Students Speak: The Right to Vote: A Constitutional Guarantee or Privilege?

To celebrate our first 50 years at The Santa Barbara & Ventura Colleges of Law, we’ve asked our students to revisit historical and noteworthy cases.

Part one of this article follows the origin of voting laws in the United States, from the U.S. Constitution to the Voting Rights Act of 1965. This history shows how individual states determine their own voting laws, allowing them to legally disenfranchise whole communities from voting.

Part two focuses on California’s felony disenfranchisement laws, as it compares to other states. While some states insist on permanently disenfranchising ex-felons, California, like most states, continues to expand their voting rights.

Who has the right to vote?

“There is no constitutional right to vote” sounds like the beginning of a Margaret Atwood novel. But, unlike other rights listed in the Constitution, such as the right of the people to keep and bear arms in the Second Amendment, or the right to a speedy and public trial in the Sixth Amendment, the Constitution may not explicitly give U.S. citizens this beloved “right” to vote.

Scholars disagree whether the U.S. Constitution gives Americans the right to vote. Some believe that the right is implicit, embedded in the Equal Protection Clause of the 14th Amendment, and others argue that the right does not exist.

While scholars might not agree if the Constitution guarantees the right to vote, the U.S. Supreme Court does not hesitate to affirm the notion. In the 1972 decision in Dunn v. Blumstein, Justice Marshall stated, “In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” And again in the 1974 Richardson v. Ramirez case, Justice Rehnquist wrote: “Because the right to vote ‘is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government,’… voting is a ‘fundamental’ right.”

The United States Constitution: The Supreme Law of The Land

It is common for public opinions and judicial interpretations to conflict, but what does the U.S. Constitution actually say about the “right to vote”? The first time the phrase “right to vote” is used is in the 14^th Amendment: “But when the right to vote at any election … is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.”

Framers of this amendment threatened the loss of congressional representation if that state were to deny the right to vote to any of its (male) U.S. citizens over the age of 21, unless he participated in a crime.

Since the addition of the 14^th Amendment, the U.S. Constitution has been amended four more times to prohibit states from denying the right to vote based on race, color, or previous condition of servitude (15^th Amendment), sex (19^th Amendment), failure to pay poll tax (24^th Amendment), and age, 18 years and older (26^th Amendment).

No constitutional provision asserts that there is a right to vote; only that states cannot deny the right to vote based on the above-mentioned criteria. As Vanessa A. Bee and Oren Nimni, contributors to Current Affairs, so eloquently write, “It’s not so much that we’re entitled to vote, the Constitution tells us: Rather, we are guaranteed freedom from some voting interference on the basis of some reasons.”

State’s authority in voting laws

So, where do states come in? Under Article II, Section 4 of the U.S. Constitution, states are accountable for managing federal elections. Most states explicitly assert the right to vote for each of its citizens in its state constitution.

Although, this is not a right that states are required to grant: Section 2 of the 14^th Amendment “penalizes states that withhold the ballot but does not require them to grant it.” Thus, if a state grants the right to vote for citizens of its state, then the state will be punished if they prevent a state citizen from voting using specific criteria. Bee and Nimni write: “[States] are merely disallowed from certain specific kinds of infringements. The government can effectively restrict voting access for any reason other than the few enumerated prohibitions, and the right still has not been violated in any legal sense.”

Voting Rights Act of 1965

Congress has continued working on ensuring voting rights beyond the U.S. Constitution throughout history. To coincide with the 15^th Amendment, Congress passed the Civil Rights Act of 1870 (amended in 1957, 1960, and 1964) to prohibit states from denying the right to vote based on race, color, religion, sex, and national origin, through violence, threats, intimidation, and destruction of property.

The Voting Rights Act of 1965 arose out of the Civil Rights era to enforce the prohibition of states to deny the right to vote based on race, color, and the ability to read English. Furthermore, this act issued a “preclearance” provision to prevent historically racist states from changing voting laws to limit a minority vote.

Seeing as Congress has ratified multiple constitutional amendments and passed the aforementioned acts (over the span of approximately 100 years), it may seem that they have taken many precautions to prevent states from denying the right to vote to citizens. However, much has changed since the decision in Shelby County v. Holder in 2013.

Section 5 of the Voting Rights Act of 1965 was originally designed to prevent historically discriminatory states from making changes to their voting laws and procedures without first seeking approval or “preclearance” from either the Department of Justice or a federal court.

“In the Shelby County decision, the Supreme Court eviscerated that portion of the law, giving states with a history of discrimination free rein to change their voting laws without prior approval,” according to the Brennan Center for Justice. The federal government will intervene to the extent that they can to protect the voting rights of citizens, but ultimately, the power and authority will be returned to the states.

The right to vote: Implicit or merely privilege?

Since the U.S. Constitution and the U.S. Supreme Court both point to state law regarding voting rights, it is up to the individual state to determine how it wants to distribute those voting rights. Noah Millman, political columnist for The Week, believes that because there is no constitutional right to vote, the right is treated as a privilege. He argues: “So long as the Constitution presumes that the franchise is a privilege rather than a right, something that states may legitimately seek to limit so long as they don’t do so in certain specified ways or for certain explicit reasons, there will always be a legitimate basis for upholding laws that impose such limits.”

Because states are permitted to restrict the right to vote—making it seem more like a privilege than a right—there is a large class of people across the United States who lose their voting rights: convicted felons. Each state carries the weight of responsibility for determining if a felon or ex-felon can or cannot vote, therefore voter disenfranchisement varies across the country.

ABOUT THE AUTHOR:

Becoming an attorney was not originally one of Sarah Swisher’s career goals as she received her bachelor’s and master’s degrees in theology from Loyola Marymount University. But after teaching high school for a few short years, her passion for social justice (and several months of late-night soul searching) guided her to The Santa Barbara & Ventura Colleges of Law. As a current 3L student, you will always find Sarah juggling a cup of coffee and a water bottle.

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