An intriguing newly-proposed constitutional amendment would guarantee a fundamental right to vote in elections. It's often noted that the Constitution grants no true affirmative right to vote (but most state constitutions guarantee it in some form); this amendment would remedy that.
But, I have a number of unanswered questions that I'd like answered before I can fully evaluate this amendment.
Here's the text of the proposed amendment:
Section 1. Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.
Section 2. Congress shall have the power to enforce and implement this article by appropriate legislation.
We see a few qualifications: the right to vote attaches only upon reaching voting age (which cannot be later than 18 years of age), it only attaches to citizens, it only attaches to public elections, and it only attaches to elections in the jurisdiction in which the voter resides.
Which leads me to a few questions.
1. Can felons and ex-felons convicted of election-related crimes be prohibited from voting? The proposed amendment would probably extend the right to vote to all felons imprisoned (currently disenfranchised in 48 states) and all those paroled, on probation, or ex-felons (currently disenfranchised to varying degrees in many states), extending the right to vote to five or six million new voters.
There would surely be vigorous debate about this dramatic expansion about the right to vote for felons and ex-felons. But there's one small area of felon disenfranchisement that strikes me as relatively uncontroversial. A number of states only disenfranchise felons and ex-felons who are convicted of an election-related crimes. This seems to be precisely the kind of narrowly-tailored disqualification that, whatever one thinks about other kinds of felon disenfranchisement, would not be terribly problematic.
But we know in other contexts that "fundamental rights" (like the right to marry in Turner v. Safley) cannot be impermissibly burdened by the state. Would a state's decision to disenfranchise those convicted of election-related crimes be deemed a violation of their "fundamental rights"? It's a question worth asking.
2. Could the state prevent the mentally handicapped from voting? Most states have some kind of rule preventing the mentally handicapped from voting. Once voting is deemed a "fundamental right," will these laws, as they presently exist, stand? What kind of rewriting or retailoring would be necessary?
3. Are special purpose elections "public" elections subject to this new amendment? A series of Supreme Court cases authorized states to deviate from the "one person, one vote" rule in cases like Salyer Land Company v. Tulare (1973) in "special purpose" elections. The case law in this area is not terribly transparent. But at a very high level, we see that there are limited circumstances in which a "public" enterprise (e.g., water distribution) that are treated more like a private venture. And in those cases, even the residents on the land may not have the right to vote (where votes are weighted based on the value of the land or the total acreage). Would this amendment treat these "special purpose" elections as "public" elections, entitling, at the very least, residents the right to vote?
4. How does "one person, one vote" fit? The larger issue raised from the discussion of Salyer Land above is, of course, whether "one person, one vote" would extend to other contexts. The constitutional source for "one person, one vote" has been, shall we say, underdeveloped. If this amendment were to become a part of the Constitution, would the existing "one person, one vote" analysis change in anyway? Would it, for instance, extend to other contexts, such as judicial elections? Or is "fundamental right to vote" not the same as the, perhaps, undertheorized idea of what "one person, one vote" actually means (e.g., representation among equal numbers of constituents)?
5. Should Congress gain a new power? Our federal government is a government of enumerated powers. But Section 2 of this amendment would give Congress a new power: the power to enforce the "fundamental right to vote." The scope of Congress's power in other similar voting-related contexts has been the subject of some dispute recently. So what would the scope of Congress's power look like? And would it, eventually, mean that the states would cede virtually all power over elections to the federal government?
Whether one thinks that the questions raised and the possible answers are good ideas or a bad ideas is something I'm not (at the moment!) prepared to discuss. I'm sure, too, there are robust discussions in state courts about what state constitutions mean when they guarantee a fundamental right to vote (or something like it). But these five questions--and, I'm sure, many others--are worth considering in the early stages of this proposed amendment.