The Constitution and the Right to Vote

Strange as it may sound, there is no right to vote in federal elections expressly stated in the text of the original Constitution.  The reason appears to be that the Founders were nervous about democracy descending into mob rule and the majority voting to take away the rights of the minority.  At the Constitutional Convention of 1787, James Madison expressed the view that “the freeholders of the country would be the safest depositories of republican liberty.”  In other words, Madison believed that people who owned land free and clear would be better guarantors of minority rights than other people would be, better able to stop the tyranny of the majority.

Madison’s view was on the wrong side of history.  Voting rights steadily broadened in the country and several constitutional amendments just assume the right to vote exists, for example the 19th Amendment broadening the vote to women and the 26th Amendment lowering the voting age to 18. 

The U.S. Supreme Court has long deemed the right to vote to be a fundamental right.  In 1886, the Court said the right to vote is fundamental because voting preserves all other rights. [Yick Wo v. Hopkins, 1886].  In cases in the 1960s, the Court wrote that the right to vote is essential in a democratic society and restrictions on it strike at the heart of representative government.  [e.g., Reynolds v. Sims, 1964]  Because the right to vote is considered fundamental in Supreme Court jurisprudence, restrictions on voting must meet strict scrutiny, the highest judicial standard applied to rights.  The government must have a compelling interest and the restriction must be narrowly tailored to achieve that interest.

There is concern, coming from the Left, that the right to vote - not expressly stated in the Constitution and reliant on the Supreme Court’s good will - is on shaky ground.  They cite laws passed by the Republicans in North Carolina cutting back on early voting, curbing voter-registration drives by private groups, eliminating same-day registration, and imposing voter ID rules.   Restrictions of this magnitude would be intolerable if imposed, say, on free speech or freedom of religion, they argue, but the Supreme Court opened the door for them when it stopped federal supervision of elections in southern states in 2013. [Shelby County v. Holder]

There is even an organized effort called FairVote to get a constitutional amendment explicitly guaranteeing an individual right to vote.  If you take a look at FairVote’s board, you will find lots of connections to left-wing groups and causes, even a tie to George Soros’ Open Society Foundation.

So you know they’re up to no good, but here are some what-if’s to ponder:  What if the Democrats succeed, one day, in taking the House, the Senate, and the White House, then proceed to pack the Supreme Court?  What if the permanent leftist majority on the expanded Supreme Court decides the right to vote isn’t deserving of strict scrutiny after all?  What if the new majority starts upholding laws in blue state restricting the rights of Tea Partiers and others on the political Right to hold voter registration drives and knock on doors for candidates?  

What the Supreme Court giveth, the Supreme Court can take away.  I’d be tempted to say a constitutional amendment guaranteeing the right to vote would be in order, but I already know it would become the source of boundless mischief by the Left.