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A Federal Right to Vote: Fundamental, but Unofficial

by Paul Fidalgo // Published July 16, 2009
Voting rights have been a frequent subject of discussion during the Sotomayor hearings in the Senate, and likely more so than might otherwise be the case following the Supreme Court's recent ruling on NAMUDNO (see the FairVote blog's coverage of that decision here). What strikes me in perusing some of the hearing's transcripts is how often the right to vote is taken to be a given, a hard and fast guarantee. For example, while being questioned by Sen. Ben Cardin on the subject of what he called her "passion" for equal voting rights, Judge Sotomayor said [emphasis mine]:
When we speak about my passion, I don't think that the issue of guaranteeing each citizen the right to vote is unique to me or that it's different among any senator or among any group of people who are Americans. It is a fundamental right. And it is one that you've recognized, Congress has addressed for decades and has done an amazing job in passing a wide variety of statutes in an effort to protect that right.
"It's a fundamental right." I certainly wouldn't dispute that notion on principle, nor would almost anybody, but a point so often missed is that this fundamental right is not so fundamental that it has been enshrined in the U.S. Constitution. As we at FairVote so often find ourselves pointing out, there is no federal right to vote spelled out in the Constitution--that voting rights are today dependent upon the states. What the Constitution does spell out is that existing voting rights cannot be revoked due to one's biological identity. The language, for example, in the 15th Amendment says:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
You hear that? No abridging! But there is no amendment that says anything like, "Oh, and by the way, every citizen of the United States has the right to vote to begin with." Crucial and monumental as amendments like the 15th and 19th are, they only tell us when we can't take the right away, which only somewhat implies that such a right might exist. But if it does exist, it exists at levels below the federal, and the result is something like 13,000 miniature democracies all across the country, all with their own rules about who can and can't vote, how elections should be run, and what kind of voting systems they will use.

The Supreme Court has said as recently as 2000's Bush v. Gore, "The individual citizen has no federal constitutional right to vote for electors for the President of the United States." So just in case you were wondering, the Supreme Court is well aware that you don't have a constitutional guarantee to enfranchisement.

I'm pretty sure Judge Sotomayor knows this, too. But it is telling that even at this level of scrutiny, when we prepare to place a new justice on the bench for a lifetime appointment, the rhetoric being used still takes for granted something that only exists as an ideal, not as an enumerated right.

FairVote supports a constitutional amendment enshrining an affirmative right to vote, and you can read more about that here, and read a proposed amendment here.