Suffrage Suffers in the Land of Rights

You have to admire President Bush’s willingness to amend the Constitution over an issue of basic principles. But before we forever deny millions of Americans the chance to marry the persons they love, shouldn’t we first pass an amendment guaranteeing all of us the right to vote and the right to have those votes counted?

You may think such a right already exists, but it doesn’t. In fact, among 119 electoral democracies in the world, the United States is one of only 11 whose constitutions do not include the right to vote and to be represented. This embarrassing national secret reflects our origins as a slave republic in which votes were cast only by white male property owners over 21. Universal suffrage was never on the agenda in Philadelphia, and the founders left the tricky issue of voter qualifications to state legislatures. Only gradually was the electorate broadened in the years that followed, with anti-discrimination amendments that prevent disenfranchisement based on race (the 15th), gender (the 19th) and failure to pay a poll tax (the 24th).

But these incremental stabs at voting rights fall way short of international standards requiring universal suffrage. Florida 2000 was not a fluke but a vivid glimpse behind the scenes of a fragmented and politically compromised system that, according to a Caltech and MIT study, managed to lose the votes of more than 4 million Americans in that election.

Florida highlighted several things: We have no uniform ballot for national elections, but a free-for-all of local butterfly and caterpillar ballots spawning confusion. We have no independent, nonpartisan federal commission overseeing national elections, as Mexico has, but rather partisan state officials doing the job, like Florida Secretary of State Katharine Harris, who doubled as state chair of the Bush campaign. We have no national voter registration system, as more than 100 nations do, but rather state-based systems subject to manipulation. So under the guise of centralizing Florida’s voter list, Harris contracted with a private company that proceeded, under her direction, to wrongly purge more than 18,000 voters, most of them minorities, on the false grounds that they were ex-felons. We don’t even have a national ballot count or tally.

Florida laid bare the undemocratic structures that constrain our politics. When the Florida Supreme Court ordered the counting of 175,000 ballots that did not register on the punch-card machines, Republican legislative leaders threatened to disregard the popular vote and choose their own electors. This threat startled much of the nation. But, in Bush vs. Gore, the Supreme Court quickly recorded that they were acting within their powers under Article II (“Each state shall appoint, such manner as the legislature thereof may direct, a number of electors ... “).

The court emphasized that the “individual citizen has no federal constitutional right to vote for electors for the president of the United States.”

By defining voting as a state-conferred privilege rather than the people’s inalienable right, the Constitution leaves millions outside the representative structure.

In Washington, D.C., for instance, 570,898 citizens have no representative in the Senate or the House with voting privileges -- even though they pay, proportionately, more federal taxes than people in every state but Connecticut and even though Washington residents have fought in every war since the Revolution. Their disenfranchisement is unique among the world’s capital city residents. But the Supreme Court rejected a district voting rights challenge in 2000 on the grounds that Washingtonians are not state residents.

In all, there are more than 8 million disenfranchised U.S. citizens, a population larger than the populations of Wyoming, Vermont, Alaska, North Dakota, South Dakota, Montana, Delaware, Maine and Nebraska combined.

About 4.1 million of these people live in the territories -- mostly Puerto Rico, but also Guam, American Samoa and the U.S. Virgin Islands. These citizens have no voting representation in Congress and cannot vote for president, which, in the case of Puerto Rico, according to the U.S. 2nd Circuit Court of Appeals, “is the cause of immense resentment.”

On the mainland, especially in the Deep South, many states supervise an increasingly controversial internal political colony. More than 3.9 million citizens, 2% of the country’s eligible voting population, are disenfranchised because of felony convictions. More than one-third of these people have done their time but have nonetheless lost their right to vote forever. The policy is not uniform; different states handle it in different ways.

Such political punishment is a tactic not of individual rehabilitation but of mass electoral suppression. The ex-felon group is disproportionately poor, minority and, probably, Democratic. In the 2000 election, which was clinched by a little more than 500 votes, Florida had disenfranchised more than 600,000 citizens for their felony convictions. Florida takes the position that ex-felons can never get their voting rights back. Other national supreme courts, such as Canada’s, have overturned similar laws, invoking universal suffrage provisions in their constitutions.

Around the world, almost all electoral democracies have written positive suffrage guarantees into their constitutions. What about us, the super-democracy that spends billions promoting elections abroad? Before we take up the idea of “one man, one woman,” how about dusting off “one person, one vote”?

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Jamin Raskin is a professor of constitutional law at American University and the author, most recently, of “Overruling Democracy” (Routledge, 2003).