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.”