Voting Rights and Suffrage/Position

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Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?

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/.