Two weeks ago, with two rulings in two days, the Supreme Court gave a whole new meaning to what W.E. DuBois described as a “double consciousness” or a “two-ness” of being. When the Court’s decision in Windsor ruled a major part of the Defense of Marriage Act unconstitutional, as a gay man I was overjoyed. My joy over DOMA’s demise was tempered with concern and anxiety. The day before ruling on DOMA, the Court stuck a dagger in the heart of the Voting Rights Act. Suddenly, as an African-American, my right to vote was made harder to defend and easier to assail. The combination of the two rulings, however, reinforced my belief that government plays an indefensible role in the defense of civil rights, and deepened my conviction that its time for a constitutional right to vote.
Is It Time for a Constitutional Right to Vote?
We Need Government to Fight Discrimination
The Voting Rights Act, or what’s left of it, is one of the crowning achievements of the civil rights movement of the 1950s and 1960s that affirmed and relied upon the federal government’s role in fighting discrimination and defending civil rights. Writing in The Nation, Peter Cole answers the question put to him by a “vaguely libertarian” student: “Is it possible to end discrimination without building up government?” In other words, “Do we need the government to fight discrimination?”
Yes. Not only do we need government to fight discrimination, but it is better equipped to do so than any other entity or institution, and more effective. Fighting discrimination, Cole writes, requires setting standards for individual and collective behavior, spreading those standards through education, and enforcing standard by creating consequences for violating them. Government provides essential pathways to participate in setting those standards, and defining recourse when standards are not met. Its institutions provide important leverage for social changes.
The libertarian asks if the same can be achieved through volunteerism an individual embrace of standards. It’s possible, Cole says, but without the critical pathways to participation in the process of change, minorities are left to rely on the good will of people who may not even be aware of their own prejudices. Non-government entities like churches, corporations, and media outlets can and do contribute to change. But none offer avenues for public participation and input in their decisions, as government does. That’s why every progressive movement for social change has sought to influence government at the local, state and federal levels.
The government’s role in fighting discrimination is baked into our democracy, in a way that Justice Antonin Scalia seems unable to grasp. Salon’s Nicholas Buccola writes that Scalia, in his dissent to the DOMA ruling, confuses the power of the majority with rightness or righteousness. Might, in this case might in sheer numbers, makes right. (Ironically, muse one day before, Scalia happily joined the majority of the Court to gut essential parts of the Voting Rights Act.
Scalia equates majoritarianism with democracy. But majority rule cannot be the only expression of power in a democracy, or the majority will use its power to tyrannize the minority — as with DOMA, which the majority opinion said that the sole purpose of the law seemed to be marginalize even further a already marginalized group. Judicial checks on the tyranny of the majority can expand civil rights over time, as with DOMA. But sometimes the courts can become part of the tyranny of the majority, as with the decimation of the Voting Rights Act. That’s where other branches of government come in.
Fixing the Voting Rights Act
The Supreme Court ruled section 4 of the Voting Rights Act unconstitutional, based on the formula used to identify those states and localities where racial discrimination was more prevalent. Ruling section 4 unconstitutional virtually gutted section 5 of the Act, which required certain states and municipalities to get the consent of the Department of Justice before implementing laws that could restrict the voting rights of minorities.
Without section 5, there’s no effective way to stop discrimination in voting before it starts. The remaining sections of the Voting Rights Act offer some avenues for redress, but primarily through after-the-fact litigation. Individuals can still sue if they face discrimination at the ballot box, but the discriminatory laws still stand, and the people remain disenfranchised as cases wind their way through a judicial system slowed to a near halt by vacancies on the federal bench. Even when people get their day in court, the loss of sections 4 and 5 puts the onus on the plaintiffs to prove that states intended to discriminate.
Nancy Peolsi (D-CA) is reportedly mulling the introduction of a revised voting rights act named for Rep. John Lewis (D-GA). While it’s unlikely that the “laziest Congress ever” is going to rise to the occasion, there are several ways Congress can fix the Voting Rights Act. First and foremost, Congress can simply rewrite section 4, and answer the Court’s concerns by either requiring states with recent voting rights violations to seek consent from the Department of Justice before implementing laws that could limit or suppress minority votes, or by requiring all states to “pre-clear” such changes with the Department of Justice. In addition, section 2 could be rewritten to require state and municipalities to demonstrate necessity before implementing voting laws, thus shifting the burden of proof to the states without section 5.
Rep. James Clyburn (D-SC) has raised the issue of establishing national standards in a revised Voting Rights Act. Clyburn urges that a revised Act require all state to abide by certain minimal standards, including a required minimum number of days for early voting. Other standards could apply to redistricting, ballot access and voter ID laws.
A Right to Vote
That the Voting Rights Act needs fixing, and was even necessary in the first place underscores a glaring lack of any explicit right to vote in the constitution. The constitution never explicitly spells out or ensures a right to vote, but merely describes the ways people cannot be denied the right to vote. (It was less a right than a privilege bestowed upon white, male property owners.) The qualifications for voters are left to the states. As long as those qualifications don’t conflict with the constitution, the right to vote can be denied.
So why not amend the constitution to include a clearly defined right to vote? In happier times former Rep. Jesse Jackson Jr. championed a “Right to Vote Amendment.” Since then, Reps. Keith Ellison (D-MN) and Mark Pocan (D-WI) have taken up the cause by introducing a Right to Vote amendment that would:
- guarantee the right to vote to every citizen
- empower Congress to establish minimum electoral standards
- provide protection against disenfranchisement of individual voters
- ensure that every vote cast is counted correctly
Whether a constitutional right to vote is attainable remains to be seen. This Congress is even less likely to make much progress on such a right-to-vote amendment, than it is to pass a revised Voting Rights Act. But the fight to establish and defend the right to vote for every American citizen, is far older than this Congress, and will certainly outlast this Congress. That makes it winnable right in the long-term, if not the short term That’s a fight worth having.