Creating a Federal Right to Vote

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.