How does the Constitution Protect the Right to Vote?
Where, in the US Constitution, is the right to vote?
Most national constitutions expressly guarantee to their citizens the right to vote in national elections. The US constitution is an outlier. Although it mentions elections and elected officials, it does not indicate who has the right to elect them. And, uniquely, it leaves the management of federal elections to the states. This reflects the founders’ ambivalence toward democracy and their fear of federal government takeover.
In the late 19th century, the Supreme Court hinted that voting “is a fundamental political right, because preservative of all rights.” Yick Wo v Hopkins (1886). But the Court failed to follow through. It has never held that the right to vote is constitutionally protected as a matter of human dignity. Nor has it even held that the right to vote is essential to the “concept of ordered liberty” or “deeply rooted” in the history and traditions of this nation – the traditional markers of a protected liberty right under the Due Process Clauses of the 5th and 14th amendments.
The right to vote is assumed
By the end of the Civil War, the Constitution was assuming that citizens have the right to vote because several amendments of the 19th and 20th centuries refer to it.
The 15th Amendment (1870), for instance, says “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” This language is followed in the 19th amendment (prohibiting discrimination on the basis of sex in 1920), the 24th amendment (prohibiting discrimination on the basis of inability to pay a poll tax – a favorite way for whites to exclude poor people and non-whites from voting, 1964), and the 26th amendment (prohibiting discrimination on the basis of age for those voters above the age of 18, 1971).[1]
Notice that in all these cases, the Constitution refers to “the right of citizens to vote” but nowhere does it actually grant that right to citizens.
The right to vote as a matter of equal dignity
The Supreme Court has never clarified a constitutionally protected right to vote. It has not recognized that the right to vote springs from the inherent dignity of every person, nor that voting is the signal of individual liberty, nor that democracy is the guarantor of freedom.
But it has (somewhat confusingly) found that discrimination in voting rights is presumptively unconstitutional. In other words, you don’t have a constitutional right to vote, but if you are allowed to vote, you can’t be discriminated against.
The dignity basis of this idea is not found in each person’s inherent worth, but in each person’s inherent equality. It protects the aspect of dignity that respects every person’s equal dignity and that honors the affirmation in the Universal Declaration of Human Rights that “All human beings are born equal in dignity and rights.” The right to equal voting rights protects against the particular aspect of indignity that is the peculiar province of discrimination and of its meaner cousins exclusion and humiliation.
Rooting the right to vote in the inherent worth of every person would make it clear that voting rights can not be toyed with. It would confirm that it need not be written into the constitution because it derives not from the text but from the fact of humanity, from the human right to express oneself, to control our lives, to design our collective fate in community with others, and to be the architects or the authors of our life projects and the paths our collective life follow. If we are not permitted to vote, our values and our identities are subsumed. We are treated not as ends in and of ourselves, but as means to another person’s ends. If our votes are not counted fairly, our voices are suppressed.
As one court has eloquently put it:
In a constitutional democracy, a vote is a symbol of political dignity and freedom of a citizen. It embodies freedom of choice, expression, equality and the license to participate in the political life of a nation and the right to establish self-government. Life of a citizen in a representative democracy demands a life of equal participation in the establishment of a democratic state.[2]
[1] Other constitutional amendments have expanded voting rights not by prohibiting discrimination but by expanding what people can vote for: the 17th Amendment established that Senators would be popularly elected, rather than appointed by their state legislatures as they had been until 1913. The 23rd Amendment (1961) allows residents of the District of Columbia to vote for President.
[2] Arshad Mehmood v. The Commissioner of Elections in Pakistan (High Court of Lahore, 2013).
