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November 10, 2012 10:42 AM For the Good of the GOP and the Nation, Time for a Constitutional Right to Vote

By Ryan Cooper

Julius Malema, via Wikimedia. The sad product of a racialist polity.

The Supreme Court indicated recently it would take up a Voting Rights Act case. Adam Serwer provides some background:

A key pillar of American civil rights law is now in danger of being nullified by the Supreme Court.
Shelby County, Alabama, is seeking to have Section 5 of the Voting Rights Act, the law that first guaranteed the right of blacks in the South to vote, declared unconstitutional. Section 5 forces areas of the country with a history of discrimination—mostly, but not entirely in the South—to ask the Department of Justice for its approval before making any changes to election rules. The DOJ is then supposed to ensure any changes protect Americans’ voting rights. The law has a provision allowing jurisdictions to “bail out,” but conservatives have repeatedly challeged the law as unconstitutional federal overreach that is no longer necessary because America has transcended its history of racial discrimination.

This has been a festering problem in American democracy for some time now. We have constitutional amendments protecting voters from disenfranchisement based on race, sex, age, and non-payment of poll taxes, but no actual affirmative right to vote. This was actually noted in the Bush vs. Gore decision.

The text of a voting rights amendment could be simple, along the lines of other voting rights amendments:

Section 1. The right to vote of citizens of the United States, who are eighteen years of age or older, shall not be denied or abridged by the United States or by any State.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

One could obviously find some partisan grounds to support this, like beating back the voter ID movement or the huge number of African Americans who have lost voting rights on felony disenfranchisement rules. But I think, aside from the obvious civil rights angle, it should also be a measure for the health of the democracy.

Right now the conservative movement looks to be at a watershed. More than ninety percent of Mitt Romney’s voters were white, and he was crushed among all minorities. With the demographic growth of minorities, their electoral disadvantage will only grow. Down one road they could do the long, laborious work of purging their party of white nationalist rhetoric and trying to build a party open to all people. Some of the most prominent conservative leaders seem to be exploring this option—even Sean Hannity has come out in support of immigration reform.

But down another they could look at overwhelming support of Democrats among minorities and simply conclude that they must be disenfranchised. They tried this to a large degree in this election. As Serwer notes:

A cursory review of recent Republican shenanigans with voting rules should put the notion that the VRA is obsolete entirely to bed. With voting growing more racially polarized, the temptations to alter voting rules to disenfranchise particular constituencies is obvious. Indeed, the Department of Justice successfully challenged Texas’ redistricting map because it diluted the voting power of Latinos. If the court strikes Section 5 down, one of the most effective and important powers the federal government has for ensuring that the right to vote is not abridged on the basis of race will be destroyed.

The nature of a two-party system is such that eventually the Republicans will be back in power. If (enabled by the Supreme Court) they indulge their worst instincts and attempt race-based disenfranchisement, it will only worsen the racial divide and make politics even more tribal than today. On the other hand, if the right to vote is placed beyond reach, and Republicans must compete on a level playing field, they will be powerfully incentivized to clean their house of the Kauses and Limbaughs.

When I lived in South Africa (where blacks mostly support the African National Congress while whites and everyone else mostly supports the Democratic Alliance) I saw the way racialist voting (the ANC has won every election since 1994 in a black-rooted landslide) poisoned the discourse, led to galloping corruption, and made good governance nearly impossible. Our discourse, as hysterical and dumb as it can be, is at least directed in the general vicinity of policy. It ought to stay that way.

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@ryanlcooper

Ryan Cooper is a National Correspondent at The Week, and a former web editor of the Washington Monthly. Find him on Twitter: @ryanlcooper

Comments

  • John Sully on November 10, 2012 12:59 PM:

    I would love to see the Republican demagoguery against such an amendment. It would leave no doubt in the electorate's mind as to where they really stand.

    And Freedom!

  • Tomm Undergod on November 10, 2012 1:05 PM:

    Winger "support" for the right to vote is about as credible as their support for actual protection against voter fraud, reducing the deficit, or what the rest of us mean by the closing of tax loopholes.

    That said, is there anywhere a discussion of election demographics four years from now? What will be the change in the number of racial minorities, soi-disant "Christians," women, over-65s, and these "young people today" one hears so much about?

    As the nation becomes less Christianist, less white, and as oldies drop off into the Great Beyond, what is left of the GOPig's shrinking base for them to pander to next time? Someone must have some numbers for these changes, but I've yet to see them discussed except as trends and generalities.

  • c u n d gulag on November 10, 2012 1:18 PM:

    Ryan,
    "Section 1. The right to vote of citizens of the United States, who are eighteen years of age or older, shall not be denied or abridged by the United States or by any State.

    Section 2. The Congress shall have the power to enforce this article by appropriate legislation."

    I would add a 3rd Section:
    Impeding any individual's right to vote, will be considered a Federal Crime, and subject to fiscal penalties, and/or imprisonment, and the loss of that individual's, or the individual's comprising a group, right to vote, for life.'

    You, or your group, want to supress people's rights to vote?
    Fine.

    Here's what happens if you get caught:
    Fines.
    Prison.
    AND the loss of your right vote - for life.

    That might make some people think twice!

  • DJ on November 10, 2012 1:36 PM:

    Notwithstanding Mr. Cooper's proposed Sec. 2, which would empower the Congress to set reasonable penalties, Victor would permanently disenfranchise violators. While murderers who do not receive life sentences (or the death penalty) could have their voting rights returned to them upon completin of their sentences.

    Victor, Victor...if you actually thought before you posted...well, you wouldn't be you.

  • Michael Froomkin on November 10, 2012 1:47 PM:

    It seems to me if we are going to go to the trouble of enacting an amendment, we should also attack gerrymandering, which denies the (meaningful) right to vote to many.

  • c u n d gulag on November 10, 2012 1:56 PM:

    DJ,
    I think most people who committed crimes, once they've paid their debt to society, should get their right to vote returned to them.
    All they stole was some money or property, or committed some other crime that was not willful, pre-planned, murder.

    I'm not sure that 1st degree murderers should have that right returned, even if they do get released. Their victim(s) won't ever have the chance to vote again - or anything else, for that matter. I don't see why they should.
    But I'm willing to listen to reasons why they should.

    But I still think that taking away the right to vote - for life, from people who tried to stop others from voting, is an appropriate punishment.
    If you slap them on the wrist, and tell them they can't vote for a decade or two, or so, I just don't think that is punishment enough. By trying to suppress the votes of others, they show that they fully understand how important the right to vote is.

    But I'm willing to listen to why you think they should have their right to vote returned to them.

    DJ, the fact that I'm willing to listen, and discuss, also makes that me.
    And that's another difference between me and you.
    That, and I try to treat people with some respect, even those I disagree with, and not insult people.
    But then, DJ, if you didn't do that... "well, you wouldn't be you."

    Stay classy, my friend...

  • Frank Wilhoit on November 10, 2012 2:24 PM:

    The language of your proposed amendment is infeasible, as the word "vote" is not defined and the word "abridged" is not defined.

    Is registration an abridgment? I say that it is. Is in-person voting an abridgment? I say that it is. Are closed party primaries an abridgment? I say that they are. Your mileage may vary, but that is the whole point. These things cannot be defined.

  • John Robert BEHRMAN on November 10, 2012 3:59 PM:

    We already have such an amendment, the Second Amendment. The problem is that we do not have and never have had a "well regulated militia": Not like Switzerland in 1789 (universal manhood suffrage) or Israel today.

    The problem in Ben Franklin's day ("a republic if you can keep it") was, of course, slavery. The problem today is "guns" (not arms).

  • Doug on November 10, 2012 4:38 PM:

    I'm sensing some fallacious reasoning here.
    First, what is the black/white ratio in South Africa? What is it here in the US?
    Second, are you positing that because the Democrats receive such a high percentage of the various minorities' support, the DEMOCRATS run the risk of becoming corrupt? Or, more likely, are you trying to say that the REPUBLICANS, in trying to suppress the votes of minorities, will become corrupt?
    Third, while it IS true that that more than 90% of Romney's support was white, that was of those whites who voted, NOT the majority of whites in this country. The groups overlap but aren't the same.
    Fourth, many of those white voters will not be with us all that much longer and aren't being replaced as they depart; viz. Lindsay Graham's "angry white men" remark.
    Finally, The best way I can think of to defeat the various Republican attempts to suppress voters is to just out-vote them. We know what new voter ID requirements will be going into effect for the next election cycle so - wherever possible meet those requirements. For those voters who have already been voting but are unable, for whatever reason, to meet the new requirements needed by providing necessary documentation, I'd suggest legal action on the state and Federal level first.
    There are several groups that helped GOTV in this past election and I would think assisting voters in getting their new, Republican-required, voter IDs would be right up their alley. Not to mention keeping those would-be voters involved for the mid-terms.
    How many times do we want to apply "Hoist by their own petard" to the Republicans? Can I have a show of hands?

  • brett coster on November 10, 2012 10:06 PM:

    Wouldn't one quick and easy way be to declare the first Tuesday of Novemeber a National public holiday, say "Voting Rights Day"? Here in Melbourne Australia we have a public holday on that day for a 3 1/2 minute horse race, surely the right to vote demands at least the same level of public commitment?

    Every 2 years, citizens would have time off to go to the polls, on any years that don't have elections, well, it's a day to celebrate voting.

    In Aus voting is always held on Saturdays, and yes, it's compulsory as it's a responsibility as well as a right, and it is made as easy as possible for us all to do so.

  • Altoid on November 10, 2012 10:50 PM:

    Actually, I'd favor a shortened version of the 15th amendment: 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state. Full stop. "Denied" and "abridged" would be subject to adjudication, as would any other terms we used, but since they're already constitutional language there's a basis for further adjudication.

    I kind of agree with Michael-- may as well try to address districting-- though maybe a law addressing that as part of the time and manner of holding elections could do the trick? Could be too much of a stretch, though. It would be complicated because of current legal requirements about minority representation. I do think any federal election law should require a paper ballot to be marked by voters or a paper receipt to be produced by machines so there'll always be something tangible and visible to verify and count. The machines we use in my part of PA don't do this now so a "recount" is meaningless.

    In Canada, and I'd guess Australia too, the government is responsible for locating and listing all eligible voters. In Canada it's done by returning officers. They use paper ballots there and usually have them counted within a few hours. It isn't rocket science, it just costs cost money to hire the people to do the work.

  • Altoid on November 10, 2012 11:08 PM:

    Just to clarify, my basic point is that I don't see a need to repeat the age qualification since it's already in the 26th amendment and not controversial. That amendment's wording is kind of awkward, and with something that's sure to be litigated, simpler and more direct seems less open to problems. So my suggestion would be to go back to the 15th amendment, especially if it's been construed in a way that's friendly to the intent here.

  • Davis X. Machina on November 11, 2012 10:15 AM:

    ...forgive me, but what is the purpose of the amendment, other than emotive? What will it change?,/i.

    Nothing. But it makes a statement. It sends a message. And that's what politics is all about.

    Except for Bush v. Gore -- and that result was fixed going in -- I'm hard-pressed to think of a case where its absence has been mentioned, never mind mattered...

    There's 42 USC 1983 out there, providing damages for the violation under color of law for all sorts of unenumerated rights....

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  • James on November 11, 2012 12:05 PM:

    I think I'd add another section to your amendment text:

    Section 1. The right to vote of citizens of the United States, who are eighteen years of age or older, shall not be denied or abridged by the United States or by any State.

    Section 2. All votes cast in federal, state, and local elections must have some kind of physical verification, available to the voter at the time of voting. to election officials for purposes of counting or recounting, and for public verification, retained by officials for no fewer than 28 days after the election.

    Section 3. The Congress shall have the power to enforce this article by appropriate legislation.

    I don't generally buy the "electronic voting machines stole my vote!" arguments from either side of the aisle, but it seems to me that bringing everything out into the open and requiring a paper trail will guarantee that there are no shenanigans, and more importantly reassure the public that there are no shenanigans.

    If I were being really ambitious, I'd add yet another section (a la Rick Hasen) requiring that elections be administered by nonpartisan career civil servants rather than partisan appointments... but that might be a bit too high a bar for a constitutional amendment.

  • shk on November 11, 2012 1:57 PM:

    "Nothing. But it makes a statement. It sends a message. And that's what politics is all about."

    Amenidng the constitution for strictly symbolic reasons sets a terrible precedent that is sure to be used by our adversaries.

  • bcamarda on November 12, 2012 5:59 PM:

    Isn't Kaus officially still a Democrat for some reason? Last I looked he was running in Democratic primaries...

    http://en.wikipedia.org/wiki/Mickey_Kaus