A New Right to Vote? Voter Suppression and the Judicial Backlash
Is there a clear constitutional right to vote in the United States? The answer, traditionally, has been no. That’s what Republican-dominated states were banking on when they moved, after the 2010 elections, to restrict the franchise. But their campaign has seen a legal backlash against those efforts—one that may end up establishing that there is a right to vote in the U.S. after all.
Many people are surprised that the Constitution contains no affirmative statement of a right to vote. Several amendments phrase the right in a negative way: the right to vote shall not be denied “on account of race” (fifteenth amendment), “on account of sex” (nineteenth), or, as long as you’re eighteen, “on account of age” (twenty-sixth, which lowered the voting age from twenty-one). But within those broad strictures, the Constitution has long been read as leaving up to the states how to register voters, conduct elections, and count the votes.
After the electoral landslides of 2010, the new Republican administrations in eleven states took advantage of this broad latitude to enact laws that limited the right to vote. (Jane Mayer wrote about these laws in the current issue of The New Yorker.) Many of these laws purported to address the problem of voter fraud (which may not in fact exist) by imposing photo-I.D. requirements at the polls. At the time, these laws seemed to be on solid legal ground. The Supreme Court, in an opinion by liberal hero John Paul Stevens, had given its imprimatur to an Indiana photo-I.D. law in 2008. According to Stevens, the law served Indiana’s “interest in protecting the integrity and reliability of the electoral process.” In light of Stevens’s opinion, it seemed like the states had carte blanche to change their laws.