By Philip Drucker
“Vote Early & Often” – Al Capone
Now that the Trump administration is openly trying to rewrite the rules regarding what states can and cannot do during a presidential election, I thought I would take the opportunity to explain some of the constitutional mechanics of what happens when our individual right to vote, and have our vote count and be counted, collides with the State’s right to administer not only their own in-state elections, but are also responsible for conducting federal elections as well.
Oddly enough, the right to vote or who is eligible to vote, is not expressly mentioned in the original Constitution or Bill of Rights. This may not be as strange as it may seem, as the right to conduct elections, all elections including those at the federal level, to the individual states as part of the rights reserved to the States or people section of the 10th Amendment.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (emphasis added)
Unfortunately, the Founding Fathers failed to recognize or offer a remedy for the state election fraud and voter suppression that had been around since, well as early as the Colonists could vote. As early as the late 1700s Plymouth Colony restricted suffrage, the right to vote to freemen who were “orthodox in the fundamentals of religion.” By the 18th Century, the Thirteen Colonies reserved suffrage to white males with 50-100 acres of land or a little jingle in their pockets, with an annual income of say, 40 shillings ought to do the trick, or in the alternative a minimum of £40-50 in personal property to their name.
Let me ask you, beginning with the days of limiting voting rights to a handful of wealthy white landowners (most of whom were Masons) how do you think the states have done? I find it very informative that excluding the Bill of Rights, seven of the last seventeen constitutional amendments have either expanded the franchise or improved the way we vote.
Beginning in 1870, the 15th Amendment guaranteed that voting rights could not be denied or abridged because of race, color, or previous condition of servitude. In 1920 women could no longer be disenfranchised “On account of sex” (or lack of) under the Nineteenth Amendment. In 1964, the Twenty-Fourth Amendment abolished all poll taxes, and/or any other taxes for federal elections and in 1971 the Twenty-Sixth Amendment provided protection to all voters 18 years of age or older from voting restrictions based upon age.
Yet despite the best efforts of the federal government the States continue to wiggle, weasel and denigrate the rights of individuals to participate in a free and fair election process. They lie, they cheat, and yes, steal elections. Tampering with the election process by a state representative, including the Secretary of State, is called Election Fraud and unlike Voter Fraud, where an individual casts a fraudulent vote, think taking the names of dead people from tombstones is very rare, Election Fraud and voter disenfranchisement is alive and well.
Every day we hear about a group fighting for their right to vote. In many states, ex-felons who have served their time cannot vote. College students and overseas voters, both transient in nature, are subject to state residency requirements that may or may not allow them to vote in the jurisdiction in which they physically reside.
Isn’t it shocking to see that in 2020 we are preparing for an onslaught of “poll watchers” possibly armed, who we all know are there for no legitimate reason except to intimidate and harass and let’s be honest here, persons who they “think” might be voting for the democratic ticket and that without doubt they are “suspicious” and need to be confronted, in the name of election fairness? Yes, Virginia, voter suppression is real.
It’s not just the states. Remember Bush v. Gore? The case where the SCOTUS stepped all over the sovereignty of Florida to deliver what was a partisan decision handing the election to the GOP for, well, if you read the opinion, in my opinion for no legally cognizable, or even logical reason. The “because we can” case if there ever was one. Will we see a repeat performance this year?
Considering we no longer have a SCOTUS claiming to be non-partisan with some on the Court expressing it would be acceptable to discard the one person, one vote basis of our democracy, in favor of installing a tyrant into the highest office of the land by judicial fiat. Throw in the addition of Amy “Salem’s Sweetheart” Coney Barrett to the Court, and blatant as it gets election tampering and fraud all magically falls under the religious catch-all we know and love known as “God’s will be done”.
The biggest recent blow to our collective voting rights came in 2013 when John Roberts struck down section 4 of the Voting Rights Act. Under VRA section 4, states previously found to have by means of restrictive legislation systematically denied minorities the right to vote were required to “pre-clear” said laws with the federal government before implementation. In striking down the very section of the law that was highly successful in curbing discriminatory restrictive state voting laws, Roberts cited as part of his rationale we didn’t need the clause anymore because we, in America had eliminated discrimination against minorities. Really. I’m not kidding.
The day after the opinion in Shelby County v. Holder became public, every state previously identified under the VRA enacted voting laws most visibly by requiring Voter IDs (a hidden poll tax if there ever was one) undeniably discriminatory and disenfranchising to their minority voting population. Their excuse? Protecting the integrity of their election process. By suppressing the vote to combat voter fraud that doesn’t exist.
In the coming years, there will be many steps we could take to fix the situation. We could repair and revitalize the VRA including restoring all the pre-clearance requirements on the offending states. We could make a serious effort to end partisan gerrymandering. We could upgrade and improve our voting machines and processes. These changes would make a difference in returning us back to one person, one vote democracy.
But the biggest change of all? One that would make the biggest difference? Why not amend the Constitution to include an affirmative Right to Vote provision? In this manner, al election laws would face the strict scrutiny of judicial review mandated for the review of fundamental rights. Or, in other words, why go after the States with a pea shooter when we have a cannon?
For too long our elected officials have failed us in this critical foundational area of our democracy. Mr. Biden? If you are listening, tear down this wall of injustice, close this playground for tricksters and con men who mean to deny us the most basic of democratic functions. As with all rights, the denial of one individual’s right to vote is a threat to the voting rights of all. It’s all or nothing time, and brother, nothing is not an option. C’mon man, you know I’m right.
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