Right/Voting Rights and Suffrage/Legal Codification

Voting Rights and Suffrage

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

Is this right enshrined in international and regional human rights treaties?

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Voting rights, while not directly detailed in the original United States Constitution, have been addressed through several amendments. Originally, the status of voting was defined as the manner of choosing members of Congress – voting directly for the House of Representatives and indirectly for Senators who were appointed by the legislature. Article I, Section II of the Constitution details: “The House of Representatives shall be composed of members chosen every second Year by the People of the several States” and Article I, Section III dictates: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.” Overall, it was states that held the authority to create voting eligibility rules to the House of Representatives and to state legislatures that would choose Senators. Further amendments reflect the evolving understanding and expansion of democratic participation in the United States.

The 15th Amendment, ratified in 1870, states: “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” (U.S. Const. amend. XV). This amendment was a direct response to the end of the Civil War and the abolition of slavery, aiming to enfranchise Black men. It serves as the first explicit constitutional guarantee of voting rights, targeting racial discrimination.

In 1920, states ratified the 19th Amendment, which significantly expanded the electorate by protecting voting rights for women. The amendment states, “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 sex” (U.S. Const. amend. XVIIII).

The next consequential change in the Constitution to address voting rights is the 24th Amendment of 1964. It dictates, “The right of citizens of the United States to vote in any primary or other election for President or Vice President for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax” (U.S. Const. amend. XXIV). This means that economic barriers such as poll taxes are not allowed in federal elections, ensuring that financial constraints would not impede the right to vote.

Finally, the 26th Amendment of 1971 decides, “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age” (U.S. Const. amend XXVI). The primary motivation in lowering the voting age from 21 to 18 years old was the argument that if individuals are old enough to be drafted for military service, they should also have the right to vote.

These amendments exemplify the American public’s evolving stance on voting rights and eligibility, moving from a general framework to explicit protections against specific forms of disenfranchisement.

References U.S. Constitution. https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm.

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While certain amendments explicitly address voting rights, the broader interpretation of voting rights as being implicit in the United States Constitution has evolved significantly through judicial decisions and legislative actions. The Supreme Court and other judicial bodies have played a critical role in interpreting these rights and ensuring their protection.

The Voting Rights Act of 1965 was a pivotal piece of legislation in the fight to protect voting rights. It aimed to overcome legal barriers at the state and local levels that prevented Black Americans from exercising their right to vote as guaranteed under the 15th Amendment. However, the 2013 Supreme Court Case Shelby County v. Holder successfully challenged the constitutionality of parts of the VRA. The case disputed the constitutionality of Section Four (the Coverage Formula) and Section Five (Preclearance of Changes in Election Laws) of the VRA, which outlined a mandate for states with a history of racial discrimination in voting to “pre-clear” changes in the election process with the Justice Department (Congressional Research Service 2015, 16). The attorneys believed these mandates impeded states’ rights to determining voter eligibility. Ultimately, they won based on an argument that the coverage formula was outdated (Congressional Research Service 2015, 1).

The constitutions that do make explicit references to voting rights are state constitutions. Whereas the US Constitution utilizes negative mandates to govern who the government may not disenfranchise, state constitutions directly list who is eligible to vote (Douglas 2014, 89). Article I, Section 2 of the United States Constitution grants states the power to determine voting eligibility (Douglas 2014, 90). Former Supreme Court Justice Scalia asserted that the Elections Clause “empowers Congress to regulate how federal elections are held, but not who may vote in them” (Douglas 2014, 91). What provides this implication of voting rights is that “the U.S. Constitution mentions individual voting rights seven times – in Article I, Section 2 and in the Fourteenth, Fifteenth, Seventeenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments – but none of those provisions actually grant a right to vote to U.S. citizens” (Douglas 2014, 95).

The interpretation of voting rights as implicit in the Constitution has been significantly shaped by judicial decisions and expanded understanding of constitutional amendments. Legislative actions, such as the Voting Rights Act, have further reinforced these rights, although challenges and debates continue regarding their scope and protection. These elements underscore the Constitution’s role in both explicitly and implicitly protecting the right to vote as a pillar of democracy.

References Congressional Research Service. “The Voting Rights Act of 1965: Background and Overview.” (2015). https://crsreports.congress.gov/product/pdf/R/R43626/15#:~:text=The%20Voting%20Rights%20Act%20was,preclearance%20of%20new%20laws%20in.

Douglas, J. “The Right to Vote Under State Constitutions.” Vanderbilt Law Review 89: 89-149 (2014). https://scholarship.law.vanderbilt.edu/vlr/vol67/iss1/1.

Persily, N and Mann, T. “Shelby County v. Holder and the Future of the Voting Rights Act.” Brookings (2013). https://www.brookings.edu/articles/shelby-county-v-holder-and-the-future-of-the-voting-rights-act/. U.S. Constitution. https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm.

Are there any exceptions in American law to this right?

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The right to vote has developed into an international norm over the past several decades, one often made an element of national constitutions. The widespread suffrage we see today was achieved through the struggle of advocates for democracy around the globe. Other political forces, beyond national constitutions, have also guided the global development of voting rights, to some degree. International and regional conventions on human, civic, and political rights further encourage states to protect their citizens’ right to vote. Examples include The Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political Rights (ICCPR), and the Organization of American States (OAS), to name just a few. (Kirshner, 2003) Though ambitious, such conventions are rarely legally binding, thus lacking enforcement. Furthermore, they present a general framework that allows national governments to find and exploit loopholes based on their own interests, should they desire to do so.

A government’s motivation plays a key role in how it implements voting rights. While we typically think of suffrage as a way of empowering citizens, it functions just as easily as a tool of legitimation to counter both domestic and international criticism. The latter function is common in “anocratic” states that blend democracy with authoritarianism, and can use voting rights as an attempt to gain clout and legitimacy in the global arena. (Global Citizen)

References:

Global Citizen. “What Democracy and Voting Rights Look Like Around the World.” n.d. Global Citizen. Accessed June 9, 2021. https://www.globalcitizen.org/en/content/its-2016-here-is-the-state-of-voting-rights-around/.

Kirshner, Alexander. 2003. “The International Status of the Right to Vote.” Democracy Coalition Project.