When American citizens think about “fundamental” rights, at least in the constitutional sense of the term, they usually think about things such as the right to marry or the right to travel freely between different states. Many Americans also consider the right to vote a fundamental constitutional right. Indeed, the right to vote implicitly acts as the foundation for a democratic society.
Yet nowhere in the Constitution does it explicitly state that American citizens have the right to vote and, moreover, the Constitution is silent as to whether Americans have the “fundamental” right to vote. Rep. Mark Pocan is co-sponsoring an amendment to the U.S. Constitution that would explicitly enshrine the American people’s right to vote into our nation’s founding document. Congress and the individual states should ratify Pocan’s proposed amendment in order to protect people’s right to participate in our democratic and republican system of government.
In the past few years, restrictive voter ID laws have proliferated across the country, including in Wisconsin. Wisconsin’s voter ID law is currently being challenged in multiple courts, with one state appeals court holding that the law was not a violation of the Wisconsin Constitution, which reversed a lower court’s decision preventing the law from being enforced. Wisconsin is not alone in enacting restrictive voter ID laws, though — just over the past few months Texas and New Carolina have enacted voter ID laws of their own.
Proponents of voter ID laws claim that these laws are needed to protect citizens against the rampant expansion of “voter fraud.” In fact, Gov. Scott Walker stated that Wisconsin’s voter ID law would “go a long way to protecting the integrity of elections in Wisconsin” shortly after he signed Wisconsin’s voter ID law. There is a significant problem with this argument from voter ID proponents, though. When one searches methodically for rampant voter fraud — like searching for the boogeyman — one will not find it. Instead, that person will realize rampant voter fraud (or the boogeyman) is nonexistent; it is an unfounded fear the person has created.
Voter fraud in the United States is virtually nonexistent. In fact, as reported by ABC News, a study conducted by the U.S. Department of Justice demonstrated that between 2002 and 2005, only 26 voters were found guilty of voter fraud. This amounts to approximately .00000013 percent of the votes cast between 2002 and 2005 that resulted in voter fraud convictions. As Colin Powell said, “You can say what you like, but there is no voter fraud. How can it be widespread and undetected?”
In essence, we have politicians enacting voter ID laws to fix a problem that doesn’t exist in reality. In addition, although these voter ID laws are bad from a policy standpoint, under existing U.S. Supreme Court precedent, these laws might pass constitutional muster. The Supreme Court has, in the past, called the right to vote a “fundamental” right subject to strict scrutiny, but recently has retreated from this standard and instead applied a “balancing test.” As the Supreme Court stated in Crawford v. Marion County Election Board, rational “evenhanded restrictions that protect the integrity and reliability of the electoral process itself” are constitutional. But the Court also said that these restrictions “must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’”
Pocan’s proposed constitutional amendment says “every citizen of the United States . . . shall have the fundamental right to vote.” If this were to become a constitutional amendment, it is quite likely that the Supreme Court would then apply strict scrutiny to restrictions on the right to vote, instead of the current balancing test. Applying strict scrutiny to the many voter ID laws enacted across the nation, the Supreme Court would probably strike down most voter ID laws when challenged, if not all of them.
The right to vote is the foundation of any truly democratic and open society. This right is being slowly eroded by numerous voter ID laws across the country. It is time for Congress and the states to ratify Pocan’s proposed constitutional amendment so that every person will be able to vote, regardless of restrictive voter ID laws.
Aaron Loudenslager ([email protected]) is a second year law student.