A War on Voting: The authoritarian agenda removing our Constitutional right to pick representation

You would think we have a right to vote, rather than just a privilege that Republican-controlled states could take away in dozens of different ways.

After all, the 14th Amendment to the Constitution references “the right to vote at any election” and even says that any state that violates that right shall lose members of its congressional delegation as punishment.

The 19th Amendment references “The right of citizens of the United States to vote…”

The 24th Amendment starts, “The right of citizens of the United States to vote…”

The 26th Amendment is all about, “The right of citizens of the United States, who are eighteen years of age or older, to vote…”

Additionally, the Constitution, in Article I, Section 4, says that Congress can make federal laws that overrule state laws restricting or regulating voting:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…”

And, sure enough, Congress did just that in 1993 when it passed the National Voter Registration Act (NVRA), sometimes referred to as the Motor Voter Act because, among other things, it provided for instant voter registration when a person gets a driver’s license in every state in the union. Now known as 52 U.S. Code § 20501, this law of the land opens with:

The Congress finds that –
(1) the right of citizens of the United States to vote is a fundamental right
(2) it is the duty of the Federal, State, and local governments to promote the exercise of that right and
(3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.

And it was not a particularly contentious law when it was passed: every Democrat present in the Senate voted for it, Rockefeller missed the vote, as did all but two Republicans.

So how did we get from the Constitution repeatedly asserting a “right to vote” and Congress passing a law that unambiguously asserts that right, to the current state of affairs where states regularly and methodically deprive citizens of their “right” to vote and instead claim that it’s merely a privilege?

As I lay out in The Hidden History of the War On Voting, much of the blame rests with the most conservative and regressive of our federal institutions, the Supreme Court.

The first real test of the NVRA came in 2018, when Ohio’s Republican Secretary of State, John Husted, went on a voter-purge binge – that hit Black, student and elderly neighborhoods particularly hard – and was sued by the A. Phillip Randolph Institute for violating Ohio citizens’ right to vote.

In a bitter 5-4 decision, the conservative majority ruled in Husted v Randolph that purging voters because they failed to return a junk-mail-like postcard was entirely legal.

It is a practice once called “caging” back when Karl Rove’s guy was allegedly doing it and it was illegal but that has, since that Court ruling, spread to pretty much every Republican-controlled state in the nation.

Justice Alito’s decision was particularly biting, asserting that the arguments made by the citizens who’d lost their right to vote were “worse than superfluous” and their argument that they shouldn’t have to regularly check in with the Secretary of State’s office to stay on the voter rolls represented logic “no sensible person” could agree with.

Sensible or not, in his dissent, liberal Justice Breyer pointed out that around 4% of Americans move every year. Yet, he wrote, “The record shows that in 2012 Ohio identified about 1.5 million registered voters — nearly 20% of its 8 million registered voters — as likely ineligible to remain on the federal voter roll….”

Justice Sotomayor’s dissent was even more scathing.

“Congress enacted the NVRA against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters,” she wrote, “including programs that purged eligible voters from registration lists because they failed to vote in prior elections.

“The Court errs in ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against.”

She then quoted the “right to vote” preamble noted above, and, essentially, accused the conservatives on the Court of helping Republicans in the states they controlled engage in massive racial and economic discrimination in the voting process.

“[This decision] entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate. … Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote.”

The “right to vote” took another hit when the State of Florida’s Supreme Court ordered a recount of the 2000 presidential election but five conservatives on the US Supreme Court ignored the 10th Amendment (“states’ rights”) and stopped the recount.

That was a good thing for George W. Bush because when the Florida vote was later recounted by a consortium of newspapers including The New York Times and The Washington Post, they found, as the Times noted on November 12, 2001, “If all the ballots had been reviewed under any of seven single standards and combined with the results of an examination of overvotes, Mr. Gore would have won…”

Nonetheless, Chief Justice William Rehnquist dismissed all the nation’s concerns about the Court flipping a presidential election in that totally partisan 5-4 decision, writing in his opinion “the individual citizen has no federal constitutional right to vote for electors for the President of the United States.”

Which casts us in a pretty terrible light. As Congressman Jamie Raskin points out, “The constitutions of at least 135 nations — including our fellow North American countries, Canada and Mexico — explicitly guarantee citizens the right to vote…”

Instead, Raskin notes, we’re in the company of countries like Azerbaijan, Chechnya, Indonesia, Iran, Libya, and Pakistan. Congress must explicitly — again — assert that every American citizen has an absolute right to vote and no circumstance or phony excuse may allow state or local governments to infringe that right.

To our great good fortune, Senator Jon Ossoff has introduced legislation — matched by a bill being introduced in the House by Congressman Mondaire Jones (NY-17) — that not only asserts our right to vote but gives us the explicit power to challenge in court any state or state official who interferes with that right.

The ideal circumstance, of course, would be a constitutional amendment that nails this right into the Constitution (on top of the four that already do), but given how hostile Republican-controlled states are to voting rights it would never hit the three-quarters-of-the-states necessary for ratification (or, almost certainly, the two-thirds of Senators needed).

For Democrats to block Republican efforts to push another corrupt strongman like Trump into the White House, they must hold and build on their current majorities in 2022 and 2024. That will require free and fair elections. Republicans are pushing a full-blown authoritarian agenda and they know it is so unpopular that the only way they can get it through is to suppress the vote and rig the system.

That is why, just in the past six months, they have already successfully passed previously-unthinkable major voter suppression laws in 18 states and have them pending in many more. They’ve changed the law in Georgia and several other states so that they can now throw out the votes from neighborhoods or cities where they don’t like the outcome; all they have to do is vaguely assert a “suspicion of fraud.”

If we fail to pass this or similar legislation protecting American voters, Republicans will continue to eviscerate the voting right they have now turned into a privilege until it becomes completely meaningless. And that will signal the end of America as we know it.