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.


  1. It is quite difficult to imagine our current cast of characters making any sane changes to the constitution. They lack the motivation and the intelligence.

  2. I was struck by Hasan’s words on voting history in our country reflecting the “‘high cost of living under an old Constitution, unevenly enforced by a reluctant Supreme Court.’”

    This history stems from our nation’s past which allowed the enslavement of black people and the marginalization of women as well as from a current rogue court majority, seemingly determined to dismantle legislation that provided rights which were hard-won by so many people who sacrificed and dedicated their lives to ensure those rights were achieved.

    Until the absolute right of every citizen to vote is enshrined in our Constitution and the current number of Supreme Court justices can be expanded by a Democratic Congress, to counteract this rogue majority, our discriminatory history will continue to repeat itself.

  3. OF COURSE Republicans want to make it hard to vote. They don’t want to risk losing their precious jobs or their basic income from Koch Industries, et. al. Voting runs the risk of being ousted from power. And it’s all about power for Republicans, isn’t it? The people? Not so much.

    It’s getting increasingly tiresome to keep commenting about the pathetic, craven and anti-democratic Republican party. EVERYTHING they do and attempt is designed, it seems to undermine the Constitution and the rights of the people. Why can’t Democrats do better branding and start calling out these seditious bastards for who and what they are? And it’s not just Indiana. Everywhere Republicans dominate government, the Democrats sit back, throw up their hands and say, “What can we do?”

    Take a page out of the GOP playbook and take off the silk gloves. We’re in a bar fight to save our nation and our individual rights from the worst collection of politicians we’ve had since the 19th century. We’d better decide what we’re going to do to defeat Republican politics everywhere before it’s too late.

    Meanwhile one of our “allies” is trying to start WW III by emulating Republican power politics.

    I’m glad I’m old, but maybe I’m not old enough.

  4. Yes, it is so clear that the Republicans, anywhere, are only about “Power uber alles! The people be damned!”

  5. I seem to remember that in the first years of the Biden administration they tried to create a voting rights act to repair the damage that the SCOTUS did to the 1965 Voting Rights Act. Was it Manchin, Sinema, or both that scuttled that effort?
    In any case that was a major effort that would have gone a long way to protect the franchise for all. But, as I have often quoted the odious Lindsey Graham, “If we let everyone vote we’ll never win another election.”
    Sort of sums it all up.

  6. When entitlement takes over from empathy, terrible things happen.

    Republicans have been teaching entitlement now for a long while. So has the NAACP. Is there a difference?

    The difference between the two organizations is the flow of currency. The NAACP is designed based on equality, the GOP, inequality. NAACP empathizes with those with less than their share of the proceeds from labor, measured in currency.

    Those of us who sympathize with that plight know that there are many causes of that inequality, but lack of access to currency seems to be the only solution known to cure all of the dysfunctions associated with being the low man on the totem pole on good head starts in life.

    The problem with the assumption/solution that empathetic organizations like the NAACP make is that moving wealth from the wealthy to the poor is very slow. The impact takes multiple generations.

    Republicans searching for ways to increase wealth redistribution know that and have become increasingly fearful of more equitable sharing of wealth, so they have created a socialist bogeyman to increase fear and anger in the hearts of voters. The power of the bogeyman is based on the myth that wealthy people are better sources of new ideas (innovation) for consumers (who are voters) that power economic growth. Of course, the entitlement mindset ties everything to collections of currency. The person with the largest collection of currency must be the most innovative.

    The GOP mantra is easy to debunk and has been for decades.

    So what’s a democracy to do? Try to move ahead based on mythology or stick to progress from the growth and application of human knowledge.

  7. I’d rather have ballot initiatives than an extension of voting hours. With early voting, I believe 6am to 6pm is sufficient to cast ballots.

    Poll workers already have a long day, and counting votes would likely go beyond most people’s bedtime.

    I agree that our Constitution needs updating, but I don’t see it happening with the makeup of our existing SCOTUS and Congress.

    Genocide Joe is bombing Yemen, Iraq, and Syria while providing bombs to Israel to commit atrocities in Gaza—time to limit the powers of the Executive branch as well.

  8. Genocide Joe’s affinity for violence is starkly notable. He is making Trump look like a peacenik.

    Not only is Genocide Joe aroused by his sniffing of children, he seems to be aroused by a primal predation for spreading death. This administration’s lack of a prudent defense wrt Covid notwithstanding.

    Genocide Joe seems to be a Republican.

    Genocide Joe Has To Go!

  9. Other states with extended hours for voting seem to manage the longer time just fine and have done so for a long time. IMO, Oregon has the answer to many of the issues discussed with their system of mail in ballots. Lots of controls in place for voters to be sure their votes are private, secure and counted. Their participation rates are astonishing when compared with those in Indiana. If only we had voters who cared enough to turn out and a slate with actual competition among party candidates. But our General Assembly remains firmly entrenched in the thrall of business and dark money.
    As far as the name calling goes, Todd is the master at simplistic propaganda.

  10. If any such Amendment were proposed, it would be necessary to put no limitation date on it and do whatever is necessary to prevent backsies, allowing a state to take back approval. That’s the history lesson we should have learned from the ERA.

  11. jd. Simplistic propaganda is a perfect description of that label. It reminds me of Rush Limbaugh calling women who wanted equality under the law “feminazis.” But, of course Rush was the one using Nazi tactics and Trump is the one who would actually support genocide if it worked to his benefit.

  12. JD,

    If Todd is the master of simplistic propaganda, Ian is the master of failed education and critical thinking. Amazing. I wonder who they work for.

  13. In spite of all the Repubs screaming fraud, mail-in ballots for anyone who requests one has worked very well in Arizona for a long time. And surprise, surprise, unfortunately IMO, a large number of Republican wackos have been elected to office in Arizona regardless, i.e., Paul Gosar for one.

    I moved to Arizona from Indiana in 2011. When I went to the DMV to get an Arizona license, they are required to ask whether you want to register to vote and also whether you want to receive a an early mail-in ballot. I have voted in every election held in Arizona since then and have yet to enter a polling place. In fact, I have no idea where I would go to vote in person. Of course, that would be easy to find out, but we are now — at least in the two most populus counties — Maricopa and Pima — switching to polling sites where anyone — no matter where they live in the county — can go to vote in person or even, if they choose, to turn their early mail-in ballot in person, if they don’t trust the USPS or the early drop off locations.

    So at least on one thing, I agree with Todd.

    Early mail-in ballots would be a good first step for Indiana. I realize with the current makeup of the Indiana — was going to say Legislature — but that does a disservice to that term — that will never happen.

    Luckily Arizona does have citizens ballot initiatives embedded in its State Constitution, even if the Republicans fight tooth and nail to make it harder to get an initiative on the ballot and even when one passes, they or their fellow travelers file lawsuit after lawsuit to try to keep them from going into effect. But sometimes the “good guys,” i.e. a majority of ordinary, everyday citizens get what they want. Let’s hope that the current attempt here to get abortion rights on the ballot and passed in the fall succeeds.

  14. I understand your position on this and generally agree with you on most of your positions most of the time.
    Yes, I am a Democrat and with that said I’ll say this. Is there really a need for our precincts to be open past 6 pm? I have regularly worked the polling stations since 2016. From about 4:30 pm until 6 pm it is very slow, not a lot of people come to the polling stations. I would say, 5-10% come in during those hours.
    I’m not against them being open but just wondering about the need.

  15. I don’t know why Vernon condons the genocide of those with a differing degree of melanocytes than himself….

    Perhaps he has a high degree of Klansman within his DNA?

  16. Sadly, Genocide Joe isn’t simplistic propaganda but absolute truth. The US should be leading the call for peace and condemning Israel’s actions. Instead, we move our Navy into position to help with the humanitarian crisis in Gaza. Our MIC has made a fortune off selling bombs and artilleries to Israel used to level schools, hospitals, and shelters.

    South Africa is right on target against Western hegemon.

  17. Humans have friends, countries have allies. We always told our kids to choose their friends well. The same sentiment applies to countries.

    Our allies stuck with us through the Trump years and the US used similar logic to support Isreal through their Netanyahu years.

    Hamas asked for war on Oct 7. Netanyahu might have chosen a proportional response, like Biden has against the Houthis, but did not. In fact it seems likely he looked at Oct 7 as an opportunity to expand Isreals borders.

    Our kids made mistakes growing up but we regarded them as learning opportunities reinforced by either self or parental imposed consequences.

    Republicans are simply advertising for jobs for their loyalists, nothing more. Trump has recruited his base by pursuing the most gullible who only want cheaper taxes regardless of the cost. That means less aid for both Isreal and Ukraine by abandoning the network of friends chosen by their value supporting democracy and trade.

    We simply cannot afford what they offer if we are to have a viable future in the world that’s coming.

  18. Pat – Most people in Indiana realize that if they try to rush to the polling place from work through rush hour, they may reach the polling place at 6:05 PM. Having lived in six different states, I can tell you that the end of the day is very busy when the polls are open until 8 PM.

    Of course, with more access to early voting and mail-in ballots, some of the pressure is off, but the Republicans try to limit those as well.

  19. Todd. Odd that you are not labeling Hamas as genocidal since the obliteration of Jews is their official position. They could stop the fighting by releasing the hostages they took. Instead they imbed themselves among civilians to create a situation where massive civilian casualties are inevitable.
    The whole situation is a hot mess with plenty of blame to go around, but calling Biden genocidal is ridiculous. He is trying to protect Israel, contain the war, and provide for aid to get into Gaza. Unfortunately, he is working against powerful forces that are invested in prolonging and escalating the war. I wonder what you would have him do in a situation where there are no good options. Abandon an ally? Sit back and do nothing? He is walking a tightrope and you seem to want to knock him off.
    Tell us. What would you do today if you were in his place? Instead of name calling, state your position and the policies you would implement to achieve it.

  20. What David Stippler wrote. It’s time to constitutionalize voting rights and Democrats should make it a campaign issue. It may take years to do, but the sooner we start the better.

  21. Sharon – that was an excellent reply to Toddʻs and Ianʻs name calling and mischaracterization of President Biden. You covered all the points I would like to make, and very articulately. Thanks!

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