Right/Voting Rights and Suffrage/Conflicts with other Rights

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

Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?

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Federalism is a system in which governing and law-making powers are shared or divided between federal authorities and regional entities, such as states. One of the policy areas heavily influenced by federalism is voting rights. The right to vote has undergone several changes in scope and implementation as a result of the ongoing ebb and flow between state and federal powers. The sections that follow will highlight major legislative and judicial events that affected- and continue to affect- voting rights in America as a result of federalism.

Two important aspects of the relationship between federalism and voting rights are found in our Constitution. The first of these is Article I Section IV, which empowers state legislatures to set the parameters for their own elections. Because each state can have different electoral procedures and regulations, the exercise of voting rights is varied. It may be harder to exercise one’s right to vote, for example, if their state has stringent identification laws or restrictions on mail-in and absentee voting. As much as the federal government may want to protect voting rights universally, the federalist implications of Article I Section IV gives states the power to determine the scope and practice of suffrage during their elections.

Another portion of the Constitution relevant to federalism is the section of Article VI commonly referred to as the Supremacy Clause. In contrast to the provision mentioned above, this clause empowers the federal government with a degree of control over the states. Specifically, the clause asserts that the laws of the federal government should be recognized as “the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” In relation to voting rights, the supremacy clause gives the federal government the authority to set national standards for suffrage, even if individual states have passed their own legislation. The Supremacy Clause is a facet of federalism unique to the United States.

One of the most significant developments in American voting came as the federal government exercised this legislative supremacy by passing the Voting Rights Act of 1965. The VRA outlawed the discriminatory electoral procedures that had been adopted throughout the South following the Civil War. Most notably, its passage brought an end to the use of literacy tests to determine voter eligibility, which had long been a thinly veiled tool of racial discrimination and disenfranchisement. The VRA significantly altered the scope of American voting rights and remains an example of effectively leveraged federal supremacy. The 1965 Voting Rights Act and the changes that followed were thus an embodiment of federalism’s balancing of power.

Another major development in voting rights affected by federalism came in 2013, with the Supreme Court’s landmark decision in Shelby County vs. Holder. Shelby County, Alabama had issued a challenge to Sections 4 and 5 of the Voting Rights Act which stated certain states with a history of racial discrimination had to receive federal preclearance in order to make changes to their voting laws and procedures. With a 5-4 decision, the Supreme Court ruled in favor of Shelby County, and deemed both sections 4 and 5 of the VRA unconstitutional. The fact that blatant discrimination in the form of literacy tests was no longer present meant that Congress lacked the authority to impose these VRA restrictions, and that doing so “violated the ‘basic principles’ of federalism” (Charles 2015, p. 113). Whereas the passage of the Voting Rights Act represented a victory for the authority of the federal government, the decision in Shelby County vs. Holder swung the pendulum back towards states’ rights. This fluctuation between state and federal authority is the true embodiment of federalism.

Federalism’s impact on voting rights continues to develop and evolve today. As a response to alleged fraud in the 2020 presidential election, numerous state legislatures have advanced bills that would tighten regulations on voter ID, in addition to mail-in and absentee voting procedures. The modern battle over voting rights takes place within the arena of federalism, as different levels of government vie for authority over elections.

In conclusion, federalism has a major impact on the exercise and application of voting rights in America. Federalism has played a consistent role in shaping the balance of power, from the writing of the Constitution, to the struggle for civil rights, to the congressional politics of today. In a piece for Texas Law Review, David Landau and his coauthors effectively summarize the function of federalism with relation to voting: “By separating and dispersing the functions of governance—the day-to-day work of governing—U.S. federalism provides some protection against authoritarianism. The decentralization of authority over elections offers one particularly dramatic example of this dynamic in action” (Landau et al. 2021, p.96). In other words, federalism remains a central component of American politics, and will continue to dictate voting rights and suffrage in future elections.

References:

Charles, Guy-Uriel, and Luis Fuentes-Rohwer. 2015. “Race, Federalism, and Voting Rights.” University of Chicago Legal Forum, January, 113–52.

Landau, David, Hannah Wiseman, and Samuel Wiseman. 2021. “Federalism, Democracy, and the 2020 Election.” Texas Law Review 99 (February): 96–121.

Sarbanes, John. 2021. For the People Act of 2021.

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Freedom of the press is extremely entrenched in international law, demonstrating its high status. In 1644, John Milton began the discussion about freedom of the press in response to the British government having to approve each publication before it went to print. Before this time, media wasn’t common, so refuting such regulation didn’t make sense (Cunningham). In 1766, Sweden passed the first known act requiring freedom of the press (Cunningham). It was intended to prevent the Swedish government from having to approve each publication, much like Milton was advocating for in Britain a century earlier (Cunningham). Ten years later, this right appeared in the Virginia Declaration of Rights in 1776 and was later brought by Virginian James Madison to the United States Bill of Rights (Freedom of the press, 2018)

Today, the protection of expression, media, and opinion is seen in conventions and declarations worldwide. The United Nations Universal Declaration of Human Rights (UDHR, 1948) has a wide reach and a broad expression of freedom as it is intended to apply to all people. Article 19 states “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (UDHR, 1948). Although the UDHR is neither a treaty nor legally binding, it has heavily influenced the development of international human rights law (Australian Human Rights Commission). The UN has also signed the International Covenant on Civil and Political Rights (ICCPR), a treaty that outlines rights that “derive from the inherent dignity of a person” (1966, Art. 19). Article 19 of the ICCPR (1966) outlines the freedom of expression, explicitly calling out the right to freely “seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Article 5 of the UN’s 1965 International Convention on the Elimination of Racial Discrimination explicitly expands this right to all people.

Regional supranational organizations have also called out this right explicitly. In 1953, the Council of Europe (which contains more member states than the European Union) adopted the European Convention on Human Rights (ECHR). Article 10 of the ECHR (1950) says the right of free expression “shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The European Union has also adopted the EU Charter of Fundamental Rights (2009), which states in Article 11 “the freedom and pluralism of media shall be respected.” The African Union and Organization of American States (OAS) took similar steps in 1981 and 1969, respectively, with Article 9 of the African Charter on Human and People’s Rights and Article 13 of the American Convention on Human Rights, also called the Pact of San Jose. These freedoms were reaffirmed in 2001 with a joint statement between the UN, OAS, and Organization for Security and Co-operation in Europe (OSCE) and again by the OSCE in the 2003 Amsterdam Recommendations.

References:

African Charter on Human and Peoples’ Rights. African Union. June 1, 1981. https://au.int/en/treaties/african-charter-human-and-peoples-rights

American Convention on Human Rights. Organization of American States. Nov. 22, 1969. http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp

Amsterdam Recommendations. Organization for Security and Co-operation in Europe. June 14, 2003. https://www.osce.org/files/f/documents/4/a/41903.pdf

Australian Human Rights Commission. (n.d.) What is the Universal Declaration of Human Rights? https://humanrights.gov.au/our-work/what-universal-declaration-human-rights

Charter of Fundamental Rights of the European Union. Dec. 1, 2009. https://fra.europa.eu/en/eu-charter

European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf

Freedom of the press. (2018, Aug. 21). History.com. Retrieved Sept. 3, 2021, from https://www.history.com/topics/united-states-constitution/freedom-of-the-press

International Convention on the Elimination of All Forms of Racial Discrimination. United Nations General Assembly (UNGA). Dec. 21, 1965. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx

International Covenant on Civil and Political Rights. UNGA. Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights

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Rights, as outlined in constitutions around the world, the 1948 United Nations Universal Declaration of Human Rights, the 1789 Declaration of the Rights of Man and of the Citizen, and in various philosophical frameworks throughout history, have become integral aspects of many societies and governments. The understanding and view of rights and their implications on the government's structure and role can vary but their presence in vast political arenas cannot be denied. Within these documents however, there are several rights that are considered to be inalienable and should be protected. The right to vote, in the United States and in other countries, can be considered to be in legal limbo compared to other clear guaranteed rights popularly included in the articles mentioned above. In the case of the United States, this nuance has been present throughout the entire tenure of the US Constitution. The Supreme Court has the responsibility of defining voting rights with respect to the United States Constitution, which assigns significant power to the states in the electoral process via the Elections Clause. For example, we can see recent cases such as Bush v. Gore(2000), “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,” (Bush v. Gore, 531 U.S. 98 (2000)). This decision was split amongst party lines and some have declared the case itself to be “not justiciable,”(Chemerinsky 2001). Yet, the majority opinion of the court also stated, “The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors,”(Bush v. Gore, 531 U.S. 98 (2000)). While this decision was split amongst party lines, in “First,” a 2019 biography of retired Justice Sandra Day O’Connor, Justice Scalia who sided with the majority privately regarded the equal protections rationale that the decision was based on as “a piece of shit.”(MacDougall 2020) While this decision seemed to undermine the electoral process, in the Supreme Court’s majority opinion of Wesberry v. Sanders 1964, Judge Hugo Black wrote, “ No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined,” (Wesberry v. Sanders, 376 U.S. 1 (1964)). This case, in response to unequal representation in congressional districts in Georgia, upheld Justice Black’s sentiment and established a voting rights precedent still in effect today. These two cases, among others, reflect some of the complexity when it comes to voting rights in the United States. However, it is interesting to note that when looking at the available study guides for the civics questions portion of the naturalization test in the United States, “The right to vote is the most important right granted to a U.S. citizen,” (“The Citizenship Test” 2015). Scholars have also contributed to the conversation of the importance of voting rights in several ways. Thomas Paine assigns voting rights as the “primary right by which other rights are protected,” (21, Paine 1785). He continues on to say, “To take away this right is to reduce a man to a state of slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives, is in this case,” (21, Paine 1785). President Lyndon B. Johnson echoed this sentiment in his speech before signing the Voting Rights Act of 1965 stating, “This right to vote is the basic right without which all others are meaningless. It gives people, people as individuals, control over their own destinies,” (Johnson 1965). This argument, that all other rights depend on the right to vote, has been one of the more salient arguments in political science that consider suffrage to be the pinnacle of all rights. Joseph Fishkin, a voting rights scholar recognized by the Supreme Court,(Brnovich et al. 2021) adds, “that the individual right to vote is valuable for reasons that cannot be fully captured by broader, structural variables such as the overall level of participation, representativeness, democratic accountability, and so on,”(Fishkin 2011). Furthermore, he builds upon his claim by stating that voting has an innate value “for reasons that are individualistic” and ties personhood with the ability to vote. Other more pessimistic public perspectives also have gained traction throughout the years as misinformation has become more widespread. One of the more famous examples of this is Mark Twain’s alleged quote, “If voting made any difference they wouldn’t let us do it.” In reality, his views were quite the opposite. In fact, in a 1905 interview with the press he stated, “In this country we have one great privilege which they don’t have in other countries. When a thing gets to be absolutely unbearable the people can rise up and throw it off. That’s the finest asset we’ve got — the ballot box,” (Spencer 2019). Essentially, the right to vote is not universally accepted as the most important right in one's life. Arguments have been made in favor of the right to vote but there is no widely accepted status of superiority amongst scholars and political leaders.

References:

Paine, Thomas. 1795. Dissertation on First-Principles of Government.

Chemerinsky, Erwin. 2001. Review of Bush v. Gore Was Not Justiciable. Notre Dame Law Review 764: 1093–1112. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1707&context=faculty_scholarship.

MacDougall, Ian. 2020. “Why Bush v. Gore Still Matters in 2020.” ProPublica. November 1, 2020. https://www.propublica.org/article/why-bush-v-gore-still-matters.

Bush v. Gore, 531 U.S. 98 (2000)

Wesberry v. Sanders, 376 U.S. 1 (1964)

“The Citizenship Test.” 2015 https://canalalliance.org/wp-content/uploads/2019/09/Citizenship-for-Us-11-4-15.pdf.

“From the Archives: Lyndon B. Johnson Signs Voting Rights Act of 1965.” n.d. www.youtube.com. https://www.youtube.com/watch?v=QJamYFIE3kY.

Fishkin, Joseph. 2011. “Equal Citizenship and the Individual Right to Vote Equal Citizenship and the Individual Right to Vote.” Indiana Law Journal Indiana Law Journal 86. https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1001&context=ilj.

Brnovich, Mark, Att'y, Justin Levitt, Allison Davis, and Chris Swift. 2021. “Supreme Court of the United States Respondents. On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF of VOTING RIGHTS SCHOLARS as AMICI CURIAE in SUPPORT of RESPONDENTS * Institutional Affiliation for Identification Purposes Only.” https://www.supremecourt.gov/DocketPDF/19/19-1257/166801/20210120124709720_19-1257%20bsac%20voting%20rights%20scholars.pdf.

Saranac Hale Spencer. 2019. “Fake Mark Twain ‘Quote’ Mocks Voting - FactCheck.org.”

FactCheck.org. June 13, 2019. https://www.factcheck.org/2019/06/fake-mark-twain-quote-mocks-voting/.

Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?

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