sixth), but nowhere in our Constitution is the right to vote affirmatively granted.
There is no federal right to vote explicitly granted in our Constitution. Instead, Americans have an implied right to vote based on a few amendments to our founding document.
One might think it's not a big deal that it's implied rather than explicitly stated; after all, members of media, politicians, teachers, etc., all proclaim the importance of exercising one’s “right to vote" and it seems that—implicit or explicit—everyone agrees that American citizens have a right to vote. But the reality is that this shortcoming in our Constitution has some very real implications when it comes to how our elections are run, and who can vote on Election Day.
As voting rights are highly politicized and vulnerable to new laws designed to make it harder to vote, our individual right to vote—or lack thereof—looms larger than ever. Even as a rising American electorate gains momentum, new regressive laws, rulings, and maneuvers are threatening voting rights without facing the strict scrutiny that would come with an affirmative right to vote in the Constitution. While it is true that most states have a right to vote in their state constitutions, these state-level protections have proven weak without clear federal protections to back them up.
In our current backward way of doing things, the burden of proof is often placed on the voter to show that they've been wrongly barred from participation. But an explicit right to vote would put the burden of proof on the government to ensure that no eligible voter is kept from participating in democracy. While it may sound like pretentious legalese, it's a change that would make a key difference in the eyes of the law.
Our lack of a federal right to vote has also created a disjointed patchwork of voting laws and practices that vary widely across the nation, creating a voting infrastructure that is separate and unequal by nature. Voter identification and registration requirements, as well as the machines that voters use, vary widely between states. Nearly every state—and most counties—design their own ballots and have complete authority over voting policies and procedures. With more than 10,000 jurisdictions, voters and potential voters are much more likely to cast a counted vote in some areas of the country than others, simply based on the difference in standards for each election.
Ultimately, enshrining an explicit right to vote in the Constitution would guarantee the voting rights of every citizen of voting age, ensure that every vote is counted correctly, and defend against attempts to disenfranchise eligible voters.
In addition, since voting is regulated by the states, there is little the national government can do if voters are intimidated or harassed at the polling booth. With the U.S. Supreme Court's 2013 decision to strike down section 4 of the Voting Rights Act, and Congress' unwillingness to restore key components of the Act, a constitutional right to vote is sorely needed to enforce voting rights.
While amending the Constitution to include an affirmative right to vote is no small task, work to do so has already begun. Representatives Keith Ellison and Mark Pocan of the U.S. House have introduced House Joint Resolution 25, a bill to establish a right to vote. The bill has 40 co-sponsors, and a growing group of organizations and academics are working in support of its goal.
Ultimately, enshrining an explicit right to vote in the Constitution would guarantee the voting rights of every citizen of voting age, ensure that every vote is counted correctly, and defend against attempts to disenfranchise eligible voters. It would empower Congress to enact minimum electoral standards to guarantee a higher degree of legitimacy, inclusivity, and consistency across the nation, and give our courts the authority to keep politicians in check when they try to game the vote for partisan reasons.
