Did you know Voting isn’t a Constitutional Right of Citizenship? - Part one
This is part one of a three part educational series on behalf of The Future - Today & Tomorrow Super Pac
We need to fix this if we’re going to keep our Constitutional Republic & Representative Democracy.
The right to equal and unencumbered ability to vote is not a condition, term or grant of Citizenship. This is a fatal flaw in our American enterprise and the overwhelming majority of my fellow American citizens don’t know this fact. For context about the hypocrisy of this “Ghost in the Machine”, let me provide a brief outline of an American Journey.? I’m a 10th generation African American citizen and father. My mother’s family was brought to America as slaves in roughly 1725, to Hemingway South Carolina. We were freed at the death of my Great Great-Great Grandfather and plantation owner, Peter Pressley in roughly 1836. My family has branched from there across our country and achieved the various levels of the “hoped for American Dream”, in the public and private sector, as successful business owners through to high levels of elected office. My sons are part of the 11th generation of our family story. America has been both cruel and hopeful, demeaning and uplifting, violent and peaceful, to my family and to all who have ventured through the American experience.?
One vestige of the American experience is citizenship and the enumerable rights that are afforded with it. It’s the reason why so many seek the opportunity regardless of the dangerous refugee peril to obtain it or the dehumanizing bounds of slavery or forced ethnic cleansing of the Indigenous residents who lived here prior to colonization by non-indigenous European immigrants. Despite our past and in spite of our self-developed impediments, we have created a vehicle for freedom and both self and community determination that provides a great range of expressions. Constitutionally enabled and defined rights of citizenship (both in the original amendments ratified at the Constitutional Convention of 1787 and the 17 amendments added afterwards) include:
·??????? Privileges and Immunities Clause
·??????? Due Process Clause
·??????? Procedural Due Process
·??????? Substantive Due Process
·??????? Economic Rights including commerce, retail consumerism, employment, purchasing property, etc.
·??????? Privacy Rights
·??????? Equal Protection
·??????? Freedom from State Sanctioned discriminatory practices on persons within specific defined categories
·??????? Rights to the freedom of speech, assembly, press, worship as you choose, possess & bear arms, marry of your choice and
·??????? Travel inside the United States without passport or travel restrictions and travel internationally and return to America with a US passport
·??????? Bring non-resident family members and children through the legal immigration process
Rights enabled and derived as a part of Citizenship can’t be treated in a disparate or disparaging nature by Individual States, Territories, or the District of Columbia. You have the same uniform and unfettered right to fly to Alaska or Hawaii, buy a home in Connecticut and North Dakota, make public comment at Government or other public gatherings, go to a Catholic Church, a Jewish Synagogue, an Islamic Mosque or a Protestant Church (White Evangelical, Historic African American, Hispanic, etc.) and be free from any disparaging treatment as a citizen. Your enabled rights of Citizenship don’t change from State to State (despite what the MAGA Dictatorship political officials may want to install). Despite calls from the Claremont Institute, Fox News, Breitbart (and other Conservative Mainstream Media organizations), Pro-Dictatorship member of Congress, Pat Buchanan, Steve Bannon or Governors in Florida, South Dakota, you can’t revoke or cancel Citizenship based upon your voting choice, Political ideological beliefs or loyalty to Donald Trump. In?Afroyim v. Rusk,14?a divided Court extended the understanding of Citizenship as follows; [T]he (14th) Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit.” As a citizen, we have the same equal package of rights regardless of where we live.
What’s missing from this list of Constitutionally guaranteed rights of Citizenship? What presumed guaranteed right is treated in unequal and disparaging ways in each State, despite various Constitutional Amendments that reference it? Voting. That’s right, voting is not a right linked to your Citizenship, regardless of how long you’ve been a citizen or your family have been citizens[1][2]. I provided my personal background to juxtapose the so-called pronouncements from the MAGA Dictatorship political and voting class, the Non-MAGA Republican political class and those who oppose any Federal actions on the matter while claiming that they stand for only allowing legal “Citizens” to vote. Be it a 10th generation African American citizen, a 3rd generation German-American former resident of the White House (2017-2021) or any Citizen regardless of method of Citizenship, we are all currently disenfranchised in the allocation and exercise of voting.
But I thought voting is a Constitutionally protected right, isn’t that the same as a Constitutionally guaranteed right?
Well, no. As I started studying this issue, I learned of the disconnect between Voting and Citizenship and the distinction between Guaranteed and Protected in terms of application of rights. First, let’s look at the disconnection of Voting and Citizenship.
The most basic assumption is that the right to vote is either a right provided for under the Bill of Rights, the First Amendment protections of freedom of speech (voting is an expression of one’s opinion or speech) or a right qualified under one of the following Constitutional Amendments:
·??????? The 14th Amendment (ratified 1868) protects the right to vote against discrimination,
·??????? the 15th Amendment (ratified 1870) prohibits vote denial or abridgement based on race,
·??????? the 19th Amendment (ratified 1920) prohibits vote denial or abridgement based on sex,
·??????? the 23rd Amendment (ratified 1961) afforded the residents of Washington, D.C.
·??????? the ability to vote for president,
·??????? the 24th Amendment (ratified 1964) bans poll taxes, and
·??????? the 26th Amendment (ratified 1971) prohibits vote denial or abridgement based on age for those 18 years or older.
To paraphrase Luke Skywalker speaking to his nephew Ben Solo/Kylo Ren in the Last Jedi, “everything you just said is wrong”. Because voting has not been defined in affirmative verbiage expressly spelling out the connection, The US Supreme Court has ruled in multiple cases that voting isn’t an expressed right of Citizenship nor is it a Guaranteed right of Citizenship. Amendments to the U.S. Constitution have required “equal protection,” effectively preventing States from restrictions of voting based on race, sex, age, some discriminatory methods provided some equality of access to voting for President to the citizens of Washington D.C. yet various versions of the Supreme Court have expressed stated that the grant of voting rights is a grant of the individual States & DC for Presidential elections. These cognitively incoherent rulings, (both after the Civil War and rulings in the past 22 years) and lack of Federal Statutory action, Constitutional amendment or Judicial rulings overturning these precedents have left all American Citizens at the mercy of each State’s purview and political machinations.
Didn’t the 14th amendment and 15th amendment resolve this question and what Supreme Court cases have said otherwise??
The adoption of the 14th and 15th Amendments should have set the predicate for formalizing the relationship between Citizenship and Voting Rights. The 14th amendment set defined standards, rights and immunities for American Citizenship[1] and Section 2[2] of the 14th amendment penalizes states with loss of Congressional Representation when the right to vote at any election for Federal and State offices is denied or abridged to any male citizen of the United States. The 15th Amendment provided a direct link to Section One and Two of the 14th amendments, in Section One (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). Later voting rights amendments to the U.S. Constitution—especially the?Nineteenth?and?Twenty-Sixth Amendments—copied the Fifteenth’s structure and its wording, declaring that the right to vote “shall not be denied” on account of sex or age, respectively. Section Five of the 14th Amendment and Section Two of the 15th Amendment expressly provided for Congress to have the legal authority to use legislation to enforce these amendments, which Congress has taken action in via the Enforcement Acts & various Civil Rights Acts of the late 1800’s through the 1960’s. This interpretation is consistent with the concept of federal supremacy in the Constitution. Federal supremacy of laws and the ability to produce laws that governed the Country as a whole require national citizenship. Federalist No. 52 expressed the founders' belief that the right to vote rested with the people and emanated from the U.S. Constitution and that individual states could not deny this right. The underlying principle of this connection is supported by Gray v. Sanders, 372?U.S.?368?(1963),?Reynolds?v.?Sims, 377 U.S. 533 (1964), and?Wesberry?v.?Sanders, 376 U.S. 1 (1964), where the Supreme Court established the one-person, one-vote principle.
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Unfortunately, a series of Supreme Court decisions (see below) during the late 19th century and the last two decades of the 20th century overthrew the intent and application of the expansion of citizenship to include voting rights via the Fourteenth and Fifteenth Amendments, civil rights acts and enforcement mechanisms prescribed to enable Congressional and Administrative rules to protect the newly enumerated rights provided for under these amendments:
The cumulative effect of these rulings is as follows:
1.????? Voting/suffrage was not coextensive with the citizenship of the States nor explicitly given as a right of national citizenship when the Constitution was adopted and subsequently that citizenship alone is not sufficient cause for voting[3].
2.????? The 14th amendment didn't convey an expansion of the privileges & immunities of citizenship that could include voting[4].
3.????? The 15th amendment?did not confer upon any individual the right to vote, but merely forbade states to give any citizen preferential treatment. In this interpretation, the right to vote derived from states, rather than the federal government[5].?
4.????? The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College[6].
5.????? If a law that enforces Fourteenth Amendment rights is preventive rather than remedial, it must be congruent and proportional to the goal that it is aiming to achieve. The Fourteenth Amendment only authorized Congress to take remedial steps against state action that violated the amendment. The Amendment prohibits only & applied only to violating acts of the states, not to private conduct acts of individuals[7].
6.????? Only courts can shape the substantive rights under the Fourteenth Amendment. Legislatures can only enforce a pre-existing interpretation of the Fourteenth Amendment, unless they are enacting prophylactic legislation that aims to prevent violations of rights guaranteed by the Court. The Court returned to its state action doctrine from the 19th-century Civil Rights Cases in limiting the prophylactic power of Congress granted under the Fourteenth Amendment[8].
7.????? Limits to the voting rights enforcement power of the Fifteenth Amendment (by extension the 19th, 23rd and 26th via relegating the Congressionally codified enforcement measures as improper & extraordinary legislative departure and unfamiliar from the Federalism relationship between States and Federal Government. Further diminishes the voting rights enforcement capacity of the Fifteenth Amendment by prescribing the right to vote for Presidential Electors as the State legislature body is fundamental, a State legislature’s right to decide Presidential electors is of equal weight to the right of its citizens to vote for electors and that State legislatures’ (after granting the voting franchise to citizens of its state & in the Court’s contextual interpretation of Article II) can take back the power to appoint electors independent of the voting action of its citizens at any time)[9].?
These decisions have primarily stood as precedent since their ruling, save portions of US v. Reece (US v. Raines (1960) pulled back some of the negative aspects of Reese, but it left the classification of voting rights as a grant of the States under the 10th Amendment). The Elk v. Wilkins opinion remains valid for interpretation of future citizenship issues regarding the 14th Amendment but has been rendered undebatable for its application to native Indians due to the 1924 Act. These decisions provide U.S. states & specifically State Legislative bodies, with incredible power?over who is allowed to participate in elections, regardless of Citizenship status, i.e., a State Legislature can prohibit access to voting via criminal penalty status, tax obligation status, geographical residence & voting preference selection[10] or overthrow the expressed voting results of the election if they don’t accept the desired outcome (Independent State Legislature Doctrine)[11]. These decisions have a bi-polar effect on the 14th& 15thAmendments & the construction on Citizenship enumerated rights (Privileges and Immunities Clause, Equal Protections Clause, Due Process Clause, Privacy Rights, etc.), by using judicial action to treat voting rights as the unwanted stepchild of Citizenship rights. This holds a negative dagger over the fate of the 245,741,643 voting age eligible adult citizens leading into the 2024 General Election.?
So why haven’t we fixed the connection of voting right and citizenship rights?
We have a natural disconnect between the Pro-Democracy and Pro-Dictatorship movements in America, that stands in the way of any consensus to ensure voting is an unquestioned right of Citizenship. Pro-Dictatorship movement you ask? It’s not just reflective of the current MAGA Dictatorship movement, which requires unquestioned pledges of faith and loyalty to Donald Trump, but it’s a symptom of a longer-term struggle within the soul of America. The American Conservative Movement has been and maintains an Anti-Citizenship Voting Rights Guarantee position. They support the disjointed administration of voting rights access and limiting which Citizens can have access. ?
?American Citizenship has been served as both a crowning jewel, an unreachable dream and an exclusionary barrier to the various competing constituencies who seek to obtain and share from. American citizenship has never had a clean common entry point and the ability to exercise the full franchise has been diluted, obstructed & constricted depending upon the citizen group. Some of the barriers separate and apart from racial voting discrimination towards African Americans and Women’s suffrage include:
·??????? 1789 - The First Presidential election - The?Constitution of the United States?grants the?states?the power to set voting requirements. Generally, states limited this right to property-owning or tax-paying white males (about 6% of the population).?However, some states allowed also Black males to vote, and New Jersey also included unmarried and widowed women, regardless of color. Georgia?removes property requirement for voting. Catholics, Jews, and Quakers were barred from voting.
·??????? 1828 - Maryland?passes a law to allow?Jewish Americans?to vote.?Maryland was the last state to remove religious restrictions for voting.
·??????? 1856 - The last state to abolish property qualification was?North Carolina.
·??????? 1860 - Tax-paying qualifications remained in five states in 1860 – Massachusetts, Rhode Island, Pennsylvania, Delaware and North Carolina. They survived in Pennsylvania and Rhode Island until the 20th century.
·??????? 1876 - Native Americans?are ruled non-citizens and ineligible to vote by the?Supreme Court of the United States.
·??????? 1882 - Chinese Americans lose the right to vote and become citizens through the?Chinese Exclusion Act.
·??????? 1887 - Citizenship is granted to?Native Americans?who are willing to disassociate themselves from their?tribe?by the?Dawes Act, making those males technically eligible to vote.
·??????? 1899 - The right to vote in the?territory of Hawaii?is restricted to English and?Hawaiian?speaking men and the territory is not allowed to make its own suffrage legislation.
·??????? 1924 - All?Native Americans?are granted citizenship and the right to vote through the?Indian Citizenship Act, regardless of tribal affiliation. By this point, approximately two thirds of Native Americans were already citizens.?Notwithstanding, some western states continued to bar Native Americans from voting until 1948.?South Dakota?refused to follow the law.
·??????? 1943 - Chinese immigrants?are given the right to citizenship and the right to vote by the?Magnuson Act.
·??????? 1952 - All Americans with Asian ancestry are allowed to vote through the?McCarran Walter Act.
·??????? 1958 - The provision in the?North Dakota?state constitution that required Native Americans to renounce their tribal affiliations two years before an election is removed.
·??????? 1970 - Alaska?ends the use of literacy tests.
·??????? 1986 - United States Military and Uniformed Services,?Merchant Marine, other citizens overseas, living on bases in the United States, abroad, or aboard ship are granted the right to vote by the?Uniformed and Overseas Citizens Absentee Voting Act.
As a country, we’ve done a better job of devaluing the full expressive power of citizenship than we tell the external world. Citizenship absent of the guaranteed right to vote is a conditional dictatorship, in which the right to fully participate in governing can be taken by Pro-Dictatorship Authoritarian actors. The failure of Communist & Socialist Dictatorships has been the failure to provide a facsimile of governance by the citizenry by the binding excise of their vote. Elections weren’t a part of those Governance models. This is what Modern day Pro-Dictatorship movements have identified, the exhibition of the right to vote with the ability to manipulate the outcome and restrict the access of countervailing voices and voters. This is the model of Hungary’s Prime Minister Viktor Orban so-called “illiberal democracy” (A Dictatorship with fake elections), Poland’s de facto ruler, Jaros?aw Kaczyński, India’s Prime Minister Narendra Modi, Philippines President Rodrigo Duterte, Turkey’s President Recep Tayyip Erdo?an, Egypt’s President Abdel Fattah al-Sisi, Brazil’s President Jair Bolsonaro, Russia President Vladimir Putin, Chinese President Xi Jinping and former occupant of the White House and related office Donald Trump.[1]
Yes, I include Donald Trump in here, both by his actions, words and endorsement of fellow Modern Day Dictators and partnership with the Pro-Dictatorship Conservative Christian Right Theocratic movement in America. This movement has been at the vanguard of the purposeful decoupling of voting from citizenship, allowing them to control the supply and demand of votes available to elect officials of their choosing. These stakeholders and supportive voters use the following combination of legal, political and social narratives to restrict citizen access to voting and claiming to support the concept of only “legal citizens” having the unfettered right to vote:
Part two of
[1] World’s Autocrats Face Rising Resistance, https://www.hrw.org/world-report/2019/country-chapters/global; Dictatorship Countries 2021 https://worldpopulationreview.com/country-rankings/dictatorship-countries; Attacks on Democracy Intensify as Autocracy Spreads in Europe and Eurasia https://freedomhouse.org/article/new-report-attacks-democracy-intensify-autocracy-spreads-europe-and-eurasia
[1] Citizenship is guaranteed to all male persons born or naturalized in the United States by the?Fourteenth Amendment to the United States Constitution - Section 1 - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
[2] Section 2 - Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the?Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
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[3] Elk v. Wilkins - 112 U.S. 94, 5 S. Ct. 41 (1884); Minor v. Happersett - 88 U.S. (21 Wall.) 162 (1874)
[4] Minor v. Happersett - 88 U.S. (21 Wall.) 162 (1874); United States v. Reese, 92 U.S. 214 (1876) & McPherson v. Blacker, 146 U.S. 1 (1892)
[5] United States v. Reese, 92 U.S. 214 (1876); Bush v. Gore, 531 U.S. 98 (2000); Minor v. Happersett - 88 U.S. (21 Wall.) 162 (1874); Elk v. Wilkins - 112 U.S. 94, 5 S. Ct. 41 (1884), McPherson v. Blacker, 146 U.S. 1 (1892); San Antonio Independent School District v. Rodriguez, 411 U.S. 1. (1973)
[6] Bush v. Gore, 531 U.S. 98 (2000); McPherson?v.?Blacker,?146 U.S. 1, 35 (1892); Minor v. Happersett - 88 U.S. (21 Wall.) 162 (1874)
[7] Civil Rights Cases, 109 U.S. 3 (1883).; City of Boerne v. Flores, 521 U.S. 507 (1997); Slaughterhouse Cases, 83 U.S. 36 (1873); United States v. Harris, 106 U.S. 629 (1883); United States V. Morrison (99-5) 169 F.3d 820; Washington v. Davis, 426 U.S. 229 (1976)
[8] City of Boerne v. Flores, 521 U.S. 507 (1997); Civil Rights Cases, 109 U.S. 3 (1883); United States v. Cruikshank, 92 U.S. 542 (1876); Elk v. Wilkins - 112 U.S. 94, 5 S. Ct. 41 (1884); United States v. Harris, 106 U.S. 629 (1883)
[9] Bush v. Gore, 531 U.S. 98 (2000); Shelby County v.?Holder, 570 U.S. 529 (2013) & McPherson v. Blacker, 146 U.S. 1 (1892)
[10] Justice John Marshall Harlan II Originalist Interpretive Doctrine in "Reynolds v. Sims."?Oyez,?www.oyez.org/cases/1963/23. Accessed 9 Jan. 2022; "Wesberry v. Sanders."?Oyez,?www.oyez.org/cases/1963/22. Accessed 9 Jan. 2022 & GRAY v. SANDERS(1963) https://caselaw.findlaw.com/us-supreme-court/372/368.html
[11] Smith, Hayward, Revisiting the History of the Independent State Legislature Doctrine (September 13, 2021). 53 St. Mary's L.J. (2022, Forthcoming) , Available at SSRN:?https://ssrn.com/abstract=3923205?or?https://dx.doi.org/10.2139/ssrn.3923205
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[1] The right to vote is not in the?Constitution August 26, 2020
After the Civil War, the?15th Amendment, ratified in 1870, guaranteed that the right to vote would not be denied on account of race: If some white people could vote, so could similarly qualified nonwhite people. But that still didn’t recognize a right to vote – only the right of equal treatment. Similarly, the?19th Amendment, now 100 years old, banned voting discrimination on the basis of sex, but did not recognize an inherent right to vote. https://theconversation.com/the-right-to-vote-is-not-in-the-constitution-144531
[2] Jonathan Soros, “The Missing Right: A Constitutional Right to Vote,” Democracy, A Journal of Ideas, Spring 2013, No. 28, https://democracyjournal.org/magazine/28/the-missing-right-aconstitutional-right-to-vote/