Protecting the right to vote is a long, ongoing fight

Franklin Delano Roosevelt said, “Nobody will ever deprive the American people of the right to vote except the American people themselves, and the only way they could do this is by not voting.” All due deference to one of our greatest presidents, but Americans are engaged in a battle that might make that not strictly true.

The right to vote is fundamental to the existence of any democracy, however, nowhere does the U.S. Constitution actually guarantee that all Americans shall have the right to vote. Rather, our voting rights come from constitutional inference, Supreme Court precedent, and a patchwork of state laws. This is true of many “fundamental” constitutional rights that we enjoy, such as the right to privacy, abortion, marriage, procreation, or even education.

A few post-Civil War Reconstruction period constitutional amendments ensure that voting rights can’t be denied or abridged on account of race, color, or previous condition of servitude (15th); sex (19th); failure to pay a poll tax or any other tax (24th); or age if 18 years of age or older (26th). However, these constitutional provisions and all of the Supreme Court precedents are largely dependent on the state laws granting us the right to vote in the first place.

Franklin Delano Roosevelt said, “Nobody will ever deprive the American people of the right to vote except the American people themselves, and the only way they could do this is by not voting.” All due deference to one of our greatest presidents, but Americans are engaged in a battle that might make that not strictly true. Since Ari Berman called attention to the GOP’s “War on Voting,” we have seen moves and counter-moves on both sides of the political aisle. Not even the Supreme Court is immune to this partisan gamesmanship.

Just this month, however, two important things happened that may set the stage for either a quick end to this “war” or the beginning of a protracted battle that will last for years.

The Voting Rights Act of 1965

The Voting Rights Act is probably the most important piece of federal legislation on voting rights. It is the main line of defense between the beleaguered voter and unchecked state legislatures.

On June 25, 2013, the U.S. Supreme Court issued its opinion in Shelby County v. Holder. Much ink has been spilled in the analysis of that decision, so I will not rehash it. Suffice it to say that the Court declared unconstitutional Section 4 of the VRA, which was the formula by which some states or counties were subjected to a preclearance requirement (in Section 5) for any changes to their voting methods or standards.

Justice Roberts, in his opinion, said that because Congress had not updated that formula when it reauthorized the VRA in 2009, the Court had no choice but to declare it unconstitutional. Because, of course, things that are old can’t withstand constitutional scrutiny, even if Congress decides they are still working. I suspect we will soon be revisiting the anti-child labor provisions in the Fair Labor Standards Act of 1938, or perhaps the Constitution itself, since that went into effect in 1789 and hasn’t been amended in 12 years.

On Jan. 16, Reps. Jim Sensenbrenner (R-WI), John Conyers (D-MI), and Patrick Leahy (D-VT) introduced bipartisan legislation called the Voting Rights Amendment Act of 2014. It is meant, among other things, to provide the Supreme Court with the updated coverage formula it has decided is necessary for the constitutionality of Section 4 of the VRA. The formula essentially says that if any state, or county, violates federal election laws more than five times in a calendar year, it is subject to Section 5 preclearance.

Seems simple — but wait, there’s more. The legislation also amends Section 3 of the VRA, which is what provides for what would constitute a violation of federal election law. It reads:

“Section 3(c) of the [VRA] is amended by…and inserting…’violations of this Act (other than a violation of section 2(a) which is based on the imposition of a requirement that an individual provide a photo identification as a condition of receiving a ballot for voting in an election for Federal, State, or local office)…'”

This bit of tomfoolery brings us to the second important thing that happened this week.

Voter ID

In the media, the GOP stands accused of trying its best to limit the right to vote through backdoor tactics, in the face of a dwindling majority of white, male voters, to assure allegiance to its agenda. The evidence is replete: last-minute, pre-election voter purges in Virginia, Florida, and Ohio; difficult to justify decreased early voting in states like Ohio, West Virginia, Florida, Georgia, and Tennessee; and most insidious, the Voter ID laws.

These voter ID laws currently exist in 19 states across the country, though in eight of those states, includeing Pennsylvania, the laws are not yet active. The main reason given for creating voter ID laws is to combat voter fraud. The question is What voter fraud? A five-year investigation by the George W. Bush administration famously turned up no substantial evidence of voter fraud. In fact, in none of the 19 states that have rolled out voter ID laws has real evidence of voter fraud been presented. The Pennsylvania voter ID law, passed in 2012 just before President Obama’s re-election, has been subject to a stay by the state court system pending further litigation.

That took a turn on Jan. 17, when Judge Bernard L. McGinley, in a 103-page opinion, struck down the law as contrary to the Pennsylvania Constitution’s requirement of liberal access to voting rights. He cited the research of both parties to the litigation and found that the Pa. voter ID law placed too high a burden on older and minority voters, that the state’s campaign to educate voters about the free ID available was full of “inaccurate messaging” that was never corrected, and that the law did nothing to “assure a free and fair election.”

The Brennan Center for Justice has copious research on why voter ID laws are unnecessary and discriminatory and alienate up to 11 percent of registered voters. Among other things, the IDs are unexpectedly costly even when free ones are available, and they are difficult to obtain for low-income and minority voters.

The Corbett administration will undoubtedly appeal this decision to the Pennsylvania Supreme Court, the same court that essentially rejected the law and insisted on a stay just before the 2012 election. Also, by couching his opinion in a violation of the Pennsylvania Constitution, Judge McGinley has placed this case squarely within the realm of state law. This means that the decision will likely not ever be reviewable by the U.S. Supreme Court, which upheld a similar law in Indiana just last year.

This is a busy time for voting rights, both in and out of Pennsylvania. We should all watch closely to see where this goes. As MSNBC political commentator Chris Hayes said:

“The attempt to disenfranchise voters is a desecration of everything our country stands for. Can you participate in your political system? That is the defining feature of the country from its inception. It is the defining feature of the moments we now view with the greatest pride, and there is something profane about stopping people from exercising that right.”