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.