The Right to Vote and the Constitution

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August 31, 2024?

“The ignorant and the dependent can be as little trusted with the public interest as could children” Gouverneur Morris, the New York Founding Father who wrote the preamble to the Constitution. “The proportion being without property, or the hope of acquiring it, cannot be expected to sympathize sufficiently with its rights to be safe depositories of power over them.” James Madison, 4th President of the United States

This week Texas Governor Greg Abbott announced that 1 million people were removed from the Texas voter rolls. Of this number, about half had moved out of the state. Only 7,000, or less than 1 percent of this amount, were determined by Texas to be noncitizens. ?However, over 460,000 did not respond to a form mailed to all Texans attempting to determine their eligibility. It is this later group that is extremely problematic. ?

Approximately 11.2 million Texans voted in the 2020 presidential election. Trump garnered 5.9 million of those and Biden won 5.3 million Texans’ votes. To remove almost half a million voters because they did not respond to what must have looked like political junk mail seems like an unnecessarily harsh punishment. If this scrubbing of the rolls is not reversed, or if those removed are not duly notified, it may lead to confusion, acrimony, and possibly violence on election day when those “ineligible” Texans show up to cast their ballot and are denied that right.?

In July, Georgia’s Secretary of State announced plans to strike 192,000 names from the state’s voter rolls before the 2024 election. Most of these potential voters will lose their right to vote because they have not voted in two consecutive general elections and have not updated their registration status.?

In June, the Arizona Republican Party filed a lawsuit asking the courts to purge 500,000 Arizonans from the voting rolls. And last week, the U.S. Supreme Court granted an emergency stay limiting Arizonans’ ability to sign up to cast ballots without providing proof of citizenship.?

These actions led me to consult the single most important authority on the rights of American citizens – the U.S. Constitution. However, to my great surprise, after rereading the Constitution and reading what Constitutional scholars have written about voting and the Constitution, I learned that the Constitution is, at best, unclear about voting rights for American citizens. ?

The original Constitution defers to state laws on voting and says only that those eligible to vote for a state’s largest legislative body are eligible to vote for members of the House of Representatives. It was not until the 17th Amendment became effective in 1918, that citizens could vote directly for U.S. Senators. Until that time the state legislators choose their state’s Senators. Both in the North and in the South, states restricted the franchise based on race, gender, property ownership, poll taxes, and literacy.?

Today’s Republican party is attempting to roll back voting rights in their states because they fear, one person – one vote. The current configuration of the Republican Party’s policy positions are views held by only a minority of Americans. The only ways for Republicans to win power is to either minimize the franchise for citizens who do not support their unpopular policies, or to change those policies. The Republicans have identified those least likely to support their candidates as Black Americans, Hispanic Americans, urban Americans, union members, young people, and women. Their meat cleaver approach to restrict the vote is designed to eliminate as many of these voters as possible.?

The 2020 presidential election was one of the closest races in history. In five battleground states, only 278,792 votes separated Biden from Trump; Georgia (11,779), Arizona (10,457), Pennsylvania (81,666), Wisconsin (20,702), and Michigan (154,188). It is only because of the anachronistic and anti-democratic Electoral College that it is possible for a limited number of states to have this disproportionate power to determine the outcome of the presidential election. Biden won the popular vote by over 7 million votes nationally in 2020. It is ironic that only in this most important of elections that we trust American voters the least. This is not how we elect Senators, Congresspeople, mayors, governors, or dog catchers.?

Republican efforts in Texas, Georgia, Arizona, and in other states to restrict the franchise is Trump’s best strategy to win the White House in 2024. Americans must ask ourselves a very simple yet profound question: Do we trust the majority??

I have no objection to purging voter rolls if the goal is to limit the franchise to American citizens. But we need national legislation to address the differences across states. Fortunately, there are two well written and reasoned pieces of legislation: the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. The Lewis Act, which passed in the House of Representatives, reverses Supreme Court actions that neutered provisions in the 1965 Voting Rights Act requiring former Confederate states to get “preclearance” before changing their voting laws. It is because of the Supreme Court’s ruling in the Shelby County v. Holder case (2013) that former Confederate states have initiated the voting restrictions that are being implemented in Texas, Georgia, and Arizona. The Freedom to Vote Act would create uniform rules and protections for voters with disabilities, voter validation, voter registration, voter purges, redistricting rules, voter rights restoration, same day voting rules, mail in and online voting and other measures that should be consistent across all states.?

American democracy has come a long way since the signing of the Constitution on September 17, 1787, but we still have much progress to make. We do not want to go back to the voting rights views of Morris or Madison. Hopefully, the 2024 election is the last election where the disenfranchising actions of Texas, Arizona, and Georgia are legal.?

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