INTRODUCTION

These are troubling times and there’s an important question before each of us – and before the Black Caucus and the whole DNC.  What time is it?  Is it sunrise heading toward high noon or sunset moving toward midnight?

In the natural flow of the universe it’s a question beyond our control.  The sun rises and sets in a regular 24-hour cycle.

But when it comes to “time” in history, we may not be able to determine our future, but we do have the ability to make choices that will influence whether we are moving toward the bright sunshine of high noon or the darkness of midnight.  Our freedom may be limited, but our freedom is real.

So we have choices to make!  How are we going to use the freedom we have?  We can choose a path that has a greater chance of leading us toward high noon or we can choose a path that is almost certain to lead us toward midnight – but the choice is ours!

And here’s the real choice we must make.  We must move from freedom and equality under the law, de jure equality, to freedom and equality in fact, de facto equality!

I.          FROM SLAVERY TO FREEDOM

They tell us that America is a nation of immigrants and a nation that welcomes refugees.  Immigrants choose to leave their native country and come to America for a better opportunity.  Refugees come to America to escape tyranny, violence or oppression.  Africans were bought and brought to America, a strange land, against our will as slaves.  We didn’t choose to come here for a better opportunity; we didn’t come here to escape tyranny in our motherland; no, we were bought and sold in the marketplace of international trade.  It wasn’t a choice.

But we never accepted our condition.  There were always some of us who resisted our circumstance.  We developed a variety of sophisticated and unsophisticated ways of resistance in our attempt to be free as individual human beings and to gain our freedom as a people.  Sometimes we prayed and acted non-violently.  Sometimes we used violence and vengeance.  In the process we created freedom fighters and gained martyrs – Rev. Nat Turner in Virginia, Denmark Vesey in South Carolina, and White allies like John Brown at Harpers Ferry in 1859.  Later came W.E.B. DuBois, Booker T. Washington, Roy Wilkins, James Farmer, Whitney Young and Dr. Martin Luther King, Jr.

America elected its first Republican President in 1860, Abraham Lincoln – who was called “that Black President who represents that Black Republican Party” – but he had a mixed record on slavery and mixed feelings relative to African Americans, but as a political moderate he held steadfast to one central conviction – he would not permit slavery to expand into the new western territories.

After his election, eleven states chose to leave the Union of the United States and form a Confederate States of America in order to protect the institution of slavery, which led to a 4-year American Civil War to end slavery.

Slavery had been kept in place legally with the 10th Amendment – states’ rights and local control - and the primacy of private property over human and civil rights.

At the end of the war African Americans legally gained their freedom in the highest law of the land through ratification of the 13th Amendment in 1865.  Thus ended slavery.  We were in legal slavery for 246 years, from 1619-to-1865.

II.        FROM FREEDOM TO EQUALITY - UNDER THE LAW

The goal was always both freedom and equality, but freedom was the prerequisite for equality.  As Dr. King often said, “the greatest of America is the right to fight for the right.”

Once we gained our freedom from slavery – which had been protected by the 10th Amendment’s ideology of states’ rights - we then had to turn our sights on negating the primacy of private property rights over human and civil rights.

We accomplished that goal with the ratification of the 14th Amendment in 1868, which legally provided “equal protection under the law” and “due process.”

The 14th Amendment’s legal principle of “equal protection” also allowed Thurgood Marshall to argue his case before the Supreme Court and allowed Chief Justice Earl Warren to decide that “separate but equal” was “inherently unequal” in Brown in 1954.

Without the 14th Amendment Brown is not possible, and without Brown the 1964 Public Accommodations Act is not possible.  The latter tore down the cotton curtain of apartheid in the South and ended legal de jure segregation – no more black and white drinking fountains; we could eat at any public restaurant; travel on any public transportation; and “theoretically” attend desegregated public schools.  We were continuing to use our freedom to fight for legal social equality.

In 1870, we again used our freedom to fight for legal political equality with the addition of the 15th Amendment.  The 15th Amendment was the third of the Reconstruction Amendments added after the Civil War whose specific purpose was to bring the former slaves into the political mainstream of American society by law. But the 15th Amendment only outlawed discrimination in voting on the basis of race, color or previous condition of servitude.  It did not provide every American with an affirmative fundamental individual right to vote!  And that’s a problem we overlooked in the struggle for our right to vote.

The problem is, while the 15th Amendment outlawed racial discrimination in voting, we left the former Confederates and their 10th Amendment ideology of states’ rights and local control in charge of our right to vote.  As a result the Confederates wrote the enabling legislation.  That’s how we wound up with voting laws that required us to recite the Constitution, tell election officials how many bubbles were in a bar of soap, pay poll taxes, be locked out of white-only primaries, denied participation because grandfather clauses and more.  Confederate Democrats were the political tricksters.

It took us another 95 years of using our freedom to change the politics, which involved the beating of John Lewis on the Edmund Pettus Bridge, Dr. King’s march from Selma-to-Montgomery, Congress writing and LBJ signing the 1965 Voting Rights Act.  Other voting laws had been written, but none were truly effective.

The 1965 Voting Rights Act’s Section 4 formula, and Section 5 Preclearance provision, prevented discrimination in advance of voting.  The Shelby decision negated Section 4 and thus gutted the Voting Rights Act.  It left us with the car but took away the key, and the indication is that the 113th Congress will not “fix” the destruction of Shelby.  And, even if they do, it will be a compromised bill that will leave the 1965 Voting Rights Act much weaker than before Shelby. How do you design a bill that leaves Texas, Alabama, Georgia and Florida out of coverage?  Shelby represents moving toward midnight.

That leads me to our second mistake with respect to voting.  We not only left the Confederates and states’ righters in charge of our voting laws after we passed the 15th Amendment, we left the Dixiecrats and now the Republicrats – who changed uniforms but didn’t change their states rights ideology – in charge of our voting laws after we passed the 1965 Voting Rights Act.

You do have the right to vote, but it’s a Georgia, Alabama and Illinois right to vote, not a citizenship or American right to vote.  And since voting is a state right, with virtually no enforceable national standards, we have ended up with multiple and varied election systems in the 50 states (plus DC), 3,143 counties, 13,000 local voting jurisdictions that administer 186,000 precincts, all organized in what amounts to a “separate and unequal” voting system, controlled and managed by state and local election officials.  Prior to Shelby, 86% of Section 5 Preclearance objections involved local, not national or state, voting issues.  But if separate and unequal was unacceptable for education in 1954 it’s equally unacceptable for voting in 2014!

With the resignation of the Democratic state senator in Virginia - so his daughter could get a judgeship and he could get a job - the House and Senate in every former Confederate state is now in the hands of right-wing Republicans – every one of them – and 9-of-11 have right-wing Republican Governors!  With 57% of all African Americans now living in the South, only Virginia and Arkansas have moderate - not liberal or progressive - Democratic Governors.  And since it’s the states and local election boards that determine our voting laws and operational practices, we’re again getting obstacles put in the path of voters and partisan voter suppression – i.e., laws that allow Texas to permit gun registration IDs but not student IDs for voting; North Carolina passing laws that reduce early voting and move polling places off of campus to make it more difficult for students to vote; and Florida to eliminate voting on the Sunday before elections.  Southern politics are being nationalized and national politics are increasingly southern in operation.  Wisconsin has reduced the number of days for early voting.  And remember when Ohio’s African American Republican Secretary of State rejected voter registration forms that weren’t of a particular “thickness.”  Now Cincinnati has moved its downtown voting location to the outskirts of town.

All of this is only possible because we have a 10th Amendment states’ rights and local control national voting system.

But we have a choice, the choice of moving America forward toward high noon with vision and positive action or watching America continue to move backward toward midnight with silence and inaction.

III.       FROM FREEDOM TO EQUALITY - IN FACT

With constitutional amendments, legislation and judicial decisions, legally we have achieved a large degree of social and political freedom.  And those same constitutional amendments - and the many laws that followed built on their foundation - have essentially given us equal protection under the law! 

The challenge before us now is to use our freedom and our equality under the law to continue to move America further down the road to freedom and equality in fact!

With respect to equal protection under the law, we’ve moved from slavery in 1619, to ending slavery in 1865, to segregation in 1896, to equality in 1954, to social equality in 1964, to political equality in 1965. 

Now we must insist on the full meaning of “equal protection under the law“ by moving from freedom to equality - in fact – full equality of social, political and economic opportunity.  How do we do that?

During the 1983 southern crusade that eventually led to my 1984 presidential candidacy, I met with former Governor George Wallace.  One of the things he told me was this:  “keep your message down where the goats can get it.”  In other words, make your message simple and clear.  That’s what Democrats need in 2014, 2016 and beyond.  What do I mean?

Medicaid:  There are millions of poor Americans living without health insurance, but Republicans hate President Obama so much that they are willing to deny their constituents health insurance under the Medicaid part of the Affordable Care Act - and deny their state’s economy and hospitals billions of dollars.  In the 1960s Dixiecrat Governors stood in schoolhouse doors to deny their citizens an education.  Today Republicrat Governors are standing in hospital doors to deny their citizens health care and deny their hospitals and states money.

No state could exist without federal funds – but especially southern states where over 40% of every state budget depends on federal monies.  They welcome federal dollars for the military, for highways, airports, water ports, business development and more, but they reject federal funds for the poor.  Because of photosynthesis, our growth remains stunted.  Democrats must revive broken spirits and keep hope alive among the despised and dispossessed. Those who live in the shadows must rise and vote for their share of services.  An agenda for the people in the shadows must be our focus!

Minimum Wage:  The Dow Jones is soaring above 17,000, but wages remain stagnant and working class family income is declining.  If the $7.25 minimum wage had only kept pace with inflation the current minimum wage would be around $12/hour.  Workers should be allowed to work themselves out of poverty!

Students: In the name of “fiscal responsibility” we’re closing thousands of public schools, eliminating trades education within our schools and turning students away from community and 4-year colleges.  As a result, we’re building first class jails and leaving in place deteriorating second and third class schools.  We must fight for a public educational system of equal high quality for every student, including teaching the wide range of trades that are necessary to rebuild America.  We’ve gone from paying students to go to school with Pell Grants to putting students in debt in order to go to school.  The $1.2 trillion in student debt is greater than the nation’s credit card debt.  We need to increase the money for student scholarships with nearly 500,000 students in need of support.  Our future as a competitor in the world economy depends on it.

The Vote: As noted earlier, we have a states’ rights and local control voting system with few national standards in place.  Shelby undercut our most effective tool for non-discrimination in voting, the 1965 Voting Rights Act, and the result has been a Republican attack on the most fundamental right in a democracy – the right to vote.  What must we do?  What’s the Democrat’s response to this partisan Republican suppression campaign on our voters?

I support all legitimate efforts to “fix” the damage done by Shelby - if it can be fixed - but I’m also tired of this patchwork approach to voting rights.  Instead of hustling to protect our right to vote every few years, we need a more permanent solution, and I think that more permanent solution is to add a right to vote amendment to the U.S. Constitution.  Let me repeat.  We do have a right to vote, but it’s a state right, a Georgia right, not a constitutional or citizenship right.

Ironically, the Supreme Court in Heller ruled that the 2nd Amendment does contain a fundamental individual right to a gun, but the Constitution does not contain a similar fundamental individual right to vote.

In a democracy, the right to vote is a moral imperative, the most fundamental legal right and is protective of all other rights.  119 nations elect their public officials using some form of democratic elections with 108 of them having the right to vote in their constitution, but the United States is one of the 11 nations - including Azerbaijan, Chechnya, Indonesia, Iran, Iraq, Jordan, Libya, Pakistan, Singapore and the United Kingdom - that does not explicitly contain a citizen's right to vote in its constitution.

President Barack Obama already knows this.  Professor Barack Obama, as a teacher of constitutional law at the University of Chicago, opened all of his constitutional law classes by informing his students that the fundamental individual right to vote is not explicitly in the Constitution.  He said it always surprised his students.  His involvement and use of the bully pulpit to educate the American people on this issue would dramatically change the political climate around voting.

The right to vote may be in the Constitution implicitly, but it’s not there explicitly.  Wouldn’t voters and voting rights lawyers be in a stronger position if it were there explicitly?  It would seem illogical and ridiculous to argue that it’s better to have the right to vote in the Constitution implicitly rather than to have it there explicitly.  And in light of Shelby and all the partisan voter suppression efforts going on in the states controlled by Republican governors and legislatures - to borrow a phrase from former half-Governor Sarah Palin - couldn’t one ask, “How’s that implicit right to vote thing working out for ya?”

The Affordable Care Act is violating of the National Voter Registration Act – the Motor Voter Law.  Motor Voter requires all offices in a state that provides public assistance to be designated voter registration agencies and provide the specific opportunity to register and vote.  This applies to all Exchanges created by the Affordable Care Act – but voter registration is not occurring through the ACA!

The vote is the maypole around which all other social, political and economic issues revolve.  Voting rights, voter registration, voter turnout and voter outcomes affect every area of our lives.

It you don’t believe me, look at Ferguson, Missouri, a 70% African American city, that has a white mayor, 5-out-of-6 of its city council members are White, all 7 of their school board members are White, they have 53 policemen, 3 Black, and Ferguson’s firemen reflect the same demographics.  Why?  Partly because they had a 12% turnout in their last election, including only a 6% turnout among African Americans.

Montgomery, Alabama is 58% Black with a right-wing White Republican as mayor.  In Chicago, we have the way if we have the will.  The current mayor won with 330,000 votes, but there are 668,000 registered Black voters alone!  When we vote - alongside our allies, with a focus on a morally sound agenda - we can determine the White House, the Senate, the House, the Governor, state legislatures and local elections.  And when we don’t, our voting rod turns into a snake and bits us.

To the degree that we vote and exercise our political power we will gain respect, justice and programs that reflect our agenda and meet our needs.

CLOSING

Are we at dawn moving toward the sunlight of noon or at sunset moving toward the darkness of midnight?

The choice is ours.

If we vote in record numbers, as we did in 2008 and 2012, we can elect a President Barack Obama – twice.  In 2014, if we come out and vote in record numbers, we can maintain control and gain seats in the Senate - and win control of the House.

If we vote, like we did in 1986 after the 1984 Jackson campaign, where we gained 8 Senate seats, recaptured control of the Senate and won unexpected victories like Harry Reid in Nevada, Alan Cranston in California, Wyche Fowler in Georgia, Bob Graham in Florida, John Breaux in Louisiana and Richard Shelby in Alabama – who showed his gratitude by later changing uniforms, but not his Dixiecrat ideology.

Democrats need to keep hope alive by fighting for Medicaid in every state, fighting to raise the minimum wage for workers, fighting to make a college education affordable for all students who are qualified and wish to attend, and fighting to add a right to vote amendment to the U.S. Constitution in the face of partisan Republican attempts to suppress our voters.

If we are faithful over these few things, God will bless us and make us responsible for many others.

The spirit of many of our people is broken, so we must work to keep their hope alive!  Too many of us are depressed and cynical, so we must revive minds and keep hope alive!  Our task is daunting, but if we have a mind to work we can keep hope alive!

Keep hope alive!  Keep hope alive!  Keep hope alive!

Dear Mr. Vice President;

Congratulations on your recent speech in Detroit to the Netroots Nation where you forcefully and effectively argued for equality and equal protection under the law for women and the LGBT community.  I share your values and commitment.  I write to you today in regard to equality and equal protection under the law with respect to voting and voting rights! 

The Senate has tried to move forward on a legislative “fix” after the damage done by Shelby in declaring the preclearance triggering formula of Section 4 in the 1965 Voting Rights Act unconstitutional.  The House has not moved forward on similar legislation and, from my perspective, it appears unlikely to do so in the 113th Congress.  There are small numbers of co-sponsors on this legislation in both Houses.  Even if Congress passes a bill, inevitably it will be a compromise and, therefore, the 1965 Voting Rights Act will clearly be weaker and less effective than before Shelby.  I would rather have a compromised and weak fix than no fix, but legally I know what I would have.

This conservative activist Supreme Court has also set us back in other critical areas of voting.  Citizens United and McCutcheon have also done tremendous damage.  I noticed that there are fully 43 Democratic Senate co-sponsors of S.J. Res. 19, a constitutional amendment to correct the damage done by these two decisions.  The parallel legislation in the House (H.J. Res. 20) has a disappointing 36 co-sponsors.  While I fully support this legislation as necessary and positive, it only directly affects politicians, political parties and those who contribute large sums of money to campaigns – which is not the average voter.  The voters will only be indirectly and eventually affected by this amendment because of who could get elected, what their agenda is likely to be, and the policies and programs they would surely pass into law or undo.  It’s an important amendment, which I support, but one that doesn’t have the broadest possible political appeal.

On the other hand, there are only 21 Democratic House co-sponsors of H.J. Res. 44 (and not even a bill in the Senate), for an amendment that would add an explicit fundamental individual right to vote to the Constitution that would directly affect every American voter and have a much broader political appeal, especially in light of Republican efforts at voter obstruction and suppression.

Contrasting the two amendments, it does not look good that members of Congress, the Democratic Party generally and the DNC specifically seem more concerned and responsive to an amendment that affects their money and their campaigns than they are for legislation that affects democracy and individual American voters.

Because most people that we know vote – or could vote – in virtually every election, and because they have been brought up to believe in voting in our representative democracy, they think or assume that the fundamental individual right to vote is already in the U.S. Constitution - but it’s not.  In that regard, please consider the following four arguments:

(1) The American people do have a right to vote, but it’s a state right, not a citizenship or American right.  We have a “states’ rights” and “local control” voting system comprised of 50 states (plus DC), 3,143 counties and 13,000 election jurisdictions that administer 186,000 precincts - all “separate and unequal.”  But if separate and unequal was unacceptable as a legal principle for education in 1954, it’s an equally unacceptable legal principle for voting in 2014.  H.J. Res. 44 would directly affect the average voter and the average election.  Eight-six percent (86%) of the preclearance cases sustained under Section 5 of the 1965 Voting Rights Act involved local not state or federal elections.

(2) The right to vote may be in the Constitution implicitly, but it’s not there explicitly.   Wouldn’t voters and voting rights lawyers be in a stronger position if it were there explicitly?  It would seem illogical and ridiculous to argue that it’s better to have the right to vote in the Constitution implicitly rather than to have it there explicitly.  And in light of Shelby and all the partisan voter suppression efforts going on in the states controlled by Republican governors and legislatures, to borrow a phrase from former half-Governor Sarah Palin, couldn’t one ask, “How’s that implicit right to vote thing working out for ya?”

(3) The ease or difficulty of adding constitutional amendments depends on the political climate surrounding them.  Contrast the time required for the 27th and 26th Amendments.  The only thing needed here is correct information and a simple civics lesson.  Let me be clear, fighting for a voting rights amendment would be controversial, but any Democrat who cannot defend democracy and strongly advocate for a right to vote amendment shouldn’t be in public office.  Unlike the struggle over the Equal Rights Amendment for women, adding a voting rights amendment does not require any deep psychological adjustment by the American people.  In fact, it would fulfill and make whole what the American people think they already have.

 (4) Social Security, which is a universal program, is considered a third rail of American politics because it has a vast political base of support.  Democrats generally support more progressive legislation, so we need a broad base of political support in order to enact progressive legislation and sustain it.  Passing a non-partisan right to vote amendment would, nevertheless, add a minimum of 50 million new voters to the voter rolls, the vast majority of whom would support voting to pass and sustain more progressive legislation based on the needs of those 50+ million new voters.

I believe most Americans – even most members of Congress – think we already have the right to vote in the Constitution.  But if the American people were educated with the truth – i.e., we have a state right to vote but not an American right to vote - I believe they would demand that a citizenship right to vote be added to the Constitution.  Voting and democracy in America is like the flag, motherhood and apple pie with vanilla ice cream on it.  It’s very popular!

Therefore, in my judgment, Democrats should take a serious and careful look at fighting for a right to vote constitutional amendment.  I obviously believe programs and policies are important, but people power is even more important, and the vote is how the American people exercise their power.  Democrats win with more voters!  Every Democrat knows the difference between 2008 and 2012, and 2010 - and worries about 2014.

In 2012 African Americans felt Republicans were trying to suppress their vote and they responded by standing in line for 6, 7 and 8 hours to cast their ballot and they voted in even greater numbers than in 2008 – even though the long lines did discourage some voters who left before casting their ballot.  Since then Republicans have continued to put obstacles in the way of voters and are passing more voter suppression laws that negatively affect minorities, young people, seniors, workers, poor people and the disabled – i.e., mostly our voters. Don’t we have a moral and a political obligation to defend and protect our voters?  Relying on the courts to strike down these laws is difficult, after-the-fact, time consuming, expensive and, even if we win, it is sustaining but not advancing democracy or adding new voters.

North Carolina passed the most regressive voting laws since before the 1965 Voting Rights Act.  I believe if Sen. Kay Hagan were strongly and clearly advocating for a right to vote amendment that her base voters would respond by voting in record numbers for her in 2014.  The reality is, there are no off-year elections!  I also believe they would vote for Democrats generally in greater numbers in 2014 and 2016 nationally if they saw us aggressively fighting to defend their vote and fighting to put their right to vote in the Constitution.

We can quickly change the political climate around this amendment by contrasting the strong and aggressive Republican support for the constitutional right to a gun with the absence of a constitutional right to vote.  This is what I don’t understand.  How is it that Republicans can openly and strongly defend the NRA and the Second Amendment and aggressively advocate for the right to a gun – indeed pass a law in Georgia that they want guns everywhere even as guns are killing 30,000 Americans every year through homicide, fratricide and suicide - but Democrats can’t defend democracy and advocate for the right to vote?  How lacking in conviction do Democrats have to be not to be able to fight for democracy and the right to vote?  If the Republican strategy is partisan voter disenfranchisement and suppression, what’s the Democratic counter-strategy?  I’m suggesting we fight for non-partisan voter enfranchisement, voter expansion and inclusion through a right to vote amendment!

President Barack Obama already knows this.  Professor Barack Obama, as a teacher of constitutional law at the University of Chicago, opened all of his constitutional law classes by informing his students that the fundamental individual right to vote is not explicitly in the Constitution.  He said it always surprised his students.  His involvement and use of the bully pulpit to educate on this issue would dramatically change the political climate around this issue.

I repeat.  Republicans are conducting a partisan voter suppression campaign against Democratic voters.  Republican use of the filibuster in the Senate, and their “do nothing” majority in the House, are deliberately thwarting the democratic will of the majority of the American people as expressed in two national elections – including Democrats receiving a million more cumulative votes than Republicans in the House in 2012.  It is just another indication that many Republicans don’t really believe in democracy and they’re willing to pervert the law to protect their power.  In my judgment Democrats could and should respond and fight them with a non-partisan “right to vote amendment” campaign for all Americans.  How can any senator or representative vote against democracy and the right to vote without Democrats making them pay a political price that has political consequences favorable to Democrats?

So I’m urging that just as you spoke out strongly on behalf of equality and equal protection under the law for women and the LGBT community that you also speak out with equal clarity, force and commitment with respect to equality and equal protection under the law for voting, voting rights and on behalf of all American voters.

I hope you will consider politically supporting a right to vote amendment to the U.S. Constitution by personally endorsing it and by helping to persuade President Barack Obama, your Democratic colleagues in the Senate and House to do the same.  In this regard, I’m ready to help in any way you think would be beneficial.  Who knows, maybe there’s even a Republican somewhere who might even support democracy and the right to vote.

Thank you in advance for your serious and thoughtful consideration of this idea and proposal.

Sincerely,

Again this week as I remember the 49th anniversary of Selma, Alabama’s “Bloody Sunday,” I want to continue my focus on the issue of voting.  It’s worth more discussion.

After 246 years of slavery, Americans fought a brutal Civil War — the bloodiest in our history — to end slavery and preserve the Union.  Three amendments were added to the Constitution: the 13th abolished slavery; the 14th guaranteed equal protection under the laws and due process, and the 15th outlawed discrimination in voting on the basis of race or prior servitude.

But although they surrendered on the battlefield, the Confederates did not give up. They waged a fierce rear-guard battle over state sovereignty, also known as “states’ rights.” They sabotaged the post-war reconstruction, unleashing a wave of terror across the South. Several states began to enforce segregation against the newly freed slaves. And in the shameful decision of Plessey v. Ferguson (1896), the Supreme Court gave approval to state Jim Crow laws, endorsing the oxymoron of “separate but equal.”

It took another half century of struggle to re-establish the reach of the civil rights amendments. In 1965, the Voting Rights Act was passed to enforce the 15th Amendment’s guarantee against discrimination in voting. States, counties and municipalities in the South continued to invent new obstacles to voting, but for areas with a history of discrimination — largely Southern states — the Voting Rights Act required pre-clearance of any changes in voting laws. This enabled the Justice Department to prevent significant voter discrimination and voter suppression.

But having lost the military battle in 1865 and the legal battle in 1965, the Confederates still did not give up. They continued to argue for states’ rights. And since the 15th Amendment only outlaws denying a citizen the right to vote based on race or color, voting procedures that discriminate – but not explicitly based on race – continue to remain under the control of states and localities.

In 2013, with a conservative majority in control, the Supreme Court revived states-rights arguments in Shelby v. Holder, acting shamefully to weaken federal authority and gutting the vital preclearance portions of the Voting Rights Act.

Once more as federal authority was weakened, the Confederates churned out new obstacles to voting — strict photo ID requirements, elimination of same-day voter registration, reducing early voting periods, eliminating early registration for young people, outlawing use of student IDs and more.

Within two hours of the Shelby decision, Texas Attorney General Greg Abbott — now running for governor — announced that the Texas’ voter identification law, previously rejected by the U.S. Justice Department and a federal court (which said it was the most discriminatory measure of its kind in the country), would immediately be implemented. North Carolina followed shortly. Now some 34 states have erected new obstacles to voting.

The absence of a constitutional guarantee of the right to vote remains the source of continuing injustice. Professor Obama, when a teacher of constitutional law, surprised his students by opening all of his classes with the fact that the fundamental individual right to vote is not in the Constitution.  He wasn’t just teaching history; he was introducing his students to an ongoing human rights struggle.

If the fundamental individual right to vote had been constitutionally guaranteed in 2000, Al Gore would have been elected president over George W. Bush because all the individual votes of Floridians would have had to be counted – and, as we know now, Gore got the most popular votes. The individual right of Florida’s citizens would have taken precedence over Florida’s state law.

If there were a constitutionally guaranteed right to vote, we would not have different laws for 50 different states and 13,000 election jurisdictions. We’d have a federal law that would govern voting rights for all.

Congressmen Mark Pocan, D-Wis., and Keith Ellison, D-Minn., have introduced House Joint Resolution 44 to amend the Constitution to guarantee the right to vote. It would provide every American with a fundamental individual right to vote and give Congress the clear authority to create a unified national voting system with minimum standards.

The right to vote is not a partisan question. It should not be left to changing legislatures, partisan politics and insensitive or biased ideological Supreme Court majorities. It should be clearly guaranteed in the Constitution.

Monday morning I woke up — not with Georgia — but with Selma on my mind. Selma bears witness to the bloody and murderous struggle to end discrimination in voting on the basis of race. The demonstrations there led directly to President Lyndon Baines Johnson signing the 1965 Voting Rights Act.

The 1965 Voting Rights Act was historic, designed to redress the unique history of discrimination against African Americans. But it was limited. It did not give each and every American citizen the explicit, constitutionally guaranteed federal right to vote.

The 1965 Voting Rights Act has been effective and efficient. Sections 4 and 5 were its heart and soul because they provided for a prior review that prevented racial discrimination in voting. In the recent Shelby decision, a conservative majority of the Supreme Court cut the heart (Section 4) out of the law and left its soul (Section 5) as exposed as a cadaver on a funeral director’s table. Shelby said you can keep the car but you can’t have the keys. The car looks great, but it’s not going anywhere. Now we must all join together in an effort to fix the damage done by Shelby, and revive the heart of the Voting Rights Act.

But we should also take a step back and see what we’re really facing. A text out of context is a pretext. What’s the context of America’s voting rights? The context is that we have a “states’ rights” voting system — 50 states (plus D.C.), 3,143 counties, 13,000 election jurisdictions that administer 186,000 precincts, all in “separate and unequal” local voting jurisdictions. But if the legal principle of “separate and unequal” was unacceptable for education in 1954, it’s also unacceptable for voting in 2014, since voting is the foundation of our democracy.

Most Americans assume that they have a “right” to vote — and they’re partially correct. Except for ex-felon laws in certain states, most Americans do have a state right to vote, but they don’t have a citizenship right to vote. In Alabama, they have an Alabama right to vote, but not an American right to vote. It’s because of this “states’ rights” voting system that, since 2010, 34 states have been able to pass new voting laws that are mostly designed to suppress or make it more difficult for certain Americans to vote — specifically minorities, young people, workers, poor people, women and the disabled. The intent of these efforts, mostly driven by Republican governors and Republican-controlled legislatures, is to disenfranchise Democrats (big “D”), but the effect undermines all democrats (small “d”) and our democracy.

Congressional efforts to “fix” the damage done by Shelby to the Voting Rights Act are essential. But the remedy will inevitably leave the Voting Rights Act in a weaker state than it was before Shelby. We should not have to protect the “right to vote” piecemeal — state-by-state, county-by-county, voting district-by-voting district, year-after-year.

So I argue that even as we mobilize to end the damage done to the Voting Rights Act, we should be fighting for a constitutional amendment to guarantee the right to vote to all.

Nowhere in the U.S. Constitution is there an explicit guarantee of the right to vote. Prior to becoming president of the United States, Professor Barack Obama, as a teacher of constitutional law at the University of Chicago, began each of his constitutional law classes stunning his students with the surprising fact that a “citizenship or individual right to vote” is not in the Constitution.

The Supreme Court has ruled that the Second Amendment does guarantee the individual right to a gun. So we have the bizarre situation that in one of the world’s leading democracies, citizens have a guaranteed right to a gun, but not the right to vote.

Reps. Mark Pocan, D-Wis., and Keith Ellison, D-Minn., have introduced in Congress a constitutional amendment that would guarantee the right to vote. Its language is sensible, plain and clear:

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.

Passing a constitutional amendment isn’t easy. It must be supported for ratification by two-thirds of the members of both the House and the Senate, and then ratified by three-fourths of the state legislatures. No amendment can pass without a broad consensus. But guaranteeing the right to vote isn’t partisan or ideological or a special interest agenda. It is fundamental to all Americans. It is the foundation of our democracy. And it is long past due.

Prior to becoming President of the United States, Professor Barack Obama, as a teacher of constitutional law at the University of Chicago, began all of his constitutional law classes with the surprising fact that the fundamental individual “right to vote” is not in the U.S. Constitution?  Why did he do that?  What was he trying to say?  What was he telling us?  He was telling us about our history.

We were in slavery from 1619-to-1865 – 246 years.

On April 12, 1861 the issue of slavery finally came to a head and for the next 4 years President Abraham Lincoln led the nation in fighting a violent and un-Civil War to end slavery that cost 600,000 Americans their lives – black as well as white - and the Union, on April 12, 1865, finally won the fighting war.

But, to this day, the Confederates have continued the ideological war – the war over state sovereignty, also known as “states rights.”  They argued that the war wasn’t about slavery, but over states’ rights.  They didn’t think the Big Federal Government should be telling the states what they could do with their slaves and how they should treat their slaves.  It was none of the Federal Government’s business.  Slavery was “state” business!

Today, this same Confederate ideology doesn’t think the Big Federal Government should be telling states what to do with regard to education, health care, women’s health, voting and more.

After the American Civil War, three amendments were added to the Constitution – known as the Reconstruction Amendments.  The 13th Amendment, ratified in 1865, ended slavery.  The 14th Amendment, ratified in 1868, established the legal principles of equal protection under the law and due process.  The 15th Amendment, ratified in 1870, outlawed discrimination in voting of the basis of race, color or previous condition of servitude.

The Reconstruction Amendments were intended to provide freedom and equality for the former slaves.  The Slaughter-House Cases (1873) began to undercut the citizenship civil rights of all Americans guaranteed in the 14th Amendment with “states’ rights,” and in 1876 some states began to pass “segregation” or Jim Crow state laws that were also designed to undercut the rights guaranteed in the Reconstruction Amendments – including the 15th Amendment’s voting rights.  Finally, in 1896, in Plessy v. Ferguson, a conservative Supreme Court gave federal approval to state Jim Crow laws and established the legal principal of “separate but equal.”

It took another 58 years, until Brown (1954), to overturn Plessy’s legal principle of “separate but equal” and re-establish the originally intended Federal Legal Principle of equal protection under the law for all Americans.

Remember, the 15th Amendment only outlawed discrimination in voting on the basis of “race, color or previous condition of servitude.” 

Professor Barack Obama was trying to tell us, in legal terms, that the 15th Amendment was not a fundamental individual right to vote - it only outlawed discrimination in voting on the basis of race.  The 15th Amendment allowed states to think up other ways to discriminate in voting - and they did.  Using the “states’ rights” principle, states came up with all sorts of ways to keep African Americans from voting that didn’t explicitly involve race – e.g., grandfather clauses, literacy tests and poll taxes.  And they didn’t shy away from using violence!  In other words, they left the right to vote in the belly of the beast.

Dr. Martin Luther King, Jr. and the Civil Rights Movement used the 1954 Brown’s legal principle to fulfill the 14th Amendment’s original intent - to provide equal Federal protection under the law. The Civil Rights Movement marched, bled and died to fulfill the 14th Amendment’s promise by passing the 1964 Civil Rights Act, a law that desegregated public accommodations – e.g., public transportation, public swimming pools, restaurants, restrooms and more.

Selma was about gaining the right to vote for African Americans.  It was about fulfilling the 15th Amendment – gaining Federal protection of the right to vote for African Americans by outlawing discrimination in voting on the basis of race.  The Voting Rights Act was the enabling legislation 95 years after the 15th Amendment was ratified.  It was achieved as a result of John Lewis and others being beaten and trampled as they crossed the Edmund Pettus Bridge; Dr. King leading a Selma-to-Montgomery march to the state capitol on March 25; and President Lyndon Baines Johnson signing the Voting Rights Act into law on August 6, 1965.

Most parts of the 1965 Voting Rights Act are permanent, but certain sections of the law are temporary and periodically needed to be renewed - in 1970, 1975, 1982 and in 2006 for another 25 years.  The temporary parts, including Section 4, which was the formula that triggered Section 5 preclearance in (mostly) the former Confederate states and a few other counties and voting jurisdictions – 16 states, or parts of states, in total.  Preclearance means that any changes in the covered area’s voting laws must be pre-cleared by the U.S. Justice Department or the Federal District Court in the District of Columbia to make sure that the voting changes will not negatively effect the voting rights of racial minorities or people of color.

So we won the military battle in 1865.  We won the legal battles in 1954, 1964 and 1965.  But we haven’t defeated the Confederates and their ideological battle of advocating and defending states’ rights.

After the 1965 Voting Rights Act became Federal law - in fulfillment of the 15th Amendment’s outlawing of discrimination in voting on the basis of race - white supremacists and states’ righters still had more discriminatory arrows in their ideological quivers. 

Now they came up with new methods of discrimination – annexation, at-large districts, register to vote twice (in the county and in the city) in order to vote once.  Voting rights discrimination cases were filed and mostly won in Federal courts – until the Shelby (2013) decision.

The Robert’s Supreme Court is a conservative “states’ rights”- oriented court.  Both of the recent Court decisions – the one overturning the Defense of Marriage Act - (DOMA) - involving gays and lesbians and the Shelby case involving voting rights - were states’ rights decisions and interpretations of the Constitution by the Robert’s Court.

Again, Professor Barack Obama was reminding us that the right to vote is not a fundamental individual right in the Constitution – like the 1st Amendment’s freedom of speech, freedom of religion, and freedom to peaceably assemble and protest – because voting is a state right.

White supremacists had still more arrows in their states’ rights quivers.  Within two hours of the Shelby decision, Texas Attorney General Greg Abbot – now running for Governor – announced that the Texas’ voter identification law, previously rejected by the U.S. Justice Department and a federal court (which said it was the most discriminatory measure of its kind in the country), would “immediately” be implemented.  And he joyously said he didn’t have to check with the Federal government before Texas implemented it.

Also, shortly after the Shelby decision, North Carolina passed the most regressive state voter law since before 1965, which included new obstacles to voting - a strict photo ID requirement, elimination of same-day voter registration, cutting the early voting period by seven days, eliminating early registration for young people, throwing out provisional ballots cast at the wrong polling station among other provisions.

Professor Barack Obama was telling us that the 1965 Voting Rights Act did not give each and every American citizen the explicit, fundamental, affirmative, individual, citizenship or federal right to vote!  It was a law designed to address the unique history of discrimination against African Americans, other people of color and eventually language minorities.  Prior to the 1965 law we had the difficult, expensive and lengthy task of proving in court intentional racial discrimination in voting, and as soon as we defeated one form of discrimination, white supremacists and states righters thought up new forms, and we had to start all over again.  Unless corrected by a congressional legislative “fix” of the Section 4 formula, the Shelby decision has essentially put us in the same position again.

That’s why I’m advocating that we fight to add a right to vote amendment to the U.S. Constitution.  It’s confusing because many Americans vote in virtually every election.  So they think everyone has a “right” to vote – and they’re partially right.  Except for ex-felon laws in certain states, most Americans do have a state right to vote, but they don’t have a citizenship right to vote.  In Illinois you have an Illinois right to vote, but not an American right to vote.

Also, because we have a “states’ rights” voting system, since 2010, 34 states – not just Texas and North Carolina – have passed new voting laws that are mostly designed to suppress or make it more difficult for certain Americans to vote - specifically minorities, young people, seniors, workers, women, the poor and the disabled.  The intent of these mostly Republican Governors and Republican-controlled legislatures is to disenfranchise Democrats (big “D”), but it also undermines all democrats (small “d”) and our democracy.

Because of the way lines were drawn – another states’ rights trick - African Americans, Hispanic Americans, Asian Americans and Native Americans couldn’t really elect candidates of their choice until 1982 when a new provision was added to the 1965 Voting Rights Act and a Supreme Court decision, Thornburg v. Gingles (1986), legally validated Majority-Minority districts.  So when the census was taken in 1990 and the redistricting lines were redrawn in 1991, it allowed more African Americans (as well as Hispanics and Asians) to be elected to the U.S. House of Representatives.  In 1992 the following African Americans were elected as U.S. Representatives and began serving on January 3, 1993:

• Sanford Bishop (GA)
• Corrine Brown (FL)
• Jim Clyburn (SC)
• Cleo Fields (LA)
• Alcee Hastings (FL)
• Earl Hilliard (AL)
• Eddie Bernice Johnson (TX)
• Cynthia McKinney GA)
• Carrie Meek (FL)
• Mel Reynolds (IL)
• Bobby Rush (IL)
• Bobby Scott (VA)
• Bennie Thompson (MS)
• Walter Tucker (CA)
• Mel Watt (NC)
• Albert Wynn (MD)
  

But because voting is a “state right” and the Supreme Court is a “states’ rights”-oriented Court, in a series of voting rights cases beginning in the 1990s, the Court has again begun to turn back the clock on voting rights - e.g., Shaw v Reno (1993).

Let’s take a closer look at this right to vote:

• Women only got the right to vote without discrimination in 1920 with the 19th Amendment.
• 18-year-olds got the right to vote in 1971 with the 26th Amendment.
• Woman didn’t get the right to serve on juries until 1975 (Taylor v. Louisiana).
• Symm v. U.S. (1979) was a case that involved the historically African American Prairie View A & M University in Texas, which won the right of students to register and vote from their college residence.
• Only registered votes can serve on juries - unregistered voters can’t serve on juries.
• Ex-felons can’t serve on juries.
• And there are 5.85 million ex-felons who have paid their debt to society, but cannot register and vote.
• If the fundamental individual right to vote had been in the Constitution in 2000, Al Gore would have been elected President over George W. Bush because all the individual votes of Floridians would have had to be counted – Floridians individual votes would have taken precedence over Florida’s state law.  But because voting is a “state right,” Florida’s law took precedence over the individual voter because the Florida law said all of the votes had to be counted by midnight, December 12.  And you may remember that the Supreme Court stopped the vote count on the Friday before the Tuesday, December 12th midnight deadline.

When it comes to voting – and many other issues – we’re not living in a post-racial society.  Attorney Jim Crow, Esq., Governor Jim Crow, Jr. and state representative and state senator Jim Crow, Jr.’s wives have just thought up more new ways to disenfranchise us.

They haven’t changed!  We beat them with a new voting coalition!  The Confederate ideology hasn’t changed.  It’s just changed parties.  When the 1964 Civil Rights Act was signed into law on July 2, 1964, South Carolina Senator Strom Thurmond switched to the Republican Party in September 1964.  My 1984 campaign increased registered voters in Alabama and helped elect Democratic Senator Richard Shelby in 1986, but on November 9, 1994, he switched to the Republican Party one day after Republicans won control of both the House and the Senate.  Trent Lott, Newt Gingrich and most of the older current southern Republicans were all raised as Dixiecrat Democrats.  They just changed the color of their uniform from blue to red, but they haven’t fundamentally changed with respect to their ideology of states’ rights.

Congressmen Mark Pocan (WI) and Keith Ellison (MN) have introduced a bill to add a right to vote amendment to the U.S. Constitution.  It’s called House Joint Resolution 44 (H.J. Res. 44).  It would do two things:

(1) It would provide every American with a fundamental individual right to vote; and

(2) It would give Congress the authority to create a unified national voting system with minimum standards.

A national unified voting system would replace our current “states’ rights” voting system that is comprised of 50 states (plus DC), 3,143 counties, 13,000 election jurisdictions that administer 186,000 precincts, that are all in “separate and unequal” local voting jurisdictions.  But if the legal principle of "separate and unequal" was unacceptable for education in 1954, it’s also unacceptable for voting in 2014, since voting is the foundation of our democracy.

Why do we need a fundamental individual right to vote added to the Constitution?

• Because adding a right to vote to the Constitution is morally right.
• Because adding a right to vote to the Constitution is rationally sound.
  
• Because adding a right to vote to the Constitution makes legal sense and strengthens the rule of law in our democracy.
• Because adding a right to vote to the Constitution is the patriotic thing to do.
• Because voting rights, voter registration, voter turnout and voter outcomes affect every dimension of our lives and everything we do in life, from womb to tomb.
• Because “the vote” is a human right and should not be left to the 50 states to administer with many different standards.
• Because the right to vote is not a partisan political issue to be manipulated for one party’s advantage and the other party’s disadvantage.
• Because the right to vote is protective of all other rights.
• Because we need to put the right to vote on the same plain as the 2nd Amendment’s right to a gun.  It makes no sense that in one of the worlds leading democracies that we have the fundamental individual right to a gun but not the fundamental individual right to vote.
  

Chuck Todd and other reporters who have covered this President have correctly made the point and observation that President Barack Obama has tried to never directly deal with or talk about race as President of the United States.  Instead he tries to pursue policies - and he talks about his efforts as President - as things that will help all people, policies that are good for all Americans, things that will benefit everyone, including African Americans.  “I was not elected President to help African Americans, but to help all Americans.”

The only exceptions may be the Philadelphia speech when he was a candidate and was forced to talk about race because of Rev. Jeremiah Wright, the “beer summit” following the “dumb” arrest of Harvard Professor Henry Louis Gates and following the Trayvon Martin shooting and verdict.

The Voting Rights Amendment is an issue that would allow President Obama to do both at the same time:  i.e., “talk directly” about race without ever having to mention race, because it is primarily the rising minority (racial) vote that the current challenges (voter ID, etc.) are trying to suppress; but it would also allow him “not to talk about race directly” because adding a Voting Rights Amendment to the Constitution is about “democracy for all.”  In addition, a Voting Rights Amendment is non-partisan, non-ideological, non-programmatic and non-special interest.

But it is like the story or lesson about the difference between “giving someone a fish” and “giving them a fishing pole and teaching them to fish.”   If you give them a fish, you have fed them for a day.  If you give them a fishing pole and teach them how to fish they will eat for the rest of their lives.

In our democracy adding a Voting Rights Amendment to the Constitution IS the fishing pole for every African American, Hispanic American, Asian American, Native American and White American.  The Voting Rights Amendment IS the individual fishing pole for every American and the collective fishing net for all Americans.