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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