Mark Pocan drafts constitutional amendment to establish the right to vote

2013-05-14T10:50:00Z Mark Pocan drafts constitutional amendment to establish the right to voteJACK CRAVER | The Capital Times | jcraver@madison.com madison.com

You don’t have an inalienable right to vote. At least not according to the U.S. Constitution.

Although a number of amendments prohibit the government from denying the vote to individuals based on certain factors, such as sex, race and age (if you’re above 18), nothing in the Constitution unequivocally guarantees citizens access to the ballot box.

For instance, many states prevent felons from voting even after they have served their sentences and had their other rights restored. Many others require voters to live in a particular jurisdiction for a certain amount of time before they are eligible to vote there.

And of course, there are the myriad election regulations, such as voter ID, which some argue is tantamount to preventing people from exercising their voting rights.

At a press conference at the Capitol on Monday, Rep. Mark Pocan thus unveiled his first bill as a U.S. congressman: a constitutional amendment establishing a fundamental right to vote. Here is the proposed text:

“Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.”

Pocan, who is sponsoring the bill with fellow Rep. Keith Ellison, D-Minn., says the legislation will provide additional protections against “the plague of greater voting restrictions” that have swept the country in the form of voter ID requirements, stringent registration requirements and the elimination of early or absentee voting.

“This is about ensuring that our right to vote is not at the mercy of state legislatures acting with partisan motives,” he explained.

Wisconsin’s Constitution does include a provision establishing an unambiguous right to vote. It is that provision that Pocan credits with rulings by two circuit court judges to block implementation of the voter ID bill signed by Gov. Scott Walker in 2011.

But would the vague language in Pocan’s amendment guarantee that all courts — including the U.S. Supreme Court — would deem a restriction such as requiring a photo ID unconstitutional?

Two legal experts argue that it wouldn’t.

“I don’t think it would resolve those questions,” says Andrew Coan, a University of Wisconsin professor of constitutional law. “The most significant controversies over voting rights would persist.”

Ken Mayer, a UW political science professor who served as an expert witness for a group suing the state over the voter ID law, also says the amendment would lead to a number of different interpretations of what constitutes a voting rights infringement.

But Coan and Mayer both say that such an amendment could nevertheless have significant consequences.

“It may not necessarily change the outcome, but it changes the dispute,” says Mayer.

Currently, he says, the “right” to vote isn’t a consideration in many lawsuits that challenge voter ID rules. Instead, plaintiffs argue that such laws violate equal protection or due process provisions of the 14th Amendment.

An affirmative right to vote, he says, would reframe the issue, and make potential barriers to voting suspect in the eyes of moderate or conservative jurists, such as Supreme Court Justices Anthony Kennedy and John Roberts.

“If you’re a Kennedy or a Roberts, or even an originalist like (Justice Antonin) Scalia, the analysis (of the issue) becomes different,” he says.

Caliph Amiri Muab-El, a Universal Church pastor who works in Madison to reintegrate prisoners into civilian life through the Voices Beyond Bars program, says he is enthusiastic about Pocan’s amendment but would like to see more specific language guaranteeing felons the right to vote after they have served their sentence.

Many states, he points out, do not ever let felons reacquire the right to vote, dooming many former offenders to a lifetime of being “sub-citizens.”

“I think it would be a stronger amendment,” he says. “Clarity is key.”

Madison Ald. Shiva Bidar, who came to the press conference to show support for Pocan’s proposal, thinks the bill’s broad language makes it more likely to pass in the GOP-controlled House of Representatives.

“The more specific, the less chance there is of getting support,” she says. “Who can vote against establishing a right to vote?”

According to Mayer, however, the chances of the bill passing are miniscule, no matter how innocuous its language. It probably won't even be referred to a committee, let alone pass the House with the necessary two-thirds majority that a constitutional amendment requires.

“Pocan is a freshman in the minority (party). I mean, good luck.”

Copyright 2014 madison.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(37) Comments

  1. AllAmerican11B
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    AllAmerican11B - May 14, 2013 8:10 pm
    You're an intelligent man, I'm not going to justify that question with an answer.

    You really shouldn't have even replied to my comment.
  2. RichardSRussell
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    RichardSRussell - May 14, 2013 6:35 pm
    Whom did you think was being smeared?
  3. jrclen
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    jrclen - May 14, 2013 4:35 pm
    Having the right to vote for one of two idiots is not much of a right. How many of us don't bother to vote at all due to jokers like Pocan running for office?
    Obama - Romney?
    Baldwin - Thompson?
    Seriously?
  4. tomtom33
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    tomtom33 - May 14, 2013 2:51 pm
    They gerrymandered the House Districts in 2000 so they could turn a big deficit around in 2010? You might want to keep that super secret, or the men in the white coats might come calling.
  5. TS78
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    TS78 - May 14, 2013 2:15 pm
    Shhh. A little known, super secret tactic called Gerrymandering. But you've probably never heard that term before. So there it is again.
  6. tomtom33
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    tomtom33 - May 14, 2013 1:36 pm
    How did a party in a death spiral manage to soundly take control of the House in 2010 and retain that control in 2012?
  7. Nav
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    Nav - May 14, 2013 1:19 pm
    tomtom33, we need to make it easier for people to vote, not harder. If this bill does that, I am all for it. I trust you want maximum people to vote, right tomtom33, or do u not want someone people to vote?
  8. AllAmerican11B
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    AllAmerican11B - May 14, 2013 12:43 pm
    Bender,
    Nothing hateful in that smear-filled comment at all.

    You can't answer the valid question I asked so you automatically resort to the scraping up the sludge from the bottom of political modes and apply the direct frontal attack and insult all those you oppose. That's very adult of you.

    Not saying a thing would have been a much better idea.

    You have no logic.
  9. PapaLorax
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    PapaLorax - May 14, 2013 12:29 pm
    No I don't see a difference in your right to bear arms and right to vote. The government has placed burdens on the right to legally buy a gun...burdens that would never be acceptable to vote. I have no idea what your borrow analogy is meant to show. Literally, no idea.

    I think the move to mail-in voting (pushed by both parties) is completely wrong. I would go the other direction. In person voting (not inperson absentee) should be 4-5 days. Friday - Tuesday. I think many of the GOTV efforts are really shady and not encouraging people to use their right to vote...but essentially dragging people who would otherwise exert no effort to vote because you know they will vote for your side.

    and Yes, I realize the voting laws being pushed by the GOP are politically motivated (as is their opposition). That doesn't make them bad just because they are viewed as being beneficial to one side.
  10. BSH
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    BSH - May 14, 2013 12:18 pm
    Was that sarcasm? Freedom is only retained when democracy is restrained, and when the power of government is subject to firm limits. I favor the strong preservation of freedom. The freedom to vote when all other freedoms are subject to limitation and infringement is no freedom at all.
  11. AllAmerican11B
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    AllAmerican11B - May 14, 2013 11:55 am
    Richard,
    That smear was totally uncalled for; I think you forgot to take your anti-smear pill this morning. ;^)
  12. AllAmerican11B
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    AllAmerican11B - May 14, 2013 11:37 am
    Additional question for anyone who chooses to answer it...

    Is it illegal for someone to TRY to vote in an election if they are not a US Citizen or is it only illegal if someone actually does vote in an election if they are not a US citizen.

    POINT: After a persons individual vote is put into the "election box" there is no means of tracking which vote belongs to whom; therefore, if the person is voting illegally their vote can never be removed from the tally thus the election has been tainted with illegal votes.
  13. RichardSRussell
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    RichardSRussell - May 14, 2013 11:36 am
    The language has to be carefully drafted so as not to overpromise.

    Lefties like me wouldn't want it interpreted to extend the right to vote to corporations.

    Righties wouldn't want it interpreted to extend the right to vote to dogs and goats (whom they already see as the likely beneficiaries of marriage equality).
  14. mikeylikesit
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    mikeylikesit - May 14, 2013 11:31 am
    Hopelessly broad language--is Pocan really aiming to give all felons currently serving terms the right to vote?

    There is a good reason why felons are not allowed to vote. A politician promising felons shorter sentences, pardons, etc., could create a huge conflict of interest in the electoral system. Yes, people are supposed to vote for their own best interests, but felons voting into office people who have promised to spring them from jail? Given that somewhere close to one in ten people is in some stage of the criminal justice system in this country, it's not unlikely that a politician somewhere would win on the felon vote.

    Pocan's amendment would effectively eliminate the ability to block felons from voting. While I disagree with lifetime bans on voting for people who have completed their sentences, I don't think felons should vote. Meanwhile, Pocan's language does very little to resolve the issues that actually plague our voting system, such as residency requirements, voter ID, etc. A "fundamental right to vote" doesn't say anything about ID's. Indeed, by giving this right only to citizens of voting age, the amendment could be read as an encouragement to check IDs. How else do we establish citizenship and age?

    What a waste of Congress's time.
  15. AllAmerican11B
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    AllAmerican11B - May 14, 2013 11:22 am
    "...found to be voting illegally..."

    The key word in that phrase is "found".

    How can you find something if you are not actively trying to prevent it and actively looking for it. Can you PROVE to me that individuals who are not United States Citizens are not voting in our elections; if you claim that you can, please define exactly how they are checking for it.
  16. Bender
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    Bender - May 14, 2013 11:08 am
    Obviously, I meant illegally
  17. RichardSRussell
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    RichardSRussell - May 14, 2013 11:02 am
    Assuming this is a serious question, the serious answer is that we've been nibbling away at the problem a little bit at a time.

    Don’t take my word for it. Look at the history of Constitutional amendments. Of the 27 we have adopted, no fewer than 6 of them have extended the vote to people who didn’t previously have it. If there had been a right to vote embedded in the Constitution, none of these amendments would have been needed:
     • 14th (1868), to 21-year-old male citizens
     • 15th (1870), no limit based on race, color, or previous condition of servitude
     • 19th (1920), to women
     • 23rd (1961), to DC residents for president, if Congress agrees
     • 24th (1964), cannot be conditioned on payment of poll tax
     • 26th (1971), not based on age, if over 18
     
    All the Constitution says is that, to the extent that states permit their citizens to vote, they may not restrict that ability on the basis of one of the above conditions. But the only amendment that specifically ordered a popular vote (the 17th, 1916, for US senators), just specified that “the people” do the voting, and left it up to the states to decide who “the people” were.

    In addition, many states deny the vote to convicted felons and adjudicated incompetents. And of course nobody lets children vote, tho they are unquestionably people and citizens.
  18. Bender
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    Bender - May 14, 2013 11:02 am
    When in Wisconsin has anyone found to be voting legally NOT been prosecuted?
    I believe the laws ARE being enforced.
  19. AllAmerican11B
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    AllAmerican11B - May 14, 2013 10:50 am
    My singular point is that the Wisconsin Constitution clearly states that;

    "Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district."

    Requiring individuals to prove that they are United Stated Citizens is NOT being enforced.

    It is also illegal for any person that is not a United States Citizen to vote for or against any office at the national level, that includes Senate, House or President. This is also NOT being properly enforced.
  20. AbrahamLinksys
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    AbrahamLinksys - May 14, 2013 10:37 am
    PapaLorax, don't you see something fundamentally different about the right to bear arms vs the right to vote?

    I could legally borrow a weapon or purchase one online without showing an ID. Can you borrow someone's vote? If you're unable to purchase a weapon at the moment, you are still physically able to carry and shoot a firearm and so therefore an ID during purchasing time doesn't infringe on your rights. if I am unable to identify myself on voting day (e.g. Lost my wallet), I wouldn't be able to vote at all. And I can't simply borrow someone else's vote or ID because that doesn't really make sense.

    I understand the need to keep integrity in the voting process, but voter ID doesn't really do that. Especially since almost any and all recorded voter fraud occurs by mail, not in person.

    But voter is targets in person voting, which won't help. Neither does shortening voting hours in precincts where the opposite party has a slight advantage, and increasing them in more politically favorable precincts.

    If you can't see that the voter laws enacted by ALEC supporting governments are a sham, then I highly suggest you read up on the recent laws, court cases and ALEC model legislation. Republicans know they do better when fewer vote, so many of the less respectable ones are gung ho for reducing voter turnout. The good ones are still trying to solve problems, working with the other party and most importantly listening to the constituents they represent.
  21. tomtom33
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    tomtom33 - May 14, 2013 10:22 am
    I didn't realize that there was a constitutional amendment proposed for voter ID.
  22. Bender
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    Bender - May 14, 2013 10:20 am
    And yet you can walk into a gun show and buy a gun without an ID.
  23. Bender
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    Bender - May 14, 2013 10:19 am
    Why do you hate our freedoms?
  24. PapaLorax
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    PapaLorax - May 14, 2013 10:18 am
    I would prefer to have any new amendments not be written in a manner that will immediately require a court interpretation.

    If you want to allow felons - say so.

    If you want to ban ID laws...say so.

    This just seems to be begging the issue to be vague and allow a mess of court challenges and clarifications. Maybe that is his point - but I would like it a little more first amendment and start to spell out the sort of things you want it to cover.
  25. Jack Craver Staff
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    Jack Craver - May 14, 2013 9:51 am
    Hi Folks,

    Thanks for the comments, as always. The questions raised by PapaLorax and AllAmerican would likely be subject to a court decision if this amendment were enacted.

    TomTom, I appreciate the sarcasm, but in all seriousness, one could make the same comment about just about any constitutional amendment that we've enacted since the country's founding. Many thought the U.S. "functioned" fine before the 19th amendment extended the vote to women, or before the 15th amendment extended the vote to racial minorities.

    And most people, as "davea" pointed out, would likely contend that the U.S. functioned fine before the introduction of Voter ID laws. And yet many of those same people probably support such laws, because they think it would represent an improvement over the status quo. That's democracy.
  26. howaboutthat
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    howaboutthat - May 14, 2013 9:48 am
    I generally don't agree with Mark's politics; however, this guy has gotten more accomplished in 4 months than Tammy Baldwin did in 14 years. Why again is she so great?
  27. BSH
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    BSH - May 14, 2013 9:33 am
    Democracy is mob rule. Democracy is two wolves and a sheep voting on what's for dinner. Democracy is all about trampling on minorities - economically, socially, and in justice and liberty. Universal suffrage is the worst thing that has yet happened to America.

    Not to mention, this pathetic bit of posturing is just a useless distraction from serious problems. Warrantless wiretaps, drones killing Americans without due process, a debt bomb continuing to escalate, exporting America's wealth via sustained massive trade deficits, etc, etc... And this clown wants a constitutional amendment to guarantee that the mentally deficient and hopelessly uninformed are able to direct the future of the nation.
  28. davea
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    davea - May 14, 2013 9:12 am
    You mean like Voter ID?
  29. PapaLorax
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    PapaLorax - May 14, 2013 8:29 am
    Let me know when you can walk into a gun store and buy a gun without ID...and I will begin to believe that voter ID is illegal.

    "Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides."

    I couldn't agree more. Prove you are a citizen or legal voting age and where you reside. Not that hard. I do think there should be a really-wide latitude of IDs allowed (far more then the WI Voter ID law)...but you need something.
  30. AllAmerican11B
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    AllAmerican11B - May 14, 2013 8:09 am
    You do know that continuously insulting others will get you banned.
  31. tomtom33
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    tomtom33 - May 14, 2013 8:07 am
    In virtually every election 40% or more did not vote for the victor for a plethora of reasons. As I recall a higher percentage voted for Walker than for Obama.
  32. Homer717
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    Homer717 - May 14, 2013 7:27 am
    What he really means is: "Citizens have a fundamental right to vote, especially if you are a so-called disenfranchised minorty who will vote for Democrats. If you are a middle aged white guy who votes Republican, this does not apply."
  33. 920Annie
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    920Annie - May 14, 2013 7:24 am
    Dear ImWatchingYou...There were plenty of people that DIDN'T vote for Walker and his cronies because of the criminal way in which Walker runs this state. Godfather comes to mind frequently

    As for the right to vote, I think it an excellent start. But the next step has to be severely limiting campaign contributions and term limits for ALL legislature, DC and all States. I would also like to see the Supreme Court have term limits as well as become an elected, by the people, body.
  34. AllAmerican11B
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    AllAmerican11B - May 14, 2013 7:23 am
    I have absolutely no problem with this idea as long as the amendment is unambiguous and includes a simple requirement that all voters prove they are citizens of the United States of America before they are allowed to vote.

    It is not legal for non-citizens to vote for ANYTHING within the State of Wisconsin, this needs to be strictly enforced.
  35. tomtom33
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    tomtom33 - May 14, 2013 6:58 am
    How on Earth have we managed to function for nearly 2 1/2 centuries without this critical amendment?
  36. Nav
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    Nav - May 14, 2013 6:41 am
    A great idea that people living in a Democracy can rally around.
  37. ImWatchingYou
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    ImWatchingYou - May 14, 2013 6:18 am
    Congratulations Wisconsin, this is what you voted for....
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