- What do you mean I don't have a "right to vote?"
- Who said I don't have a citizenship right to vote?
- What's the difference between a citizenship right and a state right?
- But don't the 15th, 19th and 26th Amendments give African Americans, women and 18-year-olds the right to vote?
- So what is the 1965 Voting Rights Act?
- What about the 1993 Motor Voter Act and the 2002 Help America Vote Act?
- Why do we need a Voting Rights Amendment?
- What are the provisions in House Joint Resolution 28?
- Does House Joint Resolution 28 eliminate the Electoral College?
- What are the major objections to House Joint Resolution 28?
- What can I do to support the Voting Rights Amendment?
Q. I'm a registered voter and every time there's an election I'm entitled to vote and I vote. What do you mean I don't have a "right to vote?"
A. I mean as an American you don't have a citizenship right to vote. Voting in the United States is a "state right" not a "citizenship right."
Q. Who said I don't have a citizenship right to vote?
A. The U.S. Supreme Court in Bush v. Gore (2000). In their ruling the majority of the Justices said in very plain language, "the individual citizen has no federal constitutional right to vote for electors for the President of the United States." It's electors in the Electoral College, not the direct popular vote of the people that elects the President and Vice President in the United States. State legislatures appoint electors to the Electoral College and those electors can, if they choose, ignore the popular will (vote) of the people in casting their vote for President and Vice President.
Q. What's the difference between a citizenship right and a state right?
A. The 1st Amendment contains individual citizenship rights that follow or go with you from state to state (that is, they are the same wherever you are in the U.S.); and they are protected and enforced by the federal government you have equal protection under the law by the executive, legislative and judicial branches of the federal government. Therefore, as a result of the 1st Amendment, every American citizen has an individual right to free speech, freedom of assembly, and religious freedom (or to choose no religion at all), regardless of which state you are in individual rights that are protected by the federal government. A state right is NOT an American citizenship right (that is, not protected by the federal government), but a right defined and protected by each state and limited to that state. Therefore, when it comes to voting, each state is different (separate and unequal) because voting is a state right.
Q. But don't the 15th, 19th and 26th Amendments give African Americans, women and 18-year-olds the right to vote?
A. No! Each of those amendments are stated in the negative and guarantee African Americans, women and 18-year-olds respectively non-discrimination in voting. They do not grant them an affirmative individual right to vote that follows them from state-to-state.
Q. So what is the 1965 Voting Rights Act (VRA)?
A. Technically, it is misnamed. It should have been called the 1965 Non- Discrimination in Voting Act. The 1965 VRA was the implementing legislation of the 15th Amendment (ratified on December 18, 1870). It could only be implemented in our day after Brown (1954) overturned Plessy (1896).
Q. What about the 1993 Motor Voter Act and the 2002 Help America Vote Act (HAVA)?
A. Both are further implementing the 15th Amendment and both accept and do not challenge the constitutional foundation of "states' rights" in voting.
Q. Why do we need a Voting Rights Amendment?
A. Any power not given to the federal government by the Constitution belongs to the states. "Slavery" was not in the Constitution. It was protected by the 10th Amendment, the constitutional basis of "states' rights." The affirmative individual right to vote is not in the Constitution therefore it is a state right. Just as it took a 13th Amendment to overcome the limitations of the 10th Amendment to outlaw slavery, it will take a 28th Amendment (House Joint Resolution 28) to overcome the limitations of the 10th Amendment with respect to "states' rights" in voting.
Q. What are the provisions in House Joint Resolution 28?
A. First it would give every American an individual right to vote. Second when Americans turn 18 (male and female) and are required to register with the Selective Service System they would at the same time automatically be registered to vote. The Selective Service System would send their voter registration to their local board of election and in the future the U.S. Postal Service would automatically transfer any change of address from the old local board of election to the new board of election. Third, while this amendment does not eliminate the Electoral College it does require the Electoral College vote in every state to reflect the majority popular vote in that state. Fourth it would give Congress the power and authority to make laws that would provide a unitary voting system that is fair to all that is, give every American citizen an equal access to vote, shield our voting system from fraud and abuse, insure that every vote is accurately counted, and review our voting system every four years to make sure it is the best and most secure voting system in the world.
Q. Does House Joint Resolution 28, the Voting Rights Amendment, eliminate the Electoral College?
A. No! The elimination of the Electoral College is proposed in House Joint Resolution 36 (109th Congress), which would allow us to elect the President and Vice President on the basis of a majority of the popular vote or oneperson, one-vote. The two ideas a right to vote and elimination of the Electoral College were deliberately separated because many Americans support only one or the other idea, but not both ideas together. H. J. Res. 28 only requires the Electors from each state to cast their Electoral College votes for the candidate who wins a majority of the popular votes in that state. Under the present Constitution, a state legislature can ignore the popular vote in a state and elect their own electors to the Electoral College regardless of the popular vote in the state as the Republicans were prepared to do in Florida in 2000.
Q. What are the major objections to House Joint Resolution 28?
A. They fall in two broad categories: (A) a misunderstanding or a misstatement of the issue and problem; and (B) an argument that even though the "right to vote" is not explicitly in the Constitution similar to Roe v. Wade's claim of a right to privacy a fundamental right to vote can be construed to be there.
The following is a more detailed explanation of the two objections.
(A) The misunderstanding or misstatement of the problem can best be illustrated by an exchange that took place between the Rev. Al Sharpton and Senator Bob Graham during a Democratic presidential primary debate. In light of the presidential fiasco in Florida in 2000, and during the South Carolina Democratic presidential candidate's debate on May 3, 2003, the Rev. Al Sharpton asked Florida Senator Bob Graham if he would support adding a voting rights amendment to the Constitution. In essence Senator Graham said the following: "I haven't seen the legislation, but probably not. I believe states should remain in control of election procedures. And I'm against federalizing the election process." Let's analyze his arguments.
First, it means Senator Graham essentially supports the status quo when it comes to voting rights because, under current law, 2000 could happen again in Florida or elsewhere and many of the same voting problems were manifest in 2004 even though the election was not close enough for the media to highlight or refocus attention on them as intensely again.
- For example, in Ohio, even though the election outcome was not in doubt, months after the 2004 election, votes were still being counted.
- The winner of the popular vote losing has happened four times in our history 1824, 1876, 1888 and 2000.
- Most Americans are totally unaware that, nationally, according to a joint study by the California Institute of Technology and Massachusetts Institute of Technology, somewhere between four and six million votes were not counted in 2000 because many states had similar problems to what occurred in Florida.
- Other states' election systems didn't get the same exposure as Florida's because the winner in other states was not in doubt. For example, Illinois was worse than Florida it didn't count nearly 200,000 votes with similar problems to Florida's but because Gore won Illinois by 569,605 votes, the winner of the state's electoral votes was not in doubt. In Illinois and other states too, most of the problems with voting and machines were concentrated in the poor and minority communities.
"Amazingly, the government of the United States conducts and provides no official count of the vote for president." (Overruling Democracy The Supreme Court vs. The American People, by Jamin B. Raskin, p. 66) Can you imagine the United States recognizing a close and hotly contested third world "democratic" election where the citizens had no right to vote, as much as six percent of the total vote was not counted; where there was no official results provided by the government; and where that country's Supreme Court declared it's personal and ideological friend the winner, even though the declared winner did not get the most popular votes?
Second it means Senator Graham supports "states' rights" when it comes to voting rights. Senator Graham and others need to be reminded that slavery was not supported directly in the Constitution. The world "slavery" never appeared in the Constitution. Slavery was supported constitutionally because states had a right "states' rights" to provide legal cover allowing private citizens to own other human beings. Today the same states' rights system continues with respect to voting.
Third, H. J. Res. 28 does not federalize voting any more than the First Amendment federalizes free speech or freedom of religion. The First Amendment's right to free speech and religion is an individual citizenship right (not a "federal right") applicable to every American that is protected by the federal government. It's an individual right that can be protected with federal legislation and upheld in a federal court of law. Likewise, a voting rights amendment would grant every American an individual citizenship right to vote that would ultimately be affirmed by Congress through legislation and validated through Supreme Court interpretation.
Fourth in essence, then, in the South Carolina debate, Senator Graham chose "states' rights" over an "individual right." Senator Graham chose Florida's right to set an arbitrary December 12 deadline to count all the votes, which took precedence over every individual American's vote being counted.
Fifth Attorney General John Ashcroft sent a letter to the National Rifle Association asserting that every American has an individual constitutional RIGHT TO A GUN. In it he wrote: "Let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms." Some agree and others disagree with that interpretation. However, the Supreme Court made it absolutely clear in Bush v. Gore "there is NO INDIVIDUAL CITIZENSHIP RIGHT TO VOTE..." in the Constitution!
(B) There is a group of legal scholars who believe federal legislation can be written under our current constitutional construct and legal structure that would sufficiently solve all of our voting problems. If Congress had the will, under our current Constitution, it could do much more to strengthen the administration of a unitary voting system, protect the vote and fully count all votes. However, absent a voting rights amendment, any solutions to our most pressing voting rights problems will not be universal or sustainable.
How can we achieve equal protection under the law in voting in 13,000 separate and unequally administered voting jurisdictions? We can't!
Consider three problems that cannot be solved under our current Constitution but could be solved under the individual right to vote in House Joint Resolution 28: (1) the lack of voting rights or statehood in Washington, DC; (2) the issue of ex-felons; and (3) local elections.
First consider the political disenfranchisement of the citizens of Washington, DC. For example, Congressman Jackson was born in South Carolina, raised in Chicago and went to college in North Carolina. As an American citizen, two U.S. Senators and a U.S. Representative automatically represented him while in South Carolina, Illinois and North Carolina. However, when he went to high school in Washington, DC, he was still a U.S. citizen, but he had no voting representation in Congress.
Under the current Constitution, DC has tried to get such political representation through the process of a constitutional amendment and it failed because not enough states ratified it. In 1993 the legislative route was tried and statehood was denied the first time in American history a people were denied statehood that met all the historic criteria for admission as a state. They also tried the judicial route and the judges ruled against them. 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).
Granting all Americans a constitutional citizenship right to vote would put the disenfranchised DC residents on an equal footing before the law with all other Americans and virtually make inevitable their gaining voting rights or statehood and the resulting full political representation in Congress.
Second, under the current Constitution's states' rights voting structure, Congress does not have the power or authority to establish a unitary voting system. We are stuck with a states' rights structure and privatized election mechanics that is, stuck with the Floridas, Illinois', Katherine Harris', Ken Blackwells' and Diebolds of the world. Under the Help America Vote Act (HAVA) passed after the 2000-election debacle Congress authorized $3.8 billion to improve the administration of our election system. By the 2004 election only a hand full of states had fully implemented improved systems. New York had not even passed implementing legislation to quality to receive HAVA funds!
Third, even those legal scholars who say a fundamental right to vote can be construed to be in the Constitution admit that Congress can only pass a law that would apply to federal elections but would not apply to state and local elections.
It is obvious that the right to vote would be clearer and more secure if it were explicitly in the Constitution instead of having to be construed to be there!