Again, the simple answer is no.
Although Americans vote for one president, one U.S. representative, and usually one U.S. senator, every county in the United States could have a unique way in which federal elections are administered. In this sense, it is not surprising that we see so many voting issues throughout the country. The result is a “patchwork voting system” run independently by 50 states and more than 3,000 counties and 13,000 voting districts, “all separate and all unequal.”
In most states, ballot design, voter education, poll-worker training, voter-registration maintenance, and polling locations, hours, and standards are all left to individual counties. As a result, a voter in Miami-Dade County could have a wildly different voting experience than one in Okeechobee County, despite the fact that both counties are in Florida. County-by-county and state-by-state differences can be even more dramatic due to various degrees of federal and state support and population density.
State policymakers and legislative bodies have used this relative freedom to disenfranchise political opponents and make it harder for specific populations to vote. After Reconstruction, states passed laws implementing poll taxes, literacy requirements, and grandfather clauses aimed at restricting African American voting. Unfortunately, manipulating voting laws to serve one’s political or ideological objectives is not limited to the past. Who can forget the astonishing claim by Pennsylvania House Majority Leader Mike Turzai that Pennsylvania’s restrictive law that requires voters to show government-issued identification before they can vote “is gonna [sic] allow Governor Romney to win the state of Pennsylvania”?
Beyond political rhetoric, the sheer number of cases that were reviewed by the Department of Justice, or DOJ, based on Section 5 of the Voting Rights Act (which today’s Shelby County decision left unchanged, but rendered insignificant), paints a clear picture of voter discrimination that continues to exist. When Congress reauthorized the Voting Rights Act in 2006, it conducted weeks of hearings and created a massive record that included evidence of contemporary racial discrimination, including:
Further, just six years ago, the Supreme Court ruled that Texas—a state covered by Section 5 of the Voting Rights Act—had “rigged its redistricting process to deny Latino citizens in the Laredo area the ability to participate effectively in electing members of Congress,” barring the state from bailing out of the Voting Rights Act until at least 2016.
Although the Court argues in Shelby County that “things have changed dramatically” from the days of overt discrimination, using the Section 5 review process, the DOJ has blocked 86 state and local submissions of election-law changes over the past 15 years. The DOJ’s watchdog power extends beyond formal decision making because states often alter their behavior once they have realized that the DOJ would be reviewing their actions. Between 1999 and 2005, 153 state and local voting-law changes were withdrawn and 109 were altered after the DOJ requested more information. This past election cycle alone, the Department of Justice refused to preclear “voter ID laws in Texas and South Carolina, early voting cutbacks in Florida, and redistricting maps in Texas” under Section 5 because it deemed the laws to be discriminatory.
Today state governments continue to attempt to pass laws that restrict voting behavior. The Brennan Center for Justice, a public policy and law institute, reports that in 2013 alone, at least 80 restrictive voting bills—including laws that require photo ID, demand proof of citizenship, make it more difficult for students to register, and reduce early voting opportunities—have been introduced in 31 states. Lawmakers in 9 of the 15 states fully or partially covered by Section 5 of the Voting Rights Act have introduced restrictive voting laws.
While some of these measures may be constitutional, others likely are not. Many of the laws are, however, “likely to have a disproportionate impact upon minority citizens, the elderly, students, and indigent citizens.”
The effects of these restrictive laws are felt throughout the electorate. A study of the 2008 presidential election led by the Massachusetts Institute of Technology found that 4 million to 5 million voters did not cast a single ballot because they encountered procedural problems related to voter registration and absentee balloting. An additional 2 million to 4 million registered voters were “discouraged” from voting due to administrative hassles, such as long lines and voter-identification requirements.
With the decision in Shelby County, the Court not only gutted a law that has successfully combatted voting discrimination, but it also convinced itself of a false reality. The Court’s ruling implicates that, as a nation, we have evolved beyond the days that voting-related laws were created and manipulated to advance political agendas and disenfranchise certain populations. One need not look further than the data outlined above to know that our “right” to vote is far from secure.
Because Americans lack a constitutional right to vote, and now lack significant Voting Rights Act protections, it is important to consider other options to ensure that we have a right to vote and participate in our democracy.
Can anything be done to enhance federal voting rights?
This time, the answer is yes.
A constitutionally guaranteed right to vote “would provide citizens and civil rights groups with standing to make demands on the system for consistent national rules, adequate funding of election operations, and an end to the gerrymandering of legislative and congressional districts.” Reps. Keith Ellison (D-MN) and Mark Pocan (D-WI) recently announced legislation to amend the U.S. Constitution to guarantee that every U.S. citizen of legal voting age has the fundamental right to vote, and that Congress has the power to enforce and implement the amendment by appropriate legislation. Several organizations, including Color of Change, have endorsed the effort to pass a constitutional amendment that would guarantee this right to vote.
Because Americans lack this right, and the courts have failed to clarify the issue, a constitutional declaration of voting rights could force the courts to impose the highest levels of judicial scrutiny to voting laws. Proponents of the voting rights amendment hope greater judicial scrutiny would result in heightened protections and discourage ideologically motivated attempts to restrict voting.
In fact, recent state cases demonstrate that constitutional right to vote can result in greater protections than currently exist at the federal level. Several state constitutions confer a right to vote to state citizens. Courts have ruled that this constitutionally codified right provides voters in these states greater protections than federal law, invalidating politically drawn redistricting plans and restrictive voting procedures such as voter ID laws. Similar to how state citizens evoked their state-based constitutional right to vote, citizens could invoke the federal amendment to argue that their right to vote was constructively denied because of things such as voter intimidation, long lines, and disproportionate lack of voting-administration resources.
Ratifying U.S. constitutional amendments is an arduous process that requires a constitutional convention process, or agreement from two-thirds of both the House and the Senate and ratification by three-quarters of the states. Even if a constitutional amendment were to pass, it would not be an instant fix to our nation’s voting problems. Litigants would have to use the judicial system to allege constitutional voting rights’ violations, and the judiciary would have to grapple with how far the amendment goes to protect voters.
But despite these hurdles, a campaign for a right-to-vote amendment could provide needed attention and focus on the voting rights’ issues that face our nation. Our right to vote is not guaranteed; once Americans learn this, maybe they will take action to change it.
Joshua Field is the Deputy Director of Legal Progress at the Center for American Progress.