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."

So if our courts treat the ballot as less than a fundamental right, they aren't reading that in the Constitution, but projecting it onto the Constitution. The projection comes from a longstanding belief that the vote is not a "right," but a "privilege" -- something granted by the powerful to the deserving.

The "privilege" theory is one the United States regards as dangerous -- when practiced by other countries. After World War II, we imposed a constitution on Japan providing that "universal adult suffrage is guaranteed." The "Basic Law" of Germany gained a provision that "[a]ny person who has attained the age of eighteen shall be entitled to vote." The citizens of Afghanistan "have the right to elect and be elected." Article 20 of the 2005 Constitution of Iraq provides that "Iraqi citizens, men and women, shall have the right to participate in public affairs and to enjoy political rights including the right to vote, elect, and run for office."

Americans are more conflicted about our own voters than about those in Iraq or Germany. Eric Foner, DeWitt Clinton Professor of History at Columbia University, told me that since the country's founding, Americans have been torn between "voting as a right and voting as something that only the right people should do." Every step forward in human rights has given birth to a desire to "purify the electorate." Some Northern Republicans wanted to exclude "disloyal" pro-Southern Democrats and newly arrived immigrants from the ballot; Southern Democrats were adamant that freed slaves should not vote. As democratic devices like the referendum and initiative took hold in the 20th century, the pressure to purify grew. "The more you enhance the power, the more you want to make sure the right people vote," Foner said.

Harvard Professor Alex Keyssar, author of The Right to Vote: The Contested History of Democracy in the United States, noted that the current moment bears a strong resemblance to the late 19th and early 20th century. Like the 1960s, the post-Civil War period brought an extension of the vote. In the generation following, "you have close national elections and a lot of competition -- and very, very high levels of immigration coming decades after the barriers to the vote have been lowered," he said. Even progressive reformers supported devices to make sure "ignorant" votes didn't swamp those of the educated. In some states, naturalized citizens were required to bring their naturalization papers to the polls, he noted; Northern states instituted literacy tests just like Southern ones.

The demographic panic of that era led by 1920 to a cutback on immigration and a crackdown on dissent. That same panic is loose today in a number of state capitals, as the population grows less white, less Anglophone, and less Christian. "Real" Americans -- who tend to vote Republican -- are afraid of being swamped by ethnic, religious, and racial "minorities." Those votes look might fraudulent all of a sudden.

Eric Foner notes that Americans like to regard our history as a steady, if slow, forward march for democracy. The reality is much more complex. "It's not just a story of expanding the right to vote. It has expanded and contracted," he says.

We may be living in one of the periods of contraction. If so, we should be aware that we are turning away from the text of our own fundamental law, from the only just basis for self-government, and from the standards of human rights Americans have tried, sometimes by force of arms, to impose on the rest of the world.

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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, and is the author of American Epic: Reading the U.S. Constitution.

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