As might be expected, an overwhelming number of Democrats and Democratic-leaners (78 percent) saying voting is a fundamental right. Only 32 percent of Republicans say the same.
Many people may be horrified to learn that two-thirds of Republicans and Republican leaners say voting is a privilege that can be suspended — like driving, I suppose. This is the result of a party that has adopted a stance to defend a vanishing White majority against all those “other” people who want to vote. It does seem to go hand-in-hand with the GOP’s fixation with illiberal autocracy, wherein support for their leader takes priority over the fair operation of elections.
That same mentality undergirded poll taxes, literary tests and other stratagems to prevent Black Americans from voting despite the edicts of the 15th Amendment. Such shenanigans were the reason for Section 5 of the Voting Right Act, which sought to provide a check on jurisdictions that had a history of taking that “privilege” away from minorities.
While Republican and Democrats respondents were almost certainly voicing their gut-level sentiments about the centrality of voting to our system, as a constitutional matter, Democrats are on shaky ground.
Kim Wehle, a law professor for the University of Baltimore, writes for the Atlantic: “The Constitution needs major surgery, in the form of an amendment that affirmatively protects and preserves all citizens’ right to vote. Many people believe that such foundational language must already exist somewhere in the Constitution; it does not.” The 15th Amendment merely guarantees that the right to vote will not be taken away on the basis of certain protected categories. Similarly, Article IV, Section 4, of the Constitution provides that “The United States shall guarantee to every State in this Union a republican form of government,” but it does not define what “republican form of government" means.
There is a reason the Constitution did not set forth a right to vote. The National Constitution Center explains: “The Constitution took effect in early 1789 after the first federal elections. It did not include an express protection of the right to vote, and it was left to the states to determine who was eligible to vote in elections. For the most part, state legislatures generally limited voting to white males who owned land. Some states also utilized religious tests to ensure only Christian men could vote. Gradually, state legislatures began to slightly expand voting rights to non-landowning white males.”
The embrace of “states’ rights” often meant the power of the states to deny the power to vote (and other rights) to whomever they pleased, usually Black Americans and other minorities. Today’s GOP essentially still buys into that notion, treating state powers — not the voters’ ballots — as sacrosanct.
The absence of a specific constitutional right is why some progressives such as Sen. Elizabeth Warren (D-Mass.) want a constitutional amendment guaranteeing a right to vote to every U.S. citizen. At the very least, there would be a high barrier for states to block access to voting. Justice Samuel A. Alito Jr.'s made-up “guidelines” for evaluating Section 2 of the Voting Rights Act, which put a heavy thumb on the scale in favor of states making specious fraud claims, would go by the wayside. And the Republican attempts to flip voting results would be plainly unconstitutional, no matter how cramped the Supreme Court’s view of voting might be.
As of now, there is no chance that we can pass such an amendment, which would require a two-thirds majority of both houses of Congress and ratification by three-fourths of the states. Nevertheless, it would be fascinating to watch Republicans inveigh against a constitutional right to vote. “By gosh,” they might argue, “we want to be able to keep all sorts of people from voting!” Yes, and that is the essence of the threat to our democracy. One of our major political parties doesn’t want every legal voter to cast a ballot and every legal vote to be counted and respected.