What Does the Constitution Actually Say About Voting Rights?

Or, how the Shelby ruling is like starving a dog to death
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Keith Bedford/Reuters

Since the Supreme Court's 5-4 decision in Shelby County v. Holder in June, conservative governments in the South and elsewhere have raced to introduce new voting restrictions. Most prominent in the attacks is the comprehensive vote-restriction law passed by the Republican majority in the North Carolina legislature. The law cuts back early voting, restricts private groups from conducting voter-registration drives, eliminates election-day voter registration, and imposes the strictest voter ID rules in the country. There is evidence that Republican legislatures elsewhere will follow North Carolina's lead.

Neither the American people nor the federal courts would tolerate restrictions of this sort if they were imposed on free speech, free assembly, freedom of religion, or freedom to petition government for redress of grievances. For that matter, many Southern states--and probably a majority of the Supreme Court--would reject far less onerous restrictions on the right to "keep and bear arms." Yet each of those rights is mentioned only once in the Constitution. The "right to vote" is mentioned five times--and yet the Court has brushed it aside as a privilege that states may observe at their convenience. Even an overwhelming majority of Congress--which is given the power to enforce the right in no fewer than four different places in the Constitution--cannot protect this right more strongly than the Court feels appropriate.

What would happen if we took the Constitution's text on this matter seriously?

Consider this instruction to a house-sitter: "Don't let the dog out at night. Don't feed the dog dry food." The homeowner returns six weeks later to find the dog dead of starvation. The house-sitter explains, "You never said there actually was a dog or that if there was one I should feed it, just that I shouldn't let it out or feed it dry food. I did neither."

Would that explanation satisfy the owner?

Well, many of our most cherished rights are guaranteed in the kind of language the homeowner uses. For example, the First Amendment does not say, "everybody has freedom of speech and of religion"; it prohibits Congress from making laws infringing on religious freedom and our freedom of speech. But you would not say that it does not guarantee free speech and religion.

What, then, about the right to vote? The phrase appears for the first time in the Fourteenth Amendment, which says that states shall lose congressional representation "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." 

But whatever Section Two of the Fourteenth Amendment means, it really can't mean that everyone must be allowed to vote. It penalizes states that withhold the ballot but does not require them to grant it. The Fifteenth Amendment, however, does speak specifically of "the right of citizens of the United States to vote.

In this form, it will appear a total of three more times, each time now protected against abridgment, as an individual right "of citizens," one that can be enforced by both courts and Congress. Yet courts and citizens remain oddly am- bivalent about it; it is common to regard voting as a "privilege," an incident of citizenship granted to some but not all. The "privilege" over the years has been made dependent on literacy, or long residency in a community, or ability to prove identity, or lack of a criminal past. None of these conditions would be allowed to restrict free speech, or freedom from "unreasonable" searches, or the right to counsel, even though each of those rights is mentioned once in the Constitution. The right to vote of citizens of the United States remains a kind of stepchild in the family of American rights, perhaps because it is not listed in the Bill of Rights, and perhaps because Americans still retain the Framers' ambivalence about democracy.

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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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