The lack of an affirmative right to vote in the U.S. Constitution has lead to disparities and legal vacuums that reduce access to the polls, especially for communities of color.
Take a recent voting rights case in Pennsylvania, where the state’s supreme court struck down the legislature’s redistricting map for violating the state’s constitutional right to vote. The ruling is good news, as it means that voters’ voices will be better represented in their elected leaders. Pennsylvania is one of only a handful of states that have recognized an affirmative fundamental right to vote in its state constitution.
But there is no such explicit protection under the U.S. Constitution. And that’s a problem. The right to vote, which protects all other rights, is too important to be left up to individual states. While it’s good news for the citizens of Pennsylvania that the Pennsylvania’s Supreme Court recognized the state constitution’s right to vote, this may be of little comfort to those across the country whose rights are not explicitly protected. A robust, explicit right to vote at the federal level would go a long way in preventing partisan efforts to reduce the voice of the electorate.
In a piece in the Los Angeles Times, Prof. Joshua Douglas reflects on t the discrepancies between the state and U.S. Constitution, and reiterates the need for a fundamental right to vote, saying:,
“ [T]he Pennsylvania Constitution explicitly protects the right to vote. The U.S. Constitution is less specific. It instead says that states cannot discriminate in voting based on various characteristics such as race, sex, age or inability to pay a poll tax. And the U.S. Supreme Court has ruled that states must confer voting rights on an equal basis under the 14th Amendment’s Equal Protection Clause. But nowhere does the U.S. Constitution affirmatively grant the right to vote. This silence is one reason why the U.S. Supreme Court has found it so hard to police partisan gerrymandering. Without explicit protection of voting rights within the U.S. Constitution, the court has struggled to find a proper test for judges to use to invalidate a map.” -From “What’s the best way to fix our broken democracy? Lean on state courts and constitutions” by Joshua Douglass law professor at the University of Kentucky College of Law.
In the absence of a federal right to vote, states have much greater leeway to contort the makeup of legislative districts for political gain and to choose their electorate, rather than the electorate choosing them. That’s not how it’s supposed to work in a democracy. We are seeing a rollback of voting rights from the highest levels in an attempt to shrink the electorate to their will. (One press account found that Pennsylvania Republicans who drew this map were worried about repercussions with their donors.)
Rather than worrying about their donors, politicians should instead prioritize the right to vote – and the federal government would be wise to follow suit.