Voting: Right or Privilege?

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The Constitution mentions "the right to vote" five times. Judges, and voter ID law proponents, don't seem to be getting the hint.

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Which constitutional right is the most important? You might answer "freedom of speech" or "free exercise" of religion. Some think it's "the right to keep and bear arms." Criminal lawyers think of the guarantee against "unreasonable searches and seizures," trial lawyers of jury trial in civil cases.

But which right appears most often in the Constitution's text?

It's "the right to vote."

In voter ID cases all over the country, courts are considering the proper level of "scrutiny" to apply to "burdens" on the right to cast a ballot. In 2008, the Supreme Court approved an Indiana voter ID law, even conceding that it had a partisan basis, because it was not "excessively burdensome" to most voters. (Justice Antonin Scalia, writing for himself and Chief Justice John Roberts and Justice Samuel Alito, concurred separately to suggest that the proper level of scrutiny was more like "whatever the legislature wants.")

Courts will defer to the wishes of legislators who wish to protect the election process. There was no evidence of fraud in the Indiana case; there's none in the Pennsylvania case or the others currently being heard. State officials claimed to be worried that someone somewhere might think there was fraud.

This is deference to bureaucrats that neither courts nor citizens would tolerate where a right considered truly important is at stake. Consider the right to free speech. The majority in Citizens United brushed aside public perceptions of corruption to allow unlimited "independent expenditures," even though far more citizens are cynical about campaign donations than about "fraudulent" voters. What about freedom of religion? Would we tolerate licensing of churches so atheists won't worry that "fraudulent" religion is being practiced?

Scholars and courts often note that the Constitution nowhere says, "All individuals have the right to vote." It simply rules out specific limitations on "the right to vote." A right not guaranteed in affirmative terms isn't really a "right" in a fundamental sense, this reading suggests.

But if the Constitution has to say "here is a specific right and we now guarantee that right to every person," there are almost no rights in the Constitution. Linguistically, our Constitution is more in the rights-preserving than in the right-proclaiming business. The First Amendment doesn't say "every person has the right to free speech and free exercise of religion." In the Second, the right to "keep and bear arms" isn't defined, but rather shall not be "abridged." In the Fourth, "[t]he right of the people to be secure ... against unreasonable searches and seizures" isn't defined, but instead "shall not be violated." In the Seventh, "the right of (civil) trial by jury" -- whatever that is -- "shall be preserved." And so on.

In those terms, it ought to mean something that the right to vote is singled out more often than any other. Section 2 of the Fourteenth Amendment imposes a penalty upon states that deny or abridge "the right to vote at any [federal or state] election ... to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, ... except for participation in rebellion, or other crime." The Fifteenth states that "[t]he right of citizens of the United States to vote" can't be abridged by race; the Nineteenth says that the same right can't be abridged by sex; the Twenty-Fourth says that "the right of citizens of the United States to vote" in federal elections can't be blocked by a poll tax; and the Twenty-Sixth protects "[t]he right of citizens of the United States, who are eighteen years of age or older, to vote."

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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