Martin O’Malley calls for constitutional amendment guaranteeing affirmative right to vote

Martin O’Malley will call for a constitutional amendment guaranteeing the right to vote in a campaign appearance today in South Carolina, CNN reports.

While the Fifteenth Amendment guarantees that the right to vote shall not be abridged on the basis of “race, color, or previous condition of servitude,” this is seen as being a defensive right to vote as opposed to an affirmative one. O’Malley’s amendment, in line with a proposal from Congressmen Mark Pocan and Keith Ellison, would establish the right to vote for all American citizens of legal age, going beyond the Fifteenth Amendment’s protections.

As O’Malley wrote in an email:

Last year, Republican state legislators in 29 states introduced more than 80 restrictive bills to require a photo ID, make voter registration harder, or reduce early voting. We know why they’re doing this: because Americans without a photo ID are disproportionately low-income, disabled, minority — and Democratic.

There’s some debate as to whether an affirmative constitutional right to vote would carry much legal significance. That the Fifteenth Amendment outlines specific cases in which the right to vote can’t be abridged assumes a right to vote in the first place. Combined with the Fourteenth Amendment, guaranteeing equal protection under the law, this could be construed as a patchwork protection that gets us almost if not all the way there to a constitutional right to vote.

Of course, that’s not how the courts have seen it. As Scott Lemieux at The Week wrote last year:

Even in its worst periods, the Supreme Court did not uphold state laws that explicitly excluded African-Americans from the franchise (whether directly or through “grandfather clauses” that barred African-Americans from voting). But the court did uphold state restrictions, such as literacy tests and poll taxes, that were written in race-neutral language — even though they had the same effect and intent as outright disenfranchisement.

Establishing an affirmative right to vote would make these kinds of dog-whistle voting restrictions as unconstitutional as explicitly racist ones, and then some. With a constitutional right to vote, any law restricting ballot access would have to be shown as having a compelling state interest in order to be constitutional — even if it affected members of every demographic group equally.

However, as Lemieux continues, there’s still reason to be skeptical of the proposal’s effect on our political system:

Martin O'Malley, via Edward Kimmel / Flickr

Martin O’Malley, via Edward Kimmel / Flickr

The limitations of using the Constitution to protect the right to vote can be summed up in two words: Shelby County. Section 2 of the Fifteenth Amendment explicitly empowers Congress “to enforce this article by appropriate legislation.” Nonetheless, in 2013 the Supreme Court gutted the 1965 Voting Rights Act, even though Chief Justice John Roberts’ opinion was not backed by any constitutional provision suggesting a restriction on Congress’ Fifteenth Amendment powers, nor any precedentnot authored by Roberts himself. As Judge Richard Posner observed inSlate, “The opinion rests on air.”

Any constitutional right to vote will still be subject to the interpretation and discretion of the Supreme Court. There’s a solid case to be made that voter ID laws, voter registration restrictions and any number of the other Republican electoral reforms violate the constitution already. If (and probably when) those laws make it to the Supreme Court, it will likely not make much of a difference whether they interpret them in the context of the Fourteenth and Fifteenth Amendments, or if they interpret them in the context of a new, affirmative right to vote amendment. They could still write an opinion that “rests on air.”

However, I’m not sure that’s a legitimate reason to back down on the basic premise that the current right to vote as outlined in the Constitution is weaker than it should be. Just because the Courts can make a bad call doesn’t mean we shouldn’t establish a stronger reference point on which we can argue that their call was bad. As noted above, an affirmative right to vote doesn’t nix voter ID laws because they’re racially discriminatory; it nixes voter ID laws because the state can’t show that it has an interest in requiring an ID in order to vote. That’s a radically different legal framework, with no room for racially neutral language loopholes, that would make a Supreme Court decision upholding voter ID laws much more wrong than it would be under the current one.

Lemieux (and others) also pointed out that such an amendment is almost certainly not going to pass. Amending the Constitution is notoriously difficult, even if a sizeable share of the amendments have dealt with voting and elections (women’s suffrage, lowering the voting age, term limits for presidents, e.g.), so we shouldn’t expect O’Malley’s proposal to be enacted.

Again, that’s no reason to not get behind the idea. We should expect voting rights to be a campaign issue in this election, and we should speak about it in terms of ideals. After all, an affirmative right to vote should exist; it is a good idea.

Aren’t campaigns the time to talk about good ideas, regardless as to whether they’re politically feasible?

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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4 Responses to “Martin O’Malley calls for constitutional amendment guaranteeing affirmative right to vote”

  1. fry1laurie says:

    200+ years too late, but it comes at a great time and is desperately needed.

  2. Indigo says:

    I’m concerned about the multiplication of laws on top of existing laws, especially where enforcement is weak anyhow. In the case of voting, though, I think it’s well past time to consolidate the system rigorously, sweep aside state ACORN type efforts to limit the vote, and pass a constitutional amendment that does not equivocate. The first order of business will be to word an iron-clad amendment. The likelihood of passing it is not great in the current congress but an even greater trial awaits, if it can passed. It has to be ratified by the states and you know, I have serious doubts that the enough states will ratify it to pass it. The fact of the matter is, I doubt that enough states would ratify the Constitution in these wicked times.

  3. BeccaM says:

    The right to vote as defined within the Constitution is weak because the founders made it that way. They had a whole lot of good ideas, but when it came down to who was to be permitted a voice in the government, they were elitist prigs. Originally, only white male landowners were granted the right to vote by most states. And we didn’t have direct election of Senators until the 17th Amendment was passed in 1913.

    Right now though the Republican party no longer believes in any kind of right to vote for anybody who doesn’t vote for them, and they control more than half of the state governments. There’s no way in hell O’Malley’s amendment would pass for at least the next 5-10 years, if not longer.

    The single biggest strategic blunder the Democrats made was when they jettisoned Dean’s “50 State” approach and blew the 2010 election at the state level. And much of that was because after Obama’s election in 2008, rather than following through and using the power of the presidency and their majorities in Congress (including a filibuster-beating 60 vote majority in the Senate), they fought among themselves and kept wringing their hands about how powerless they were to follow through on the many populist promises of the 2008 election campaigns.

    This isn’t to say I think this kind of amendment is a bad proposal — it’s a good one. The problem with prohibitions against certain kinds of anti-voter discrimination is they are a defensive fight. The 14th Amendment was supposed to guarantee rights for freed African-American slaves and prohibit racial discrimination…so the bigot-states just wrote laws that had the effect of racial discrimination without being explicit about it — things like poll taxes and literacy tests, given only to certain ‘selected’ voters who for some reason were always people of color.

    But like I said: The Republican party no longer believes in voting rights for anybody but Republicans.

  4. Doug105 says:


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