Posted by AzBlueMeanie:

Voting is often referred to in terms of the "right to vote." Most Americans believe they have a "right to vote" guaranteed to them by the U.S. Constitution. They are sadly mistaken. The Constitution only prohibits certain discriminatory acts in voting under the 15th, 19th and 26th Amendments respectively.

The U.S. Supreme Court in Bush v. Gore constantly reminded the lawyers in that case that there is no explicit or fundamental right to suffrage in the Constitution – "the individual citizen has no federal constitutional right to vote for electors for the President of the United States." (Bush v. Gore, 531 U.S. 98, 104 (2000).

In fact, voting is a privilege of citizenship protected under the privileges and immunities clause of the 14th Amendment. This is why state and local governments are permitted to place qualifications and even onerous restrictions upon who is eligible to vote, and how elections are to be conducted (subject to certain federal restrictions). Voting is a state right, and all 3,067 counties in the 50 states have different rules about who votes and how.

The United States stands virtually alone on denying constitutional protection of the right to vote. 108 of the 119 democratic nations in the world have a right to vote in their Constitution — including the Afghan Constitution and the Iraqi Constitution. The United States is one of only 11 that do not. The Fundamental Right You Don't Have

The simple solution to this problem would be an Amendment to the U.S. Constitution declaring the right to vote to be a fundamental right of citizenship under the U.S. Constitution. There have been repeated attempts in Congress to have such a constitutional amendment approved by a two-thirds vote of Congress and the Senate and referred to the states for ratification, without success.

Rep. Jesse Jackson, Jr. (D-IL) in 2003 and subsequent years introduced legislation to add a voting rights amendment to the U.S. Constitution based on the individual right of all Americans to vote. It was introduced in the U.S. House as House Joint Resolution 28. Center for Voting and Democracy It read as follows:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

`SECTION 1. All citizens of the United States, who are eighteen years of age or older, shall have the right to vote in any public election held in the jurisdiction in which the citizen resides. The right to vote shall not be denied or abridged by the United States, any State, or any other public or private person or entity, except that the United States or any State may establish regulations narrowly tailored to produce efficient and honest elections.

`SECTION 2. Each State shall administer public elections in the State in accordance with election performance standards established by the Congress.  The Congress shall reconsider such election performance standards at least once every four years to determine if higher standards should be established to reflect improvements in methods and practices regarding the administration of elections.

`SECTION 3. Each State shall provide any eligible voter the opportunity to register and vote on the day of any public election.

`SECTION 4. Each State and the District constituting the seat of Government of the United States shall establish and abide by rules for appointing its respective number of Electors.  Such rules shall provide for the appointment of Electors on the day designated by the Congress for holding an election for President and Vice President and shall ensure that each Elector votes for the candidate for President and Vice President who received a majority of the popular vote in the State or District.

`SECTION 5. The Congress shall have power to enforce this article by appropriate legislation.'

The lack of any success in even bringing the voting rights amendment to the U.S. Constitution to a vote has led to other creative solutions being proposed.

One such creative solution is a proposal to expand upon the Help America Vote Act (HAVA) of 2002 to require states to upgrade their cross-check electronic voter data bases (social security administration, driver's licenses, vital statistics, etc.) and to institute a system of "universal" voter registration.

What is universal voter registration?

In a universal voter registration system, it would be the government's obligation to ensure that every eligible citizen was registered to vote. Individual citizens could opt out if they wished, but the registration process itself would no longer serve as a barrier to the right to vote.

Here are some of the important ways that federal policy can and should encourage the states to improve on the current voter registration system:

1. Mandate that the states put systems in place that would phase in universal voter registration, while preserving the states' ability to experiment with different systems.

2. Require states to immediately implement permanent registration, so that voters wouldn't have to re-register if they moved within a state.

3. Require states to implement Election Day registration, as a fail-safe mechanism for eligible voters missing from the voter rolls for any reason.

4. Provide the funding that states would need to ensure that every eligible voter is registered.

Brennan Center for Justice

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