Making the right to vote a fundamental constitutional right

Posted by AzBlueMeanie:

I have posted about this topic from time to time whenever a member of Congress introduces a bill for a constitutional amendment that would make the right to vote a fundamental constitutional right. This is important, because fundamental constitutional rights are subject to the strict scrutiny standard of review by the federal courts. Currently the right to vote, which is not expressly guaranteed in the Constitution, is generally reviewed under the rational basis standard of review.

Under the strict scrutiny standard of review, most of the attempts to restrict voting rights that we have seen in recent years would not pass constitutional muster.

John Nichols writes at The Nation, Congressmen Seek Constitutional Guarantee of the Right to Vote:

Supreme Court Justice Antonin Scalia made a point of emphasizing during the Bush v. Gore arguments in December 2000 that there is no federal constitutional guarantee of a right to vote for president. Scalia was right. Indeed, as the reform group FairVote
reminds us, “Because there is no right to vote in the U.S.
Constitution, individual states set their own electoral policies and
procedures. This leads to confusing and sometimes contradictory policies
regarding ballot design, polling hours, voting equipment, voter
registration requirements, and ex-felon voting rights. As a result, our
electoral system is divided into 50 states, more than 3,000 counties and
approximately 13,000 voting districts, all separate and unequal.”

Mark Pocan and Keith Ellison want to do something about that.

The two congressmen, both former state legislators with long
histories of engagement with voting-rights issues, on Monday unveiled a proposal to explicitly guarantee the right to vote in the Constitution.

“The right to vote is too important to be left unprotected,” explained Pocan,
who announced the initiative at the state capitol in Madison,
Wisconsin, where the Republican state assembly speaker recently
announced plans to enact restrictive “voter ID” legislation before the
2014 election. “At a time when there are far too many efforts to
disenfranchise Americans, a voting rights amendment would positively
affirm our founding principle that our country is at its strongest when
everyone participates. As the world’s leading democracy, we must demand
of ourselves what we demand of others—a guaranteed right to vote for
all.”

Without that clear guarantee, argues Ellison,
politicians continue to propose and enact legislation that impedes
voting rights. Noting recent wrangling over voter identification laws,
burdensome registration requirements and reduced early voting
opportunities in various states, as well as a challenge to the Voting Rights Act that is now under consideration by the US Supreme Court, the Minnesota Democrat, who co-chairs the Congressional Progressive Caucus,
says, “Even though the right to vote is the most-mentioned right in the
Constitution, legislatures across the country have been trying to deny
that right to millions of Americans, including in my home state of
Minnesota. It’s time we made it clear once and for all: every citizen in
the United States has a fundamental right to vote.”

If approved by the Congress and then ratified by three-fourths of the
states, it would add to the founding document this declaration:

SECTION 1: Every citizen of the United States, who is of
legal voting age, shall have the fundamental right to vote in any public
election held in the jurisdiction in which the citizen resides.

SECTION 2: Congress shall have the power to enforce and implement this article by appropriate legislation.

There is nothing radical about that language. It outlines a basic
premise of the American experiment, and a concept that the United States
has proudly exported. Indeed, when the US has had a hand in shaping the
destinies of other lands, as well as international agreements, the
primacy of the right to vote has been well understood and explicitly stated.

* * *

Americans have considered right-to-vote amendments in the past. But
the frequency with which contentious debates are erupting
nationwide—just this year, according to the Brennan Center for Justice,
more than eighty bills to restrict voting have been introduced in more
than thirty states—has already inspired significant activism on behalf
of constitutional reform.

“The right to vote is the foundation of any democracy,” says FairVote
executive director Rob Richie. “Adding an affirmative right to vote to
the US Constitution is the best way to guarantee that the government,
whether at the federal, state, or local level, cannot infringe upon our
individual right to vote. Building support for this amendment offers an
opportunity to inspire a twenty-first-century suffrage movement where
Americans come together to protect voting rights, promote voter
participation and debate suffrage expansion.”

Republicans, of course, will oppose this amendment on the specious grounds of "states rights." They also understand that it will result in the strict scrutiny standard of review, which would bring a halt to their multi-faceted attempts to limit the right to vote, and to make it as difficult as possible,

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