Draft amendment. Not yet rated or edited by the WeAmend community.
Draft VR-20-06
Voting Rights Amendment
SECTION 1: The people of the United States are guaranteed a representative democratic governmental system whose actions and laws are in harmony with the views of its citizens.
SECTION 2: All citizens are guaranteed an equal and unencumbered voice selecting their representatives and an equal and unencumbered right to vote in fair and transparent public elections and plebiscites.
SECTION 3: The Federal government has the power and the duty to implement and enforce this amendment.
Discussion:
Most amendments are ratified for one of two reasons. The first is in response to a crisis- whether a civil war (13th ,14th, 15th) or presidential heart attacks (25th) or a deadlocked Electoral College (12th). The second occurs once a majority of public opinion has shifted on an issue- including the Bill of Rights (1-10), the Income Tax (16th) and the flip flop on Prohibition (18th and 22nd).
The constitution contains no affirmative right to vote, a perplexing oversight in a democracy. The reason is simple- extending the franchise more broadly would have led to an immediate breakdown of the colonial aristocratic power structure. The Founding Fathers understood voting was a fundamental right, so invented every possible philosophical excuse to omit and blunt a general enfranchisement which could destabilizing the “natural order”. Or, in their vision, lead to “mob rule”.
We venerate our Founding Fathers and have fallen for this self-interested, oft-repeated justification that “voting is a privilege”. No degree of extra-constitutional coping mechanisms can fully atone for its impact, and we continue to fight for universal suffrage as a result.
Over the years, numerous voting rights amendments have been suggested or introduced in Congress. Some, like Rep. Jesse Jackson Jr’s are a wish list of controversial remedies for specific perceived flaws in the electoral process. These proposals have gained little traction and may be better suited for statutory relief. Others, like Rep. Pocan and Ellisons, boldly assert there is a fundamental right to vote. But their proposal, while similar in spirit to many ratified amendments, is so general it has generated little emotional impact, and is vulnerable to easy counter-arguments due to its very simplicity.[1]
A voting rights amendment might be adopted after a voting crisis- such as the hanging chad debacle in 2000, or Covid turning physical polling places into a choice between disease and democracy. In 2000, there was only a brief outcry against the electoral college and hanging chads, that faded quickly. In 2020 there was a muted response to the Wisconsin primary debacle. Although it’s conceivable a constitutional crisis – such as Trump’s refusal to acknowledge a fair electoral defeat- might scare the public into action, no groundswell has emerged. So, a crisis may not be the triggering event.
Fortunately, even in our divided, tribalized nation, Americans continue to believe in the Golden Rule and fair play. We watched our best nature emerge in Florida when they passed a felon re-enfranchisement law. We helped pitch in and provide corona virus economic relief, even while arguing over mask-mandates.
Taking these observations as a guide, this amendment explicitly appeals to universal values of fairness and democratic values. To argue against this amendment, is to argue against your own self-interest. Who doesn’t believe the government should reflect our views? Who can argue against equal access to polls if an American Citizen?
Polling consistently shows a deep support for democracy over party. Conservative rural dwellers in a state dominated by liberal cities want a seat at the table. Democrats in a “purple” state desire an equal chance to win at the ballot box. Everyone realizes elections cut both ways, and the best system is ultimately fair and neutral.
It’s quite possible the only impediment to ratification was the framing of previous amendments[2]. This approach seeks common ground by establishing a minimum voting rights standard, while anticipating that debate and subsequent events will fill in the details with enabling statute. It contains enough specificity to assure an affirmative right to vote, yet sufficient ambiguity to enable a supermajority to support.
Detailed rationale
The words (and even commas) in this amendment are chosen carefully.
SECTION 1. The people of the United States are guaranteed a representative democratic governmental system whose actions and laws are in harmony with the views of its citizens.
People vs Citizens: The people (a larger group than just citizens, but in the spirt of the Declaration of Independence, all people are entitled to certain equal and inalienable rights) have an affirmative expectation to participate in a free and democratic society. People are counted by the census, have due process privileges, etc. However, voting rights are only constitutionally guaranteed to citizens in this amendment (albeit state, and even the federal government, are permitted by statute to extend the franchise to other groups).
A constitutional amendment that does not distinguish between the voting rights of people and citizens is a non-starter in the current political climate- this is a hot button issue.
System: A voting system goes beyond statute to include informal procedures and cultural norms that are equally limiting of that right.
Actions and laws are in harmony with the views of its citizens: Ever since Athens, there has always been a tension between inalienable individual rights, the practical delegation inherent in a representative government, and “mob rule”. This amendment tips the arc of history towards democracy without prejudice on the outcome.
It argues against uneven outcomes, even in light of facially neutral laws. That elected officials are accountable to represent their entire constituency, not just their base. The amendment probably limits winner-take-all elector assignment, argues against gerrymandering, and likely favors a lower hurdle to citizen initiatives.
“Harmony with views” might lead to freer abortion rights (which are widely accepted nationally) but also may lead to crackdowns on immigration (when we go through a period of isolationism). But it also reflects a historical reality that, in general, the country and SCOTUS waits until a consensus[3] emerges in the states before setting precedent.
SECTION 2: All citizens are guaranteed an equal and unencumbered voice selecting their representatives and an equal and unencumbered right to vote in fair and transparent public elections and plebiscites.
All citizens are guaranteed: Reflects the Article IV Section 4 “guarantee to every state in the Union a Republican Form of government”.
Unencumbered: No poll taxes or equivalents permitted. Polling places in convenient locations. No identity card burden. Language and disabled access. Possibly, mail-in ballots will emerge over time to meet the “unencumbered’ requirement.
Equal voice selecting their representative: “Voice” is speech and influence over others. “Voice” is amplified by third party ballots held to same standards as the main two parties, and open primaries. It possibly allows limits on campaign spending and advertising.
Elections and Plebiscites– The right to vote goes beyond choosing your representative. It includes ballot issues and initiatives, which often have a larger effect on democracy than any individual race.
Fair and transparent: Examples include auditable voting records and equipment. The absence of significant fraud. The absence of coercion of voters. Accurate, timely counting of votes.
SECTION 3. The Federal[4] government has the power and the duty to implement and enforce this amendment.
Normally, the enabling section traditionally binds Congress to write appropriate legislation through the phrase “shall[5] have the power”, yet too often Congress ignores or pays lip-service to the will of the people. We have three branches of government- all three must respect the constitution.
No words can force any branch to do its job, but this section makes clear they have an affirmative duty to put this amendment into effect, and to guard against those who might try to undermine its intent.
We choose “duty” after Thomas Jefferson (1861). “Correspondence”, p.574 “The most sacred of the duties of a government [is] to do equal and impartial justice to all its citizens.”
[1] Indeed, this may have affected the ERA’s passage. The ERA amendment was so thinly worded without clarifying its universal benefits and limitations, that it created a vacuum inviting others, particularly Sam Ervin, to reinterpret its meaning to prey on the base fears of the electorate.
[2] Vote-by-mail is growing in popularity, and could (even in the absence of enabling Federal regulation or SCOTUS precedent) become a de facto partial solution to expanding the right to vote.
[3] Only five states still enforced a poll tax before the 24th amendment was ratified, and nearly 2/3rds of the states and territories allowed full or partial women’s enfranchisement before the 19th.
[4] One might include “Federal and State” in Section 3, but this will raise the hackles of adamant states-rightists, who already believe voting rules are exclusively the domain of the state, rather than an inalienable right of all persons.
[5] “Shall” appears 306 times in the Constitution.