Resources Reform Library Right to Vote Amendment

Right to Vote Amendment

Voting is an American principle and a basic democratic right that should be protected, promoted, and practiced, which is why many people are surprised to learn that the U.S. Constitution provides no explicit right to vote. This leaves voting rights vulnerable to the whims of politicians, and some citizens with fewer rights than others.

More than a decade ago, FairVote became the leading institutional voice calling for the establishment of an explicit individual right to vote in the U.S. Constitution. We believe that a grassroots movement to establish such an amendment would go a long way in ending the "voting wars" that plague us today. FairVote continues to serve as a trusted resource in support of activists, organizations, and elected officials working toward a right to vote amendment. Through our Promote Our Vote project, we work to build widespread support for a right to vote amendment, while advocating for pro-suffrage innovations at the local level.

Why We Need a Right to Vote Amendment

Even as the rising American electorate gains momentum, new regressive laws, rulings, and maneuvers are threatening voting rights without facing the strict scrutiny that would come with an affirmative right to vote in the Constitution.

In 2013, the Supreme Court struck down Section 4 of the Voting Rights Act (VRA), stripping the Justice Department of the powers it had for five decades to curb racial discrimination in voting. The Election Assistance Commission was left without commissioners for years and frequently faces bills in Congress that would end its existence entirely. Many schools skip civics education, contributing to the decline in voter turnout in local and primary elections.

Enshrining an explicit right to vote in the Constitution would guarantee the voting rights of every citizen of voting age, ensure that every vote is counted correctly, and defend against attempts to effectively disenfranchise eligible voters. It would empower Congress to enact minimum electoral standards to guarantee a higher degree of legitimacy, inclusivity, and consistency across the nation, and give our courts the authority to keep politicians in check when they try to game the vote for partisan reasons.



The Constitution has been amended 27 times. Excluding the Bill of Rights, 7 of the last 17 constitutional amendments have dealt directly with expanding the franchise and improving the way citizens vote.

Contrary to popular belief, there is not an affirmative right to vote in the U.S. Constitution

While the U.S. Constitution bans the restriction of voting based on race, sex and age, it does not explicitly and affirmatively state that all U.S. citizens have a right to vote. The Supreme Court ruled in Bush v. Gore in 2000 that citizens do not have the right to vote for electors for president. States control voting policies and procedures, and as a result, we have a patchwork of inconsistent voting rules run independently by 50 states, 3,067 counties and over 13,000 voting districts, all separate and unequal.

Millions of Americans are permanently barred from voting

Approximately 5 million Americans convicted of felonies who have already completed their sentences are permanently disenfranchised. Fourteen states do not have an automatic restoration process in place for returning citizens who have completed their sentences. Some states like Florida leave re-enfranchisement decisions to the discretion of public officials, discretion which could be exercised arbitrarily or used for political gain.



However, it is not only ex-felons who face difficulty registering to vote. Americans living overseas have trouble registering in their home district, because their state may not consider them residents anymore. Many college students attempting to register at their college precinct have faced voter intimidation or were simply refused the ability to register to vote. Such obstacles are not only arbitrary, but in many cases politically motivated.



The Right to Vote Amendment will guarantee all American citizens at least 18 years of age a constitutionally protected individual right to vote. Much like the rights to speech and religion, a constitutionally protected right to vote will be difficult to limit without showing a strong need for the limitation to exist.

State authority over voting creates unnecessary voting difficulties

Voting should be a simple process in which any registered citizen can easily participate. However, this is not always the case. Voter identification and registration requirements, as well as the machines that voters use, vary widely between states. States and counties design their own ballots, pursue their own voter education, and have near-complete authority over their state voting policies and procedures. With over 10,000 different jurisdictions, voters and potential voters are much more likely to cast a counted vote in some states, some counties, and some areas of the country than others, simply based on the difference in standards for each election. Elections in many states are rife with lost and incorrectly counted votes, and many voters are incorrectly told that they cannot cast a ballot.

Since voting is regulated by the states, there is little the national government can do if voters are intimidated or harassed at the polling booth. With the Supreme Court's 2013 decision to strike down section 4 of the Voting Rights Act, and Congress's unwillingness to act to restore key components of the Act, a Right to Vote Amendment is needed to further enforce voting rights.

Congress is powerless to set national standards

At present, Congress can take no action to formally help improve voting standards across the nation. While the Help America Vote Act (HAVA) of 2002, which passed in response to the voting fiasco of the 2000 presidential elections, does establish some standards including a provisional ballot, states are not required to follow these policies. The only way to ensure that every vote is counted and that electors follow the will of the people of their state is to create a constitutionally protected right to vote. The Right to Vote Amendment will give Congress the authority to protect the individual right to vote and oversee voting policies and procedures to ensure that elections are fair, accurate and efficient.

The Bill: House Joint Resolution 74

U.S. House Members Mark Pocan, among a number of other co-sponsors, has shown great leadership in introducing House Joint Resolution 74 (H.J. Res. 74), a bill that would establish an explicit right to vote in the Constitution. Read FairVote's policy brief on the right to vote amendment. See the text of the bill below:

SECTION 1. Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides. SECTION 2. Congress shall have the power to enforce and implement this article by appropriate legislation.

Right to Vote Resources

Links

RightToVoteAmendment.com - FairVote's resource hub on the Right to Vote Amendment

PromoteOurVote.com - FairVote's project to advance suffrage and civic engagement in communities in the spirit of a constitutionally guaranteed right to vote

FairVote Policy Brief on the Right to Vote Amendment

Publications

The Missing Right: A Constitutional Right to Vote, by Jonathan Soros and Mark Schmitt (Democracy, Spring 2013)

Time for a 'Right to Vote' Constitutional Amendment, by John Nichols (The Nation, March 2013)

Right to Vote, by Jamie Raskin (The American Prospect, August 2001)

Guarantee the Right to Vote, by John Nichols (The Nation, December 2004)

Speeches

Reverend Jesse Jackson addresses the NAACP Convention in Philadelphia, PA July 14, 2004

Academic Papers

The International Status of the Right to Vote, by Alexander Kirshner, provides an overview of the right to vote in countries around the world and how laws are interpreted

The political and organizational dynamics of constitutional suffrage movements in U.S. history: The experience behind the 15th, 19th, 23rd, 24th and 26th amendments, by Alex Keyssar, Kennedy School of Government

Election Reform and the Right to Vote, by Anita S. Earls, Director of Advocacy, UNC Center For Civil Rights, explains the limits of HAVA and what Congress can do to establish a right to vote.

A Right To Vote Amendment To The Constitution: Confronting America's Structural Democracy Deficit, by Jamie Raskin, Professor of Law, American University, Washington College of Law - Includes a discussion of the impact of states constitutional provisions of the right to vote; impact of different formulations of the right-to-vote amendment; and whether a right to vote vote amendment might provide a legal means to pursue reforms such as election day registration.

A legislative and national political strategy for a right-to-vote amendment during the 2004 presidential election and beyond, by Steve Cobble, Institute for Policy Studies

The Constitutional Right to Vote, by Ron Walters calls for a right to vote amendment by detailing the problems that minorities faced in the last election.

Why Americans Need a Constitutional Right to Vote for Presidential Electors, by Demetrios James Caraley, discusses the legal implications of a system that does not constitutionally guarantee the right to vote.

Reports

In Pursuit of an Affirmative Right to Vote (July 2008) is an analysis by the Advancement Project on the importance of enshrining the right to vote in the U.S. Constitution.

History of the Right to Vote

Throughout the history of the United States, voting rights have been expanded repeatedly by Constitutional Amendments and legislation. When the Constitution was written, most of the Framers did not believe in universal suffrage. However, as we have progressed as a society, traditionally disenfranchised groups, including women and racial minorities, have received voting rights through Constitutional Amendments. Of the 17 Amendments ratified since the Bill of Rights in 1791, seven have expanded voter eligibility or increased democratic participation. Enshrining an affirmative Right to Vote in the Constitution would be one more step toward universal suffrage and equal voting rights for all.

The History of Voting Rights (PDF)

FairVote's "Promote Our Vote" Project

At the local level, FairVote rallies support for a constitutional right to vote through its Promote Our Vote Project, a pilot program most active in Maryland. Its unique change platform works in partnerships to advance resolutions at the organizational, campus, and local level in support of an explicit right to vote in the U.S. Constitution, and concrete changes in practices and policy to ensure fair and equitable voting rights. The program’s leadership consists of two dozen voting rights experts and advocates.

Maryland Resolutions

Based in Maryland, FairVote’s Promote Our Vote Project has worked with local elected officials to build support for city and county right to vote resolutions.

Montgomery County, Prince George’s County, and the City of Takoma Park have each passed resolutions calling for an explicit right to vote in the constitution and other national voting rights policy changes, such as the passage of the Voting Rights Amendment Act.

These localities have a collective population of approximately two million residents.

Montgomery County and Takoma Park resolutions paved the way for right to vote task forces to make policy recommendations and produce reports for recent municipal elections.

Additional Maryland cities are considering concrete policy ideas focused on increasing civic engagement and voter turnout.

Florida Resolutions

FairVote’s Promote Our Vote Project provides services to partners in Florida as they advance right to vote resolutions across the state.

The University of Florida and Palm Beach State College passed right to vote resolutions through their student governments.

These universities have a combined enrollment of over 70,000 students.

These resolutions supported a national and state right to vote. They also sought practices and policies that improve the voting process for students.

FairVote’s Promote Our Vote Project worked with Florida New Majority to introduce and successfully pass a right to vote resolution in North Miami.

FAQ

I have never had a problem voting. Don’t we already have a right to vote?

American adults living in states typically can vote, but they do not have a federally protected right to vote enshrined in the Constitution. States protect the right to vote to different degrees based on the state’s constitutional language and statutes. The federal government traditionally only steps in to prevent certain broad abuses, such as denying the right to vote based on race (15th Amendment), sex (19th Amendment), or age (26th Amendment).

In most states, counties design their own ballots, pursue their own voter education, have their own policies for handling overseas ballots, hire and train their own poll workers, select polling place locations, and maintain their own voter registration lists. States have wide leeway in determining policies on absentee voting, polling hours and funding of elections. As a result, voters and potential voters have different experiences going through the registration and voting process depending on where they live. These differences can be even more pronounced in some local elections because of varying degrees of federal and state support.

States also currently have the power to explicitly limit the franchise. Current data shows states have chosen to deny nearly six million American citizens the right to vote because of felony convictions, including millions who have completely paid their debt to society. Some states even deny certain classes of overseas voters the right to vote.

Don’t citizens have a right to vote in presidential elections?

Not necessarily. Article II of the Constitution reads in part: “Each state shall appoint, such manner as the legislature thereof may direct, a number of electors…” In other words, it is the state legislature and not the citizens of a particular state that determine which presidential candidate receives that state’s electoral votes. In the early decades of the country, several state legislatures actually appointed electors to the Electoral College, rather than hold popular elections in their state. In the 2000 Bush v. Gore decision, five justices declared, “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.” The Court went on to say that Florida’s legislature has the power to take that power away from the people at any time, regardless of the popular vote tally.

In addition, it took a constitutional amendment in 1961 to enable residents of Washington, D.C. to vote for president. But the millions of American citizens living in territories like Puerto Rico, the Virgin Islands, and Guam still cannot vote for president.

What administrative problems do we have with voting in the United States and how will a constitutional amendment help?

Without national standards, states are free to create their own voting policies and procedures, which can limit or restrict a citizen’s ability to vote. Only clear standards will ensure that every vote counts. States would be held accountable for running fair elections, and the federal government would be responsible for ensuring that funds were available to meet those high standards.

According to a study of the 2008 presidential election produced by the Cooperative Congressional Election Survey, led by the Massachusetts Institute of Technology, 2-4 million registered voters were “discouraged” from voting because of administrative hassles, such as long lines, voter identification, and problems obtaining an absentee ballot. The same study reports an estimated 9 million eligible people attempted to register but failed due to voter registration barriers like missed deadlines and changes of residence. A Constitutional Right to Vote will give Congress broad discretion in setting standards to ensure greater equality in election administration.

What groups of Americans would be protected by a right to vote amendment?

Legislation to establish a right to vote states that all American citizens who are of voting age have an individual right to vote “in any public election held in the jurisdiction in which the citizen resides.” The federal government would protect this individual right to vote, thus making it more difficult for states or localities to disenfranchise groups or maintain procedures that make it unnecessarily difficult for citizens to vote. It would enfranchise all those who had been stripped of the right to vote due to a felony conviction and would pave the way for voters in Washington, D.C. to vote for a federal representative and Senators. In general, it would create more ways for individuals to ensure that their county and state use procedures that give citizens’ the ability to vote.

Will citizens in the territories (Puerto Rico, Virgin Islands and Guam) be able to vote for president?

At present, residents of Puerto Rico, the Virgin Islands, and Guam are all citizens of the U.S. They pay taxes and can be drafted into the military, but do not vote for president. While this amendment would not specifically give citizens of the territories the right to vote automatically, it does open the doorway for them to gain the ability to vote for president.

What about American Samoa?

Residents of American Samoa are not actually American citizens; they are nationals. Current legislation to establish a right to vote specifies that only American citizens would have a right to vote, so nationals would not be included.

Will non-citizens and 16-year-olds be able to vote?

Under this amendment the decision about expanding the franchise to non-citizens and 16- and 17-year-olds would remain within states’ jurisdiction.

Does the amendment get rid of the Electoral College?

The amendment does not specifically comment on the Electoral College. However, by declaring that every U.S. citizen has a constitutional right to vote, it does lay the groundwork for an argument against the Electoral College. But if the Electoral College remains, the amendment would bind state legislatures to appoint presidential electors based on the popular vote of the people.

How is this amendment different from the Help America Vote Act (HAVA)?

The Help America Vote Act of 2002 was a statute passed in response to the Florida election debacle and the systemic voting irregularities seen across the country after the 2000 presidential election. This act establishes some helpful standards. For example, it includes section on provisional ballots that allows a person to cast a vote if the person believes he or she is registered but does not appear on the voter register of that precinct. However, HAVA falls short because it does not set guidelines for how those provisional ballots should be counted.

Furthermore, the Act does nothing for the millions of Americans who are permanently disenfranchised in a dozen states because they are ex-felons. It does not prevent states from wrongly purging voters or engaging in other activities that limit the franchise. Fundamentally, it does not grant a right to vote. States still have the authority to direct electors to vote for a candidate of the legislature’s choice. A constitutionally protected right to vote is the only means to ensure that every American will be protected.

Does the amendment guarantee statehood for Washington, DC?

The Right to Vote Amendment does not specifically call for statehood for Washington, D.C. and its half million residents. However, the amendment does guarantee that all Americans who reside in our nation’s capital have a constitutionally protected individual right to vote, which could lead the way to full representation in Congress.

Is the right to vote a partisan issue?

No. The Supreme Court and many of our leaders from across the spectrum have affirmed the importance of the right to vote. Some may mistakenly believe that the amendment takes authority away from the states and moves it to the federal level, but in fact the amendment only ensures states meet certain clear standards in how they protect the right to vote. By ensuring that every American has an individual right to vote that is protected by the Constitution, this amendment establishes voting as an individual right, not just a privilege given by the states.