The Right To Vote

File under “They aren’t even pretending.”

Indiana’s deplorable legislature is in session (you can tell by the number of us cringing during news reports), and the outnumbered Democrats are battling attacks on Indianapolis, on public education, and on voting.

Democratic Representative Carrie Hamilton introduced a bill that would extend Indiana’s shortest-in-the-nation voting hours. The bill would allow voters to cast ballots until 8:00 p.m. rather than the current cut-off at 6:00, as is currently the case in most states. Rather obviously, a 6:00 p.m. cutoff primarily disadvantages lower-income workers who lack the flexibility of professionals and business executives.

Our legislative overlords–the GOP super-majority–immediately nixed Hamilton’s effort. Presumably, they’re worried that extending the time to vote would increase the turnout of “those people” who– they worry– tend to vote Democratic.

Making it difficult for certain people to vote has become a favorite Republican suppression tactic, along with the party’s ongoing commitment to gerrymandering.

Readers of this blog know me to be a vigorous defender of the U.S. Constitution, but it is impossible to overlook several provisions of that document that have become obsolete (i.e. the Electoral College) or others that are missing from it. Election expert Richard Hasan outlined one of the most important of those omitted provisions in a recent column for the New York Times.

The history of voting in the United States shows the high cost of living with an old Constitution, unevenly enforced by a reluctant Supreme Court.

Unlike the constitutions of many other advanced democracies, the U.S. Constitution contains no affirmative right to vote. We have nothing like Section 3 of the Canadian Charter of Rights and Freedoms, providing that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein,” or like Article 38 of the Basic Law of the Federal Republic of Germany, which provides that when it comes to election of the Bundestag, “any person who has attained the age of 18 shall be entitled to vote.”

As we enter yet another fraught election season, it’s easy to miss that many problems we have with voting and elections in the United States can be traced to this fundamental constitutional defect. Our problems are only going to get worse until we get constitutional change.

Hasen pointed out that most expansions of voting rights in the United States are the result of  constitutional amendments and congressional action. The Courts have routinely reiterated that the the Constitution doesn’t contain any guarantees of the right to vote for President (see Bush v. Gore, in which the Court also ruled that states may take back the power to appoint presidential electors directly in future elections.)

As most lawyers know, and as Hasen points to

the only period in the 235-year history of the Supreme Court when it was hospitable to broad constitutional voting rights claims. The court, under Chief Justice Earl Warren, saw a broad expansion of voting rights in the 1960s, thanks mainly to its capacious reading of the equal protection clause.

Hasen’s column provides several examples of the Court’s reluctance to find a right to cast a ballot, and it is one more gloomy element to assess in what is shaping up to be an election deciding the fate of American democracy.

He then turns to state-level efforts to restrict voting.

Often, voting restrictions are an effort to shape the universe of those who vote. Although both parties have played this game over time, today it is mostly Republican-led states that seek to limit the franchise, out of a belief that lower turnout, especially among those they expect to vote for Democrats, helps Republicans.

Finally, Hasen points to three reasons to pass a constitutional amendment confirming a positive right to vote: it would prevent states from limiting the franchise and erecting  barriers intended to prevent voting by eligible voters, like onerous residency requirements or strict voter identification laws; it would diminish the current explosion of election litigation–which has nearly tripled since 2000;. and it “would moot any attempt to get state legislatures to override the voters’ choice for president through the appointment of alternative slates of electors, as Donald Trump and his allies tried to do after the 2020 election.”

Rules that guarantee not only the right to vote but also the right to have that vote fairly and accurately counted would provide a basis for going after election officials who sought to disrupt the integrity of election systems. Leaks of voting system software or an administrator’s lack of transparency in counting ballots could become constitutional violations.

In many ways, our Constitution is a marvelous document, but the addition of an affirmative right to vote would definitely improve it.

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While We Remain Uninformed….

Yesterday’s blog addressed our abysmal lack of real journalism, especially at the local level.

As an astute Facebook commenter noted, “the legislature is in session, Israel is days away from an election, ISIS continues to murder homosexuals by throwing them off roofs, a huge report about Ferguson MO using African Americans as ATMs was released, the Affordable Care Act is awaiting a verdict, the 50th Anniversary of Selma just passed, and a US Senator is about to be indicted,”–and the lead story in the Indianapolis Star was “Stink-free Super Bowl has Southsiders asking: What about us?” Other “news” addressed by the Star concerned middle school basketball game brawls, IU basketball, Reggie Wayne, an exhibit at the Historical Society, a Daylight Savings Time story, a Pacers story, and a “review” of the Mercedes C300.

And while our local media ignores the statehouse in order to focus on trivia and infotainment, state lawmakers are busy undermining our right to vote.

Senate Bill 466 would discourage students from registering to vote in the counties where they reside, study, raise children, worship and consider themselves part of the community. It also prevents disabled Hoosier voters from allowing caregivers to assist with their absentee application.

Senate Bill 535 creates an unnecessary extra step for those voting by mail by requiring a voter registration number from the state or local clerk’s office to apply for an absentee ballot. This additional burden creates an unfunded mandate for local governments that will wind up costing our state $1.3 million annually to administer.

House Bill 1008 eliminates straight ticket voting, which will lead to longer voting times for Hoosiers, fewer choices and longer lines at the polls. In 2012 and 2014, knowledgeable voters cast more than 1.5 million straight ticket ballots. Those who wanted to vote on individual races were still able to do so.

The only reason I know about these efforts is because Trent Deckard, co-director of the Indiana Election Commission, sent out an email alert. To the best of my knowledge, no “news” reporter–either newspaper or electronic–has seen fit to bring these efforts to make voting more difficult to the public’s attention.

Fans of irony might note that Indiana lawmakers are mounting this assault on the right to vote on the 50-year anniversary of the march on Selma.

Some things, evidently, never change.

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