Position Paper Presented
Center For Voting & Democracy
“Claim Democracy Conference”
By Congressman Jesse L. Jackson, Jr.
Washington College of Law
Saturday, November 22, 2003
Most Americans believe that the “legal right to vote” in our democracy is explicit (not just implicit) in our Constitution and laws. However, our Constitution only provides for non-discrimination in voting on the basis of race, sex, and age in the 15th, 19th and 26th Amendments respectively.
The U.S. Constitution contains no explicit affirmative individual right to vote!
Even though the “vote of the people” is perceived as supreme in our democracy - because voting rights are protective of all other rights - the Supreme Court in Bush v. Gore constantly reminded lawyers that there is no explicit or fundamental right to suffrage in the Constitution - “the individual citizen has no federal constitutional right to vote for electors for the President of the United States.” (Bush v. Gore, 531 U.S. 98, 104 (2000)
Chief Justice William Rehnquist and Associate Justice Antonin Scalia besieged Gore’s lawyer with inquiries premised on the assumption that there is no constitutional right of suffrage in the election of a president, and state legislatures have the legal power to choose presidential electors without recourse to a popular vote. “In the eyes of the [Supreme] Court, democracy is rooted not in the right of the American people to vote and govern but in a set of state-based institutional arrangements for selecting leaders.” (Overruling Democracy - The Supreme Court vs. The American People, By Jamin B. Raskin, p. 7)
If candidate George Bush had lost in the Supreme Court in 2000, Florida’s Republican-controlled legislature was prepared to ignore the six million popular votes cast in Florida. They were determined to elect, select, choose, and hand pick their own “Bush presidential electors” and send them to Congress for certification if necessary. Thus, even if all votes had been counted and Al Gore had won Florida’s popular vote, and his electors had been sent to Congress, under our current Constitution the Florida legislature could have sent their slate of Bush electors to Congress and it would have been perfectly legal - and a “strict constructionist” or necessary constitutional interpretation - for Congress to have recognized the Bush electors.
Only a Voting Rights Amendment can fix these flaws in our Constitution.
The 10th Amendment to the Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the State, are reserved to the States respectively, or to the people.” Since the word “vote” appears in the Constitution only with respect to non-discrimination, the so-called right to vote is a “state right.” Only a constitutional amendment would give every American an individual affirmative citizenship right to vote.
Without the constitutional right to vote, Congress can pass voter legislation - and I support progressive electoral reform legislation - but it leaves the “states’ rights” system in place. Currently, Congress mostly uses financial and other incentives to entice the states to cooperate and comply with the law. It’s one reason there have been so many problems with the recently passed Help America Vote Act, and why many states still have not fully complied with the law.
Our “states’ rights” voting system is structured to be “separate and unequal.” As we saw in the 2000 election, there are 50 states, 3,067 counties, tens of thousands of cities, and many different machines and methods of voting - all “separate and unequal.”
There’s ONLY ONE WAY to legally guarantee “an equal right to vote” to every individual American and that is to add a Voting Rights Amendment to the Constitution!
The lack of basic political rights for all Americans was made even clearer in Alexander v. Mineta, a case to gain political representation for the disenfranchised citizens in our nation’s capitol, the District of Columbia. Ignoring the democratic ideal of voting, the court said, “The Equal Protection Clause does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote” (Alexander v. Daley, 90 F. Supp. 2d, 35, 66, emphasis added) “To be qualified, you must belong to a `state’ within the meaning of Article I and the Seventeenth Amendment and must be granted the right to vote by the state.” (Overruling Democracy - The Supreme Court vs. The American People, By Jamin B. Raskin, p. 36)
I believe that voting is not only a democratic right, it is a human right. That human right is not in our Constitution! That’s why I have proposed legislation to add a voting rights amendment to the U.S. Constitution based on the INDIVIDUAL RIGHT of all Americans to vote. It was introduced in the U.S. House as House Joint Resolution 28. It reads as follows:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:
SECTION 1. All citizens of the United States, who are eighteen years of age or older, shall have the right to vote in any public election held in the jurisdiction in which the citizen resides. The right to vote shall not be denied or abridged by the United States, any State, or any other public or private person or entity, except that the United States or any State may establish regulations narrowly tailored to produce efficient and honest elections.
SECTION 2. Each State shall administer public elections in the State in accordance with election performance standards established by the Congress. The Congress shall reconsider such election performance standards at least once every four years to determine if higher standards should be established to reflect improvements in methods and practices regarding the administration of elections.
SECTION 3. Each State shall provide any eligible voter the opportunity to register and vote on the day of any public election.
SECTION 4. Each State and the District constituting the seat of Government of the United States shall establish and abide by rules for appointing its respective number of Electors. Such rules shall provide for the appointment of Electors on the day designated by the Congress for holding an election for President and Vice President and shall ensure that each Elector votes for the candidate for President and Vice President who received a majority of the popular vote in the State or District.
SECTION 5. The Congress shall have power to enforce this article by appropriate legislation.