There is no constitutional right to vote. There should be.

You have no constitutional right to vote.

Such a bald statement undoubtedly will come as a surprise to some readers, who may have thought that voting is pretty fundamental to a democracy. And indeed there are a variety of places where the Constitution presumes such a right.

The 15th amendment forbids abridgment of that right on account of race, color, or previous condition of servitude. The 19th forbids abridgment on account of sex; the 24th on account of failure to pay a poll tax; and the 26th on account of age if the person in question is at least 18 years old. And Article IV of the Constitution requires the United States to guarantee to every state a republican form of government, which surely means that no state can do away with voting altogether.

Moreover, the United States Congress has repeatedly enacted legislation to prevent voter disenfranchisement. The best-known such law was the landmark Voting Rights Act of 1965, but further efforts to protect and expand the franchise were enacted through the National Voter Registration Act of 1993 (NVRA), which explicitly aimed to increase voter registration and generally ease participation in elections.

All of these constitutional provisions and subsequent legislation appear as if they were built on a right that lies at the foundation of our constitutional order. But that is not the case. The foundation simply isn’t there. While the right to vote is presumed in a variety of ways, and, if it exists, may not be infringed for a variety of reasons, the right itself is never specified as such.

The provisions of the NVRA were specifically the subject of the most recent Supreme Court decision on voter rights, Husted vs. Randolph Institute, which critics of the decision claim has effectively gutted the law. But the decision itself and the law it either gutted or simply enforced as written cannot be properly understood without recognizing the wide-ranging consequences of that curious constitutional omission.

At issue in the case was an Ohio law aiming to remove ineligible voters from the rolls by the following procedure: If a registered voter did not vote in a federal election in two years, the state would send a postcard to the person in question at their registered home address asking them to affirm their continued residence. If the person in question did not return the card, or otherwise establish the validity of their registration by, for example, updating their information electronically, nor vote in the subsequent four years, the state would presume they had moved and they would be removed from the voter rolls.

The NVRA explicitly allows for the removal of non-residents from voter rolls, and for sending registered voters a card that they have to send back in order to maintain their presence on the rolls. The Ohio law was assiduous in modeling itself on the requirements of the NVRA in that regard. But the NVRA also specifies that voters cannot be removed from the rolls for not voting. The question in the case was …read more

Source:: The Week – Politics


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