Do you have a friend, someone you knew when you were little, that you describe as your best friend in the world when in reality you haven’t seen or heard from them in 30 years and have no idea who they are or if they’re even alive? If so, then you understand the relationship that America has to voting. Our sentiments about how much we love voting and how important it is to our society have just as tenuous a connection to reality as your friendship with the kid you once ate sand with and never saw again. We say we like it, but we haven’t seen it in decades.
The right to vote has been a theoretical cornerstone of the American project since day one. In opposing the rule of King George the III, the American revolutionaries wanted not just freedom from a set of particularly onerous policies, but freedom from monarchy in exchange for a shot at democratic rule. Since then, suffrage and access—that is, who can vote and how easy it should be—have long been the dual prongs of fights for the right to vote, and central questions to social movements. When fighting for women’s suffrage, Susan B. Anthony asked, “Here, in this very first paragraph of the Declaration, is the assertion of the natural right of all to the ballot; for how can ‘the consent of the governed’ be given if the right to vote be denied?” (Of course, many historical figures like Anthony, warmly remembered for their contribution to this fight, did not actually view every governed person as equal.) Meanwhile, the investigative reporter Ida B. Wells wrote about how the KKK and its ilk violently attacked and sometimes killed Blacks “to intimidate, suppress, and nullify [their] right to vote,” all under the willfully blind eye of the State. Just as it had been a central issue of the Civil War, the right to vote remained at the heart of the most contentious fights in this country’s history long after the passage of the 15th Amendment. Expanding this right—starting with the removal of barriers to registration and access to the ballot—would become an important part of the Civil Rights Movement’s platform. It would culminate in the passage of the Voting Rights Act and be followed by decades of litigation against attempts to circumvent these new protections.
By habit and tradition, we tend to think and speak of the right to vote as a positive right. Positive rights promise us certain things like money, goods, or services, or other types of tangible benefits. We think of the right to vote as a guarantee to a fair shot at expressing how we the people want to be governed. But this is not how the right to vote exists in reality, nor how it’s described by the Constitution. Every explicit reference to the right to vote describes it as a negative right. Negative rights, as contrasted with positive rights, are a promise not to impose certain things on us, be they constraints, interferences, or the freedom from oppressive practices. The 15th Amendment states that “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.” The 19th Amendment says the same, but substitutes sex in the place of race; the 24th Amendment substitutes the failure to pay poll tax or any other tax; and the 26th Amendment substitutes any age restriction other than 18 years old.
It’s not so much that we’re entitled to vote, the Constitution tells us: Rather, we are guaranteed freedom from some voting interference on the basis of some reasons. Because the right to vote is not a positive right, nothing in the law compels States to use their power to maximize the odds that individuals will deploy their right to vote. They are merely disallowed from certain specific kinds of infringements. The government can effectively restrict voting access for any reason other than the few enumerated prohibitions, and the right still has not been violated in any legal sense.
This renders the right almost meaningless. Take three facts: (1) A state can abridge or deny a felon or incarcerated person’s right to vote, because the Constitution does not explicitly prohibit this kind of restriction. (2) A state has broad power to criminalize certain acts and incarcerate as many people as it pleases. (3) Now add the possibility that Black voters in that State might, on average, support more left-of-center economic policies. You could see how a legislature intent on passing more conservative economic policies might be tempted to incarcerate as many Black people as possible, in part to dilute the group’s voting power. (Now imagine a world in which States can still count non-voting prisoners in their population numbers, which increases the number of seats they can claim in the House of Representatives… Perhaps this reminds you of arguments Southern states made about counting enslaved people as part of the population without giving them the franchise. Sadly for the Southern states, enslaved people were only counted as 3/5ths of a person… but we digress.)
Because the “right to vote” is negative and largely exists only on paper, it has suffered a drawn out death by a thousand policies. Take voter ID laws for example. Though the federal law (known as the 2002 Help America Vote Act or “HAVA”) does not require an ID to vote, 10 states currently require a valid ID at the polls. Without this ID, the voter must cast a provisional ballot that can only be counted if they later complete a slew of other steps. 24 more states require a proper ID at the polls, but will accept an affidavit attesting to the voter’s identity to cast a regular ballot. Why on earth require an ID in the first place? A hint may lie in the fact that while a relatively small number of people do not have any form of valid ID, a greater proportional share of this population is Black and Latino. Moreover, the ID-less people are concentrated in particular districts in the country, which sometimes works out to the advantage of the political party advancing these voter ID laws. As such, voter ID requirements necessarily restrict a segment of the population’s ability to exercise their right to vote. This, of course, raises the question of whether they have the right at all. (Anybody who says “Well, why can’t they just get an ID?” has never spent time at a Southern DMV. Oh, you don’t have your original birth certificate, two current forms of proof of address (only certain types accepted), your forms filled out exactly correctly, and a personal check for the requisite fee? Sorry you waited three hours! Bureaucratic inconvenience is not a trivial obstacle, and is a traditional—perfectly legal—way of interfering with people’s voting rights. The more little hurdles like this one puts in place, the more voting requirements begin to resemble the literacy tests of the Jim Crow era, which didn’t render voting impossible but simply made it so confusing that in practice, it was impossible to do. Unless the right to vote means the right to vote with minimal burdens, then it’s as meaningful as it was in 1950s Alabama, where the registration office was open for about two hours every other Monday.)
Voter registration itself is another “peculiar” limitation on the franchise. The majority of states require people to affirmatively register to vote, and to do it by a certain (often arbitrary) deadline if they wish their vote to be counted. Registering for the first time can be an uphill battle. In the District of Columbia, which does not even benefit from substantive federal representation in Congress, the requirements to register by mail make it difficult for very young voters and homeless people to exercise their voting rights. Not only must citizens submit a driver’s license or social security number, but also one of the following documents: a copy of a current and valid government photo identification; or a copy of a current utility bill; or a copy of a current bank statement; or a copy of a current government check; or a copy of a paycheck; or a copy of a government document showing the voter’s name and address. Why on earth would we condition this all-important right on having a utility bill (and being able to find it in that drawer that you never look in)?
States are creative in their restrictions, and many seem neutral, but more and more roll out every year with little logical justification. Consider the matter of staying on the voter rolls, which is infinitely harder than it should be. Paradoxically, even though one of the federal National Voter Registration Act’s (“NVRA”) stated goals is to increase voter registration, it also eases the un-registration of voters, by allowing states to purge voters from their lists with relatively little difficulty. States rely on this law to keep the rolls “clean,” claiming that this is essential to prevent voter fraud, even though the occurrence of intentional voter fraud remains staggeringly low.
And so, supposedly in order to clear the names of the deceased and non-residents from the voter rolls, states un-enroll thousands of eligible voters every year. As the Supreme Court just affirmed in Husted v. A. Philip Randolph Institute, it is perfectly acceptable to purge the voter who fails to return a “confirm your address” postcard and fails to vote in two or three consecutive federal elections—both factors that, even combined, tell us very little about whether a voter is in fact dead or no longer a resident of the voting jurisdiction. Meanwhile, a White House with a greater-than-average reactionary bent can use the NVRA to actually sue states to force them to purge their voter rolls.
But those are just the barriers erected against people whose votes are actually counted! Thousands of currently and formerly incarcerated citizens are denied the right to vote under any circumstance. Meanwhile, the citizens who reside outside the 50 states—the millions of people who call the District of Columbia, Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands home—must make their peace with the government abridging and denying their right to vote every election.
If the right to vote is important, then we deserve an actual right to vote. Not a right in whose soil a thousand obstructions bloom, but a meaningful right. One should not just be entitled to the right “to vote,” but to vote as easily as possible. Though the positive right/negative right distinction may appear purely academic, it is actually very meaningful. A positive right to vote would place the onus on states to do more than not interfere. Instead, the states would be required to use the money and technology at their disposal to make voting as convenient as possible for all eligible citizens. For instance, there is no reason, in 2018, why one shouldn’t be able to vote online. Countries like Estonia and Canada have successfully experimented with online voting as a means of increasing participation. As one of the most technologically advanced nations in the world, the United States should be at the forefront of developing systems to securely accept votes other than by paper mail. A right to vote easily could take on different forms, but it would not necessarily require reinventing sliced bread.
Of course, there are some people who argue that making voting too “easy” is actually dangerous for democracy. As far as we can tell, their concerns (leaving aside objections that are blatantly racist or nonsensical) are centered around voter fraud. So far as any investigation has ever been able to uncover, voter fraud is an almost non-existent problem in reality, and outsize fears about fraud in no way justify the mass disenfranchisement of huge swathes of the population. Of course, some people might argue that the risk of fraud will increase if we move to a more convenient, electronic voting system. But after all, tax and court filings, banking transactions, and even communications about healthcare happen electronically and online every day. There are equivalent security concerns present in those situations, and often fraud is much more damaging. But we have allowed those things to exist in the electronic space because we value ease of commercial transaction, and believe the benefits outweigh the risks.
Voter registration is an easy problem with already-available technological solutions. Three states in the Union have already adopted automatic voter registration. Multi-state and federal databases like the Electronic Information Registration Center and the U.S. Social Security Death Index already allow states to rapidly determine if people have changed voting jurisdictions or passed away. There is no reason any state should be purging massive numbers of voters from their rolls on the basis of their failure to return a paper card.
But we can also think bigger. Why have voter registration at all? Certainly, there are easy fixes to our current voter registration regime that could be implemented right now to make all of the procedures better. But we should also question the extent to which any of these procedures are even necessary. Do minor security or fraud concerns justify IDs, registration, and voter rolls?
What would an optimum positive vision of voting look like, where we actually tried to give the most access to the most people? First, it would include extending the vote to all residents of the United States, regardless of incarceration, immigration status, or anything else. (Frankly, there’s even a good argument that even people that live outside the U.S. should have the right to vote in U.S. elections because of the impact the U.S. has on international politics and conditions… but we’ll leave that for another day). Secondly, it would mean removing all existing barriers to voting. Any registration, identification, timing, geographic, or financial costs associated with voting would be done away with. Once all barriers are removed, we need to affirmatively seek to make voting possible to the largest number of people possible. This could include programs such as a compensated day off for voting, voting electronically from home, and taking seriously the concerns of those with disabilities who are often prevented from accessing what may seem like universally accessible programs.
If we truly believe ourselves to be a country in which the right to vote is a core value, then we should act like we actually want people to vote. But as long as the right to vote remains but a vague conditional promise on paper, we are doomed to watch its degradation continue at the polls and in the courts. For how can “the consent of the governed” be given if the ability to consent does not meaningfully exist?
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