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Article Excerpt
One of the more remarkable features of election 2000 was its bringing to the surface of political life the peculiar fact that Americans do not possess a constitutionally-guaranteed right to vote for president of the United States. Even for those of us who study politics professionally, it was a bit as though a half-forgotten corpse had suddenly been jarred loose from the river bottom and floated upward into view.
This happened in two ways, both of which jolted political junkies without penetrating public consciousness very broadly. The first, of course, was when the Republican majority in Florida's legislature announced that the legislature itself would select the state's delegates to the electoral college if the outcome of the popular election remained legally unsettled on 12 December, the date by which electors were to be chosen. The legal basis of such an action, they claimed, was located in Article II, Section 1 of the Constitution, which specifies that "each state shall appoint in such manner as the legislature thereof may direct, a number of electors" who will meet and cast ballots for president. Happily for the future reputation of the sunshine state's legislature, the Supreme Court's rapid decision in Bush v Gore rendered this legislative hijacking of the election unnecessary. Yet there can be little doubt that a majority of Florida's legislators were prepared to take that step and to assert their primacy over the state's citizenry--to guarantee the election of George W. Bush; had they done so, a political firestorm would almost certainly have ensued.
The second sighting of the floating corpse was provided by the Supreme Court itself. Justice Antonin Scalia cheerfully pointed to it on 1 December 2000 during oral arguments in Bush v Palm Beach County Canvassing Board, the first of the two cases to be heard by the high tribunal. While interrogating Al Gore's attorney, Laurence Tribe, Scalia noted that "in fact, there is no right of suffrage under Article II." Ten days later, in Bush v Gore, the majority opinion drove the point home, emphasizing that "the individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college." Citing the 1892 case of McPherson v Blacker, the Court even went a step further, pointing out that the state, "after granting the franchise in the special context of Article II, can take back the power to appoint electors." Thus had Florida's legislators acted on their own, the Supreme Court would have backed them up. (1)
The Court's flat assertion that American citizens have no constitutional right to vote for president attracted little public attention: few people ever read the convoluted opinion, and the press was understandably focused on the fact that George W. Bush had just become president-elect. As a matter of constitutional interpretation, moreover, the Court's assertion was not far-fetched and not nearly as much of a stretch as other ingredients in Bush v Gore. The federal Constitution never has contained any affirmative guarantee of a citizen's right to vote in federal elections. Article II, Section 1 does clearly seem to leave key decisions to state legislatures. All of the amendments to the constitution dealing with the right to vote (and they are numerous) are phrased negatively rather than positively: they prevent the states from denying people the franchise on particular grounds, but they do not directly confer the right to vote on anyone.
Yet as a statement about contemporary American political institutions, the Supreme Court's pronouncement, which is now the law of the land whether or not it was before December 2000, is extraordinary. The citizens of the nation that prides itself as the standard bearer of democracy on the world stage do not possess an unambiguous right to vote for the country's most powerful political office. The constitutions of more than a hundred nations around the world positively affirm the right of citizens to vote, but the Constitution of the United States does not. What if someone told the Taliban or China's ruling elite? What if someone told Nebraska's farmers or New York's firemen or my Uncle Pat, all of whom think they have a right to vote?
At one level, of course, the issue is a technical one: in practice (and thanks to their state legislators), the vast majority of American citizens do possess a right to vote for their state's delegates to the electoral college; and that right is (at least obliquely) sheltered by a substantial array of constitutional amendments, statutes, and court decisions. Nonetheless, the events surrounding election 2000 inescapably bring the question of reform to the foreground. Should the federal Constitution be amended in order to affirmatively guarantee the right of American citizens to vote for president and to have those votes determine each state's vote in the electoral college? (2) My own answer to that is an unequivocal "yes." Such a step seems long overdue, and this is as good a time as any to make the move.
MAKING THE CONSTITUTION MATCH OUR VALUES
I should say at the outset that I personally would favor an even stronger measure: abolishing the electoral college altogether, and electing the president and vice-president by means of a national popular vote. The electoral college is a flawed and archaic institution that has wrought mischief in roughly 10 percent of our national elections. It functions at all only because it has long ceased to serve the deliberative function for which it was designed; and its granting of disproportionate weight to voters who live in the small states looms as an overt contradiction of the principle of "one person, one vote" that is at the heart of modern conceptions of democracy. That said, the chances of abolishing the electoral college (thanks in good part to the opposition of those small states) seem to be roughly on a par with the chances of Fidel Castro becoming governor of Florida.
The proposition discussed here, therefore, is more modest but more pragmatic: it might have some possibility of becoming law. As framed, the proposal would leave the small-state advantage intact while presumably permitting each state to decide how to allocate its electors--that is, by district or in one bloc. The proposal would nonetheless achieve two critical goals. It would prevent state legislatures from ever acting to select members of the electoral college on their own or in any way other than through popular election. More abstractly--but perhaps more critically--it would embed the value of a right to vote for the nation's highest office in the federal Constitution.
The most fundamental reason for amending the Constitution in this way is to bring a late eighteenth-century Constitution into harmony with late twentieth- or twenty-first-century ideals and values. The phrase "the right to vote" did not appear in our original Constitution, an omission that was only partially a consequence of the Founding Fathers' decision to leave most suffrage matters to the states. The phrase was absent, both from the first Constitution and, notably, from the Bill of Rights, because there was substantial uncertainty and disagreement among the Framers about whether voting was in fact a right. The more conservative among them (probably a majority) believed it to be a privilege; and even those who did call it a right were generally quick to point out that it was not by any means a universal right. As is well known, voters in nearly all states of the early republic were adult (usually white) male property owners or tax payers.
A great deal changed over the next century and three-quarters. Property and taxpaying requirements were stripped away during the first half of the nineteenth century, although they made some surreptitious returns thereafter. The Fourteenth and Fifteenth Amendments added the phrase "the right to vote" to the language of the Constitution, while giving formal (if contested and then flagrantly ignored) protection to the political rights of African Americans. The exclusion of women was prohibited in the first decades of the twentieth century. And the 1960s witnessed a stunning expansion of voting rights at the hands of both Congress and the Supreme Court, effectively ending discrimination based on race, literacy, poverty, and residential mobility. As I have recounted in detail elsewhere, these changes took a great deal of time; they were always contested; they were often rolled back in partial and incomplete ways. But the legal, political, and cultural environment did change profoundly. (3) Few Americans today would openly advocate disenfranchising blacks, Natives Americans, women, or poor people. (4)
The intellectual or ideological history of suffrage in the United States can be viewed as a prolonged process through which Americans came to view voting as a right rather than a privilege and also as a right similar to other rights, adhering to all citizens or at least all adult citizens. The two prongs of this issue infused debates about the franchise for many decades, leading, among other things, to distinctive contortions of language, argument, and rhetoric. As early as the revolutionary period, advocates of franchise expansion (to include those without property, for example) defended their position on the grounds that voting was a right or even a natural right. Conservatives commonly sought to rebut such claims by pointing out that if voting were a right, then all men, even African Americans, should have it--and women and children too, as John Adams famously noted. On the other hand, if suffrage could reasonably be denied to any category of persons (and few were willing to argue the contrary), then it must not be a right but a privilege. As a privilege, it could reasonably and legitimately be restricted to those who would wield it "responsibly." Such arguments led throughout the nineteenth century to often murky claims that suffrage was an "earned" right or a "conferred" right, or one that could only be exercised by people with particular capacities or qualities. A delegate to the Indiana
constitutional convention of 1850 announced that he believed in "the right of universal suffrage," which he asserted belonged only to "all free white male citizens over the age of twenty-one." (5) So much for universal.
It was during the cauldron of Reconstruction that prominent political leaders first began to openly embrace the full logic of the claim that suffrage was a right: as Senator Henry Wilson put it in words eerily predictive of public debates that would occur a century later, "Let us give all citizens equal rights, and then protect everybody in the United States in the exercise of those rights." His colleague, Oliver Morton, maintained that the same ideals that led him to favor enfranchising African Americans obliged him to oppose suffrage restrictions based on property, literacy, or nativity. In the 1870s and 1880s, numerous male delegates to state constitutional conventions applied that logic to women as well. "Women's right to the ballot seems so clear," noted an Ohioan in 1874, "that it is like some of the mathematical axioms." "Whatever rights are given to one...
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