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Think the Constitution guarantees your right to vote? Think again

There are unacceptable inconsistencies in how we engage in the most fundamental method of making our democracy work.

In October 2018, people gathered around the Ben & Jerry's "Yes on 4" truck as they learned about Amendment 4 at Charles Hadley Park in Miami. With a single vote, Florida added 1.4 million possible voters to the rolls when it passed Amendment 4, which said that most felons will automatically have their voting rights restored when they complete their sentences and probation.Wilfredo Lee/Associated Press

Thanks mainly to the work of activists, 2019 was an impressive year for expanding voting rights in America. In fact, the re-enfranchisement of 1.5 million voters in Florida has been called the greatest expansion of the right to vote since the passage of the 26th Amendment in 1971 when Congress lowered the voting age to 18.

And it doesn’t stop there. Through hard, collaborative work by activists, politicians, the formerly incarcerated, clergy, and business leaders in multiple states, more formerly incarcerated people will now be able to cast ballots in presidential primaries and the general election. In Louisiana, bipartisan legislation will allow 36,000 people convicted of felonies to vote. Arizona, New York, and Nevada also expanded the right to vote for the formerly incarcerated. And within days of becoming the governor of Kentucky, Andy Beshear signed an executive order restoring voting rights to over 140,000 formerly incarcerated Kentuckians, a measure that could requalify an estimated quarter of the state’s voting-age Blacks.


But while we celebrate these developments and new heroes like Desmond Meade, a formerly incarcerated Floridian who championed Amendment 4, which restored the voting rights of felons in that state, we must still ask: Why did we need to re-enfranchise people in the first place?

Meade’s accomplishments and those of many other committed activists are necessitated by a greater problem — we do not have an affirmative and constitutionally guaranteed right to vote.

The right to vote is something most Americans hold as sacred. But the Constitution is clear on the matter. Although the 15th, 19th, and 26th Amendments say voting rights can no longer be limited based on race, color, prior status as a slave, sex, or age, none of these amendments affirmatively state that a citizen of this country will be allowed to vote. Additionally, each state has significant discretion to establish specific eligibility qualifications to cast a ballot. That’s why people currently serving sentences in Maine and Vermont prisons can cast ballots; why, since 2000, in Massachusetts ballots can be cast by the formerly incarcerated without problem; and why the formerly incarcerated in Wisconsin can’t participate in an election until they have completed their probations. And even if a felon finishes a sentence in Wisconsin, they are not automatically re-enfranchised as they would be in 16 other states and the District of Columbia.


These are unacceptable inconsistencies in how we engage in the most fundamental method of making our democracy work. Voting shouldn’t be harder in Wisconsin than it is in any other state. These inconsistencies animated the earlier parts of the Democratic presidential primary when Senator Bernie Sanders said that Boston Marathon bomber Dzhokhar Tsarnaev should retain the right to vote and South Bend Mayor Pete Buttigieg emphatically argued that the presently incarcerated should not be allowed to vote. This debate is happening because the right to vote isn’t guaranteed to the extent people think.

But what would a constitutionally guaranteed right to vote look like? My colleagues at Demos, a think tank to “power the movement for a just, inclusive, multiracial democracy,” have been actively working to stimulate a conversation that goes beyond voter suppression and toward the comprehensive reforms necessary to realize the full promise of our democracy. And to do this, they have put together 10 objectives that include everything from abolishing the Electoral College to protecting against laws that directly or indirectly dilute the voting rights of historically disenfranchised communities.


But of the 10 objectives, the most important is this: enacting a constitutional right to vote. Soon, Demos will release comprehensive draft language for such a constitutional amendment building on the work of many others. Wisconsin US Representative Mark Pocan introduced legislation for such an amendment in 2013. And Maryland US Representative Jamie Raskin even shared the idea in 2003 as a law professor, years before he joined Congress. In 2001, Raskin noted that in the Bush v. Gore decision, the Supreme Court insisted that there is “no federal constitutional right to vote.” He went on to say that we have only “the voting privileges our states choose to grant us.” So, in the case of Bush v. Gore, Raskin said, “if the Florida Legislature wishes to select presidential electors without public input, the people shall not stand in the way.”

The Florida Legislature’s recent attempt to obstruct the will of the people who voted in favor of Amendment 4 by making the formerly incarcerated pay fines, fees, and restitution before restoring their voting rights underscores the current need for a constitutional right to vote.

Since the ratification of the Constitution, the document has been amended several times to protect the voting rights of African Americans and women, and to extend the right to vote to those 18- to 20-years-old. Each of those amendments took decades of strife and protest to adopt and then implement. Yet even now, the language of the Constitution does not provide an affirmative, unassailable guarantee that all US citizens of legal voting age will be able to vote. Whatever affirmative guarantees we do have are usually in state constitutions or their subsequent amendments.


With a constitutional amendment, it wouldn’t be only the incarcerated who benefit. A constitutional amendment could supersede civically bankrupt voter ID laws. As a constitutional amendment, voting — both protecting it and encouraging it — becomes a congressional matter, and would be standardized across states. With such an amendment, allowing same-day voter registration and automatic voter registration won’t be pipe dreams but best next steps.

However, Congress and its ongoing intransigence stand in the way. Remember how excited the Democrats in the House were when the new Congress convened last year? The first bill members proposed, HR 1, was dubbed the “For the People Act” which they hoped would “expand Americans’ access to the ballot box, reduce the influence of big money in politics, and strengthen ethics rules for public servants, and for other purposes.” I was so excited that I wrote about how a key feature of the bill, automatic voter registration — arguably an easier feat than an entire constitutional amendment — could refresh our democracy, especially for Black people such as myself.

In spite of my excitement, I readily admitted that the task of automatic voter registration likely would be left up to the states because Congress would undoubtedly not pass the bill. In fact, Senate Majority Leader Mitch McConnell killed the bill before it even found its way into a committee hearing with a single tweet: “H.R. 1 is the far left’s sprawling effort to seize more control of the political process. It’s an attempt to rewrite the rules of American politics to benefit the Democrats and their friends.”


This country is past due for at least a conversation about more comprehensively securing the right to vote. And this conversation needs to be so loud that Congress can hear us above the partisan political squabbles.

The mere fact that Florida voters needed to pass Amendment 4 and that Louisiana’s legislators had to re-enfranchise 36,000 people might say to some that we are on a path to progress in America. And that’s right, but the need to pass these laws also indicates that our democracy isn’t as strong as we might think. And it is for that reason that we must consider every means to safeguard the most sacred act of a free democracy: We should at least consider constitutionally guaranteeing the right to vote.

Caleb Gayle is a writer and an Emerging Voices fellow at Demos. He is a recent graduate of Harvard Business School and the Kennedy School of Government, which he attended as a Paul and Daisy Soros fellow. Send comments about this story to ideas@globe.com.