Where in the constitution does it say voting should be as convenient as possible?

I got this question on Quora (actually a longer version of it) and wrote up my thoughts about voting. I’m writing this in the late summer of 2020, and the presidential election is coming up in a few months. Naturally that has brought out the complaints about “voter id laws” suppressing the vote, and the inevitable trolling questions like this one. So in that context, here is a fuller, in depth, discussion of what the constitution says about making it easy to vote.

The constitution does not require us to make voting “as convenient as possible,” but the constitution does put some restrictions on how difficult a State may make it to vote. Read on. (apologies in advance for length).

The original constitution says surprisingly little about voting by citizens. The members of the House of Representatives were to be chosen “by the people of the several states” but the constitution does not actually require that the states use voting as a mechanism to do it. It was simply assumed. In fact, each state could set their own restrictions on voting, as long as the same rules were used for the Federal government as were used for the State governments.

You have to get to the amendments before you get to any discussion of voting rights by citizens.

First off, the 14th amendment (one of the three civil war amendments), section two, states that if any state prevents eligible people from voting, their number of representatives in Congress will be reduced to match. This was originally meant as a mechanism to force both Union and Confederate states to allow freed slaves to vote. This is the first place where an age limit was set and made uniform. The age of 21 years was set as the voting age, and the right to vote was to be uniformly applied to all male citizens.

However, it was the 15th amendment that confirmed that every person would have a constitutional right to vote. And it did it in a back hand manner. Rather than saying “everyone can vote,” it says “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

In the 15th amendment, it is simply assumed that citizens have the right to vote, but that there were conditions that prevented that right. As a result of the 15th amendment, some, but not all, of those conditions were repealed.

Remember that the 15th Amendment did not give women the right to vote. It did not give Native Americans the right to vote. It did give black men the right to vote.

However, look carefully at the words. Especially two words: “or abridged”.

The word abridge in this context means “to diminish or curtail”. It means: The US and the States will not diminish or curtail the rights of citizens to vote on account of race, color or having been a slave.

This is where we get the requirement that voting must be convenient. It must be easy. Because anything that is not easy, that makes voting hard, is abridging the right to vote to some person. There has to be a reason why something is difficult.

In other words, there is a legitimate need to understand that a person is a citizen, and that can be done at time of registration, not voting. But there is no legitimate need to prevent a citizen from voting, and any “difficulty” added in by some state or federal law can be challenged, successfully, for abridging the right to vote.

The nineteenth amendment repeated the use of the word abridged. This one, of course, gives women the right to vote:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

Skip forward a few years.

The 24th amendment is curious because it is more narrow. It prevents the states from charging a poll tax, (a fee that a voter has to pay for the right to vote), but it only does so for elections including a federal office. In other words, the 24th amendment is narrow. It is LEGAL to use a poll tax to prevent a voter from voting for state legislatures or governors. It is ILLEGAL to prevent them from voting for the US Congress or presidential electors.

Lastly the 26th amendment changes the voting age to 18, and also uses the term “abridged”.

So you see, the right to vote has been confirmed multiple times, but using narrow language. States cannot deny or abridge the right to vote on these various conditions: race, color, former slavery, gender, and age. But everything else is fair game. So States CAN abridge the right to vote on whether you can speak English. And States CAN abridge the right to vote on whether you have ever been convicted of a crime.

Some of these gaps have been filled by laws that clarify and extend the right to vote to citizens who do not speak English, for example. However, it’s only been a state-by-state fight to make it easier for former felons to vote (the last state to formally block former felons from voting is Iowa, and the Governor of Iowa has vowed to remove that restriction just this year).

The fact remains that forcing people to prove that they are a citizen, every time they vote, is onerous. We can ask them to show that they are a citizen when the register, and we can do so in a manner that does not place an unreasonable burden on them. There are American citizens who have been voting for decades who can no longer vote because of these new requirements implemented in mostly Republican-led states. And requiring a photo-id at voting time is pretty silly now that we have computers that can verify signatures.

You see, if the person who registered to vote is a citizen and if that person provided a signature, we can now use the signature as proof of identity. It’s not perfect but it’s pretty good… much better than photo id. With a photo id, a father can vote for his son or a son for his father, if they have the same name (which many do). Also you can vote for someone else with the same name as you in your same precinct. But with signature matching, any attempt to slide by the rules in this way is blocked rather firmly. Forgery is tough, and the criminal penalty for forgery, along with the penalty for vote fraud, makes it pretty much non-existent.

Remember that the Brennan Center found that about 11% of Eligible Americans do not have a photo id. Preventing people from voting, when they are already legally registered to vote, on the basis of a photo id is unreasonable. It is abridging the right to vote.

Some folks may say, “but getting an ID is free and easy.” To which I reply “free in many cases, easy in many cases… the devil is in the details.” There are some people for whom getting a state photo ID is not free and/or not easy.

Unsurprisingly, those people cannot vote out their state legislators for preventing them from voting. It’s a tautology. If you cannot vote, you have no voice. If you have no voice, who will give you the right to vote?

It’s up to good people to seek to extend their privileges to others whose rights have been abridged, either through the courts or through elected representatives.

Leave a Reply

Your email address will not be published.