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Tuesday, June 05, 2012

In Whom Is The Right Of Suffrage? In The Man Or In The ID?

Today a man owns a jackass worth fifty dollars and he is entitled to vote; but before the next election the jackass dies. The man in the meantime has become more experienced, his knowledge of the principles of government and his acquaintance with mankind are more extensive, and he is therefore better qualified to make a proper selection of rulers—but the jackass is dead and the man cannot vote. Now, gentlemen, pray inform me, in whom is the right of suffrage? In the man or the jackass?

 - Benjamin Franklin


It's good to see that not only FL's county supervisors doing the right thing in stopping Lex Luthor's purge of voter rolls, they're actually reinstating people wrongfully removed.  One hopes that the Obama DOJ's finally rousing itself from the doldrums will help there and nationwide as the epidemic of voter disenfranchisement threatens millions of people's rights.

I found it interesting that Justice has limited its concern to Section 5 of the VRA and Motor Voter requirements regarding maintenance of voter rolls.  I suppose that still leaves open the issues of discrimination covered under Section 2, which according to SCOTUS:

[Made] clear that a violation could be proved by showing discriminatory effect alone, and to establish as the relevant legal standard the "results test"...

Anyway, with all the handwringing about the danger of mythical voter fraud, I thought the Anti-Voting Crusaders might find it instructive to look at the text of our Constitution for a few moments.  Crazy, I know.

Article I, Section 2: [T]he Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

It's important to observe that the only national requirement we originally had regarding voting eligibility was tied to what were ostensibly the most liberal qualifications in each state.  This provision was debated in Convention, with some delegates advocating for limiting the franchise to property owners and several--including George Mason, author of Virginia's Declaration of Rights, Ben Franklin, 1st Post Master General, and John Rutledge, 1st post-Independence governor of South Carolina--very much against.

James Madison said at the time:

The right of suffrage is certainly one of the fundamental articles of republican Government, and ought not to be left to be regulated by the Legislature. A gradual abridgment of this right has been the mode in which Aristocracies have been built on the ruins of popular forms.

The Framers left most electoral matters to the Several States and added no new restrictions while allowing for fairly open access to voting, relative to the time.  Regardless, between 1790 and 1850 the property requirement faded away, with Virginia being the last holdout.  Speaking of which, in 1829 the state held another constitutional convention wherein a statement was received and delivered by Chief Justice John Marshall:

Among the doctrines inculcated in the great charter handed down to us, as a declaration of the rights pertaining to the good people of Virginia and their posterity, "as the basis and foundation of Government," we are taught...

That all power is vested in, and consequently derived from, the people.

That a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish the Government.

That no man, nor set of men, are entitled to exclusive or separate emoluments or privileges, but in consideration of public services.

That all men, having sufficient evidence of permanent common interest with, and attachment to the community, have a right of suffrage, and cannot be taxed, or deprived of their property, without due consent, or that of their representative, nor bound by any law, to which they have not, in like manner, assented, for the public good."

How do the principles thus proclaimed, accord with the existing regulation of suffrage? A regulation, which, instead of the equality nature ordains, creates an odious distinction between to the members of the same community; robs of all share, in the enactofment of the laws, a large portion of the citizens, bound by them, and whose blood and treasure are pledged to maintain them, and vests in a favored class, not in consideration of their public services, but of their private possessions, the highest of all privileges; one which, as is now in flagrant proof, if it does not constitute, at least is held practically to confer, absolute sovereignty.

We saw a similar democratizing trend in selection of presidential electors.  By 1832, every state except South Carolina (who stuck with the old way until the Civil War) had moved from Legislature-based to a popular vote method.  While we retain some anti-democratic mechanisms of governance--the Senate's equal representation, the Electoral College--the foundations of our republic are very much democratic at the state level.

What's more, the US Constitution has followed the same historical arc from almost the beginning.  To those who suggest that voting is a privilege, not a right, I submit the following:

  • Amendment 9 (1791): The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. - There might be no "right to vote" explicitly spelled out in the original document, but I defy anybody to really put forth an argument, particularly in light of the Convention Debate cited above, that we don't have a basic right to suffrage.
  • Amendment 14 (1868): [W]hen the right to vote at any election...is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged...the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. - We focus a lot on Due Process in the 14th, but let's not forget that States will lose representation if they deny citizens (legally qualified per the era's norm of 21+) their franchise.
  • Amendment 15 (1870): The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. - Just in case it wasn't clear, black 21yos couldn't be denied the vote.
  • Amendment 17 (1913): The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof... - Not an expansion of WHO can vote, but for WHOM we can, akin to popular selection of presidential electors.  Note the qualifications for voting are now the same as for the House (Art I, Sec 2).
  • Amendment 19 (1920): The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. - So now 21yo women can finally vote, not long after Wilson demanded we make the world safe for democracy.
  • Amendment 23 (1961): The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President... - Didn't extend the presidential vote to a class of persons, but to an entirely disenfranchised population that still isn't represented in Congress by virtue of geography.
  • Amendment 24 (1964): The right of citizens of the United States to vote...shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. - All citizens have skin in the game and should be able to vote, and no State should be able to erect barriers that have disproportionate impact on certain demographics.
  • Amendment 26 (1971): The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. - The boys (yes, boys) killing and dying in Vietnam surely had a right to participate in the political mechanisms sending them away.  Interestingly enough, in some states like Vermont, 17yos can vote in primaries if they'll be 18 by the General--get them participating as early as possible!

The United States got off to an uneven start, yet overall we have a history of methodically expanding the franchise, becoming more democratic whilst maintaining a republican system.  Voter purges, restrictions on registration, ID requirements, etc, are all steps backward to prevent a nonexistent threat.  But you already knew that, unless you're a Republican.


Show a little "yuhyoohappy" during the NTodd Ain't Ann Romney Fundraiser *

June 5, 2012 in Constitution, Schmonstitution | Permalink


An excellent exposition, NTodd, of the history of the right of suffrage in America. If Franklin was concerned that a man with a dead ass could lose his franchise, I am concerned with a different issue, also of property, which has always been present but has come to dominate in the past two years. The issue is best summed up in three times two words:

* Koch brothers,
* Corporate personhood,
* Citizens United.

The three in concert are liable to render our franchise irrelevant. Again and again, in studies over my adult lifetime so numerous I'll leave it to the reader to locate them, it has been shown that the candidate who has the most money spent in his or her behalf wins the office, or the side of a referendum on behalf of which the most money is spent wins the referendum. Perhaps the courts can undo the wrongs inflicted by such "speech"/spending; perhaps not. But that phenomenon is scarcely in dispute... and if it prevails for a decade or a century, our status as a representative democracy is greatly compromised.

I'd be grateful for your explicit suggestions of how we can save ourselves. I've grown rather fond, in my nearly 64 years, of republican [lower-case 'r'] government, and have no intention of letting go of it in my last few years without a fight.

Posted by: Steve Bates | Jun 5, 2012 9:57:11 PM

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