[EL] U.S. Constitution Contains No Explicit Right to Vote

[Greenberg, Kevin]

Yes, Jon, the right to vote is Constitutionally granted.

But Rep. Pocan also has it wrong; it's already in there.

First, it's in the penumbra of rights clearly implicitly identified.  I know, you strict constructionalists don't like that.

Second, it is expressly recognized by reference in the various non-discrimination amendments.

Third, there is an express right to the franchise with respect to Congress in Article I, Section 2, and the 17th Amendment, Section 1.  That should be good enough for the "stricties".

Unless Rep. Pocan wants to modify the means by which states elect electors or modify non-federal elections (which isn't what he's talking about), I don't see a purpose for his proposed amendment.

It would be interesting to see if the Nebraska/Maine elector model would survive under the proposed language.


Kevin Greenberg
(215) 279-9912


From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jon Roland
Sent: Friday, May 31, 2013 11:30 AM
To: law-election at department-lists.uci.edu
Subject: [EL] U.S. Constitution Contains No Explicit Right to Vote

Contrary to popular belief, voting in government elections and referenda is not a right, but a privilege, created by constitutions and laws, and subject to being withdrawn by them. It has always been thus, and careful consideration of the underlying theory should reveal why it has to be that way.

That is not to say that we may not have rights not to have exercise of the privilege impeded or penalized on certain grounds. That is what several amendments to the U.S. Constitution do, concerning such grounds as race, previous condition of servitude, gender, age 18 or above, or not having paid a tax.  But that still allows restriction based on such things as citizenship, residence, registration, identification, public service, good conduct, education, or wealth. The fact that every state has removed restrictions based on public service, education, or wealth doesn't mean they couldn't impose them. And restriction based on citizenship and residence is explicitly supported by the Constitution, although it leaves to the states to legislate how long the residence must be and how to verify it. Many states also deny the vote to those convicted of a felony, at least while they are under penal supervision. There was a time in some states where voting could be denied to those who, though fit, refused to take an oath, or serve in militia, or on a jury, or testify under oath in court.

The key concept is that a voter, called an elector in the Constitution, is a public office, with a public duty attached. One does not have a right to hold a public office. That has to be earned, and that is why it is a privilege that can be lost if the individual does not demonstrate he or she is worthy of it.


-- Jon



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