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Why the right to vote is not enshrined in the Constitution

How voter suppression became a political weapon in American politics.

Javier Zarracina/Vox

The Founding Fathers made a lot of mistakes when they drafted the United States Constitution. Some of these were the result of extremely difficult compromises, and some of them were just, well, mistakes.

The biggest and most consequential mistake, one could argue, was the decision not to guarantee the right to vote to anyone. Suffrage was treated as a privilege reserved exclusively for property-owning white men, but it was not enshrined as an inalienable right in the Constitution.

Instead, these men placed power in the hands of the states, which is one reason the right to vote in the US has expanded and contracted over time with continuous battles over voter ID laws, literacy tests, poll taxes, and other measures designed to keep specific groups, like women and African Americans, from voting.

It’s difficult to overstate the price — moral and political — we’ve paid for this mistake. But a new book by American University history professor Allan Lichtman does a nice job of explaining it. The Embattled Vote in America is a sweeping look at the history of voting rights in the US, focusing on the constant struggle to extend suffrage in this country.

I spoke to Lichtman recently about how voting restrictions put American democracy at risk, why the right to vote is so important, and what we can do to solve this problem once and for all.

A lightly edited transcript of our conversation follows.

Sean Illing

The men who drafted the Constitution made a deliberate choice to not establish voting as a fundamental right. Is that the biggest mistake they made?

Allan Lichtman

I think so. Voting, even to this day, is not guaranteed like other basic rights, such as freedom of speech, or the right to petition, or the right to a jury trial. And this mistake by the framers was compounded by subsequent constitutional amendments, because all of those amendments are defined in negative terms.

Sean Illing

Can you explain what you mean by “negative terms”?

Allan Lichtman

I mean the amendments are phrased in terms of what states can’t do. For example, states can’t deny the right to vote according to race, or age, or gender. But none of these amendments established any kind of an affirmative right to vote. So our right to vote today is on very fragile grounds, and although we don’t have the flagrant acts of voter suppression we had in the past, there are still many subtle and powerful forms of denying people the right to vote, which I’d argue is the right that grounds all other rights.

Sean Illing

The framers understood that voting was the basis of every other political right, so why not enshrine it into the Constitution?

Allan Lichtman

They had a very restrictive 18th-century view of voting. In fact, they believed that voting should be restricted to those who held property or, at a minimum, paid taxes. Only those persons of means — in those days, white men — in their view had the independence and the strength of mind to vote wisely and correctly.

So the real debate was not over whether there should be a constitutional right to vote but over whether they should put into the Constitution economic qualifications for voting.

They decided not to because they didn’t want to infringe on the discretion of the states. Because they knew that to get the Constitution established, three-quarters of the states at minimum had to ratify it, so they defaulted to the states when it came to voting rights.

Sean Illing

As a consequence of that decision, the right to vote has changed over time, and it’s generally expanded to include more and more people. Where do we stand today?

Allan Lichtman

I think we are in a period of backsliding. We don’t have the gross denials of the right to vote that we once did in this country. But we have newer and more obscure forms of voter disenfranchisement.

Sean Illing

What is the single greatest threat to voting rights today?

Allan Lichtman

It’s voter suppression, whether through voter ID laws, or draconian purges of voter rolls, or racial and political gerrymandering (manipulating the boundaries of voting districts), or through the disenfranchisement of felons.

Without a constitutional guarantee, it’s very difficult to overturn these laws, particularly when you have an increasingly conservative judiciary which is inclined to let the states pretty much do what they please when it comes to voting.

I think the future of voting rights may well lie not in the federal courts but in the state courts, because most states do have at least some form of a constitutional guarantee to the right to vote.

For example, the overturning of the political gerrymandering for congressional seats in the state of Pennsylvania in June 2018 was accomplished not through the federal courts but through the state courts in Pennsylvania.

Sean Illing

Because states have the power to decide who gets to vote, these state laws have become another political tool, like gerrymandering. The famous debacle in Florida during the 2000 presidential election, in which the Supreme Court basically handed the presidency to George W. Bush, proved how important it was to control the rules governing election processes.

Allan Lichtman

You’re exactly right, and these rules divide along party lines. The Republican Party knows that their base is white, Christian, older men, which is the most shrinking part of the American electorate. Whereas the Democratic base tends to be among minorities, young people, nonreligious people, which are the most accelerating demographics in the American electorate.

Republicans can’t manufacture more old white Christian men, but they can attempt to limit the voting of the Democratic Party base. That’s why voter suppression efforts have escalated so much in recent years, and it’s why we’re now in a period of backsliding.

Sean Illing

There’s a staggering anecdote in the book about that 2000 Florida election: During the recount, one out of every 10 African-American votes were discounted, whereas only one out of every 50 white votes were discounted. Has this kind of racist tactic been replicated in subsequent elections?

Allan Lichtman

180,000 votes were invalidated in Florida and, as you say, one out of every 10 African Americans compared to one out of 50 whites. If, in fact, African-American votes would have been discounted at the same rate of white votes, Al Gore would have won Florida and been elected president of the United States.

So you can see how these voter suppression measures, given how close our partisan divide is, can have monumental consequences for the country.

And while what happened in Florida has been diminished in recent years because of reforms in election technology and administration, it hasn’t, by any means, disappeared. Even in 2016, one could argue that voter suppression measures like the new voter ID laws in Wisconsin may well have turned the election for Donald Trump.

Sean Illing

How many states enacted new voter ID laws after President Obama’s election in 2008?

Allan Lichtman

I believe 15 states have adopted stricter voter ID laws since 2008, and all but one of them are controlled by Republican legislatures.

Sean Illing

Are these new voter ID laws or racial gerrymandering practices, of the sort we’ve seen in North Carolina, in direct violation of the Equal Protection Clause of the 14th Amendment?

Allan Lichtman

I certainly believe they are, and some courts have found that. For example, five years ago North Carolina adopted some of the worst voter suppression measures in the country, and the Fourth Circuit Court of Appeals ruled that they were intentionally discriminating against minorities and therefore in violation of the 14th Amendment.

Sean Illing

So here’s the paradox we’re stuck in: Our voting laws discourage people from voting, which in turn skews elections toward special interests and high-income people, which in turn produces cynicism about government and even less political participation from everyone else. What’s the solution to this problem?

Allan Lichtman

We need more anti-gerrymandering referendums. We need same-day registration, so people can register to vote when they show up at the polls. We need automatic registration, so people are registered when they apply for driver’s licenses, or renew their licenses, or apply for public services.

But none of this will happen unless the people demand it. The people have to demand these reforms from politicians who so far have not felt enough pressure.

Sean Illing

Is the right to vote the most urgent civil rights problem today?

Allan Lichtman

There’s no question. Voting is the right that grounds all others, and it’s under siege in new ways today. Voter suppression is more subtle now, but it’s still quite effective.

Without political power, every other right can be placed in jeopardy, and we’ve certainly seen a lot of rights placed in jeopardy under the Trump administration. So yes, I think the fundamental importance of voting makes this the most pressing civil rights issue we currently face.