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Voting Rights Amendment

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Congress shall make no law, abridging the right of franchise of adult citizens of the United States, nor make any law affecting the exercise of franchise in a significant disproportionate way by supporters or opponents of any candidate, ballot question or aligned group of candidates, or members of any protected class of citizens (including but not limited to the ethnic groups, religions, sexes, income levels and sexual orientations.)

This is a starting-point draft for what could be a reasonable amendment to the US constitution (and belong in all constitutions.) It addresses the seminal problem of democracies -- the people who are the subject of elections have control over the rules of elections, and can't be trusted not to bend the rules to their advantage. When the legislators can't be trusted is exactly when you need constitutional rules.

This amendment would be designed to ban, among other things

  • Gerrymandering
  • Requiring voter registration rather than automatic registration
  • Depriving felons of votes
  • Poll taxes and all such related tricks
  • Much of what the Voting Rights Act stopped

The test proposed says that if you make a rule, and then a court finds either in advance or after the fact, that the rule will disproportionately affect the exercise of franchise by a party or a major group, the rule is invalid.

The rule needs some refinement. It is easy to see how it might actually be used against its goal. It must be clear that to be unlawful, the rule has to affect the elements of franchise -- voter registration and qualification (if any) and ease of voting.

This would be the first rule to actually recognize the existence of political parties, which comes with some risks.

There should be clarity on how much the rule can create affirmative duties. For example, it takes effort to reach polling places, especially in rural areas. People who own cars (ie. the wealthy) have an easier time voting. This would not require that the government give free rides to the polls for the poor -- parties tend to do that anyway -- but it might require that if reasonable alternatives, like vote by mail or early voting can be made available to level the playing field, they should be done.

We also want to consider the security implications. Vote by mail erases the concept of secret ballot, and it's not hard to see how some interpretations of this rule might encourage less secure things, like online or voting machine voting. On the other hand, we don't want security to be an easy way around the amendment. So it needs pre-tuning.

Could it pass? On one level, who would not be for this fairly obvious principle? The answer, of course, is the same legislators we can't trust to make election rules. All the house members whose seat depends on gerrymandering or other cheats are likely to come up with some excuse why they can't support this. It might need a major groundswell of support, so that not supporting it is viewed as evidence of corruption and cheating. That's one reason it has to be tuned to be pure.

Some would argue, of course, that the guarantee of equal protection under the law already guarantees these rights, and the courts need to be convinced of that. And there are cases before the court on gerrymandering and related issues.

I am presuming that, like other amendments, "Congress shall.." is binding on all the states and branches. If not, I intend it to.

You may ask about felons. Don't they deserve a punishment? They do, but removing their voting rights is not in any way, I suspect, a deterrent to crime. These rules only have effect in aggregate, and that effect generally has a political, rather than deterrent purpose.

What improvements might you make in an amendment like this.

Comments

Ideally, there'd be some way to incorporate metrics. You live in California... ask your favorite city councilperson about the California Voting Rights Act, and by-district elections. Chances are, if your city doesn't do elections that way now, its attorneys are frantically figuring out how they will, because the CVRA gives that as the only safe harbor if challenged on election fairness, though by-district elections, in many cases, seem to be really bad ways to achieve a good democratic result. And in part it's bad because there're no metrics for what a good outcome might be, and no real need to demonstrate past badness in order to invoke the CVRA for changes. If your city has a X% minority population, yet a member of that population hasn't been elected to the city council, that's enough evidence that you have a problem. For any value X. And if any haven't run, it's because perceived bias caused them to think that they wouldn't win, so you have a problem. But if that minority group is spread evenly throughout the population, breaking the city into multiple districts will merely produce smaller-sized elections with poorer outcomes (e.g., when you get four candidates in one district, and none in another, ending up in an appointment).

Ranked-choice voting seems like it'd be a big step forward, but that's not something the CVRA appears to favor, and only by-district elections prevent the cities from being sued.

https://www.eastbaytimes.com/2017/11/20/martinez-concord-latest-cities-told-to-change-elections-or-face-suits/

Or even simpler, Approval ballot, would be great. But one thing at a time. And yes, this rule could start with the states.

You should also not hard code "adults" into the law, but leave the interpretation of the franchise to other laws. There are various city/district-level movements attempting to allow 16-year-olds to vote for school board members, for example. Personally, I'm against, but if such laws were enacted, they'd conflict with the "adult" limitation in your language.

This rule would not prohibit rules to let 16 year olds vote, but it would not protect their voting rights (as written.) It could be changed to leave the definition of voter elsewhere, but it is the rules on who is a voter that are at the very base of this issue.

Why wouldn't it prohibit rules to let 16 year olds vote? That would affect the exercise of franchise in a significant[ly] disproportionate way by members of certain income levels.

Just because the rights of non-adults are not protected does not mean they can't exist. It just means the government is not prohibited from making rules that affect those rights. However, if this needs to be clearer it could be. A rule saying "Under 18 can't vote" (which is of course very common) would not be prohibited by this amendment. You are suggesting that it is not clear on whether a rule saying "Urban people under 18 can't vote" would be invalid, and so that could be clarified, because yes, any rules for under 18s would have to be just all of them or none.

I doubt "Congress shall" would be binding on the states. An amendment being adopted today definitely shouldn't be phrased that way. States are bound through the 14th Amendment, and this amendment would come after the 14th Amendment.

I'd also say that the use of the word "protected" in "any protected class of citizens" is overly vague. Protected how? If it means classes that are already protected by the Constitution, then it's redundant. If it means something else, then it's hopelessly vague.

Finally, "affecting...in a significant disproportionate way" is way too restrictive. Just about any voting law will affect protected classes in a significant[ly] disproportionate way.

Would this amendment allow non-citizens to vote? Laws prohibiting citizens from voting affect members of certain ethnic groups, religions, and income levels in a significantly disproportionate way.

Actually, if you want to avoid disparate impact, you'd have to let everyone in the world vote.

It is explicit it applies only to adult citizens. I actually do think that all who make tax residence in the USA should be able to vote, but I'm not going to get my wish.

However, it is true that you could say the citizen part is only in the first clause.

I don't see how you could say that the citizen part applies to anything other than abridging the right of franchise.

And if it did apply to the states (which it wouldn't), it'd mean every US citizen could vote in every state election in every state.

That could be clarified, but generally the courts know that is not the intent of such rules. But you do have a point that states might play games on who is a resident. While states are allowed to say only resident citizens of the state can vote in state elections, you don't want them able to say (if they otherwise could) that only white people can be residents. Now that particular example would be invalid under equal protection, but they do try to find other loopholes.

Unintended consequences are quite common, and I'm not sure how you'd even clarify things.

It's especially problematic for the House of Representatives, if you want to eliminate gerrymandering. Especially if you want to eliminate gerrymandering without enshrining a two-party system, and while keeping the notion of having representatives who live close to their constituents. And to do it with language short enough, explicit enough, and long-lasting enough to put in the US Constitution? I don't know that that's possible.

You can always go with something to the effect of "gerrymandering isn't allowed" (which is basically what you get if judges are supposed to follow the intent of the rule is instead of what it actually says), but then you're just giving the 9 members of SCOTUS the authority to do whatever the hell it wants to do, so long as they wrap it in an opinion with enough flowery words in it.

In the current US constitution, but if you are ready to amend it, I think it can be dealt with. However, while this amendment forbids it or is intended to, to actually deal with that specific problem, you would be better to enshrine a rule in the constitution. That is difficult though. Some of course just say get rid of geographical representation, but that is unlikely to happen either.

Yeah, getting rid of geographical representation would make it easier. Proportional repesentation with no borders, for instance. But it's nice to have a representative with an office so close to me. Without those sorts of radical changes, I don't see how to do it, though, and I don't know that gerrymandering is that big of a problem that we have to get rid of it at the cost of making such severe changes.

You'd also have to nationalize the elections. Right now federal elections are run by the states. Personally I'm all for abandoning state-run federal elections (and moving to a popular vote for President, which fixes a different problem), but it'd be a major change that a lot of people would oppose. At the same time we should add Internet voting as an alternative to in-person voting (and done in a way similar to absentee voting).

"But it's nice to have a representative with an office so close to me."

Why?

So I can visit.

There are other solutions to gerrymandering which still allow geographic districts, but they are not as simple and pure as proportional representation. The constitution can tell the states how to run their elections without saying the feds are doing that. The states would have to ratify after all.

Maybe I'm not thinking of the right ways, but the only ones I can think of are either too complicated and subject to change to enshrine in the US Constitution or rely on there only being a small number of political parties, which also shouldn't be enshrined in the US Constitution.

As far as the Constitution telling states exactly how to run their elections, that's still way too much detail for the Constitution. Who exactly is allowed to vote? When can they vote? By what method? What proof do they need to register? There are a ton of details which would need to be consistent across the whole country if we were going to give everyone in the country equal standing, and that's something for statutes, not for the Constitution. It needs to be changed and tweaked and updated to reflect new technologies too often.

It's easy to come up with partition algorithms. The court, however, can't dictate the algorithm, it can just tell you that the result is unfair. I have some proposals in this blog, others have made many other proposals.

"then you're just giving the 9 members of SCOTUS the authority to do whatever the hell it wants to do"

Or to put it another way, why would we trust the 9 members of SCOTUS with the power to say what algorithm is fair and what algorithm is unfair, if we don't trust the 435 members of Congress to do so?

Actually, it's the people who should decide this, but if not them, definitely the court. The problem is that the people being elected make the rules on how they are elected. That's a clear and huge conflict of interest. If the court makes the rules, we drop it down a lot. Sure, the court are appointed by the people who are elected, but it's much better than the direct conflict. The court is appointed for life, which reduces it even more.

The way the people decide something in our system is through their elected representatives. It's not ideal, but the general principle is better than any alternative I can think of. Letting the court make the rules on how elections work would be a disaster.

Also, I should point out that, under the current system, the people being elected at the federal level *don't* make the rules on how they are elected. The state legislatures make the rules on how the federal legislators are elected.

But that's clearly false -- while the specific individuals don't make those rules, long ago they formed into parties and do indeed make the rules under which the members of their party will be elected.

Supreme Court members are party affiliated too, even if they sometimes pretend not to be.

Again, just implement proportional representation---solve the problem, not treat the symptoms---and all is set.

Will it happen in the USA? Very probably not.

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