The Battle for Voting Rights Lives On

(Bloomberg Opinion) -- The first thing to know about the Supreme Court decision that allows Ohio to purge its voter rolls is that it was a case of statutory construction, not constitutional interpretation. The justices were only trying to figure out what ordinary laws say, not what the Constitution means. See helpful commentary from Bloomberg Opinion’s Noah Feldman, Slate’s Dahlia Lithwick and election law scholar Rick Hasen, also writing at Slate.

The second thing to know is that the Constitution doesn’t matter here in large part because there is no established constitutional right to vote for Ohio or anyone else to violate.

Should there be? Yes. While Scott Lemieux points out the limits of advocating for and even passing a constitutional amendment making a right to vote explicit, there’s an excellent case to be made that such a right is already right there in the Constitution — indeed, that it is fundamental to the entire project the Framers were undertaking, even if, for them, that right was severely restricted, something that the 15th, 19th and 26th amendments corrected. The Constitution certainly does not require direct election for all offices, but it does require that all offices, directly or indirectly, get their authority from popular elections, which to me at least strongly implies that voting is fundamental to their notion of a republic. (I should remind everyone at this point that “republic” and “democracy” are best treated as synonyms, regardless of the vocabulary folks used in the 18th century, when they had a lot less experience with these things.)

Beyond that, the question is really very simple: Is democracy better served when it is easy to vote or when it’s difficult? As political scientist Daniel Nichanian says, what this is really about is “a pernicious vision of what constitutes ‘civic competence’ and who Republicans think has earned the right to vote.”

This is an elitist theory of politics — that politics is best decided by only the best of us — with “best,” of course, defined by those who get to set the rules. It is not democracy.

Now, it’s very true that a lot of this is just power politics. It’s also true that this is a form of ethnic discrimination. But I think a lot of people are genuinely attracted to the idea that the franchise should be limited to those who take it most seriously and are, in some sense, most qualified.

But that’s simply contrary to the deepest values of republican politics. The point of having a democracy is that all citizens can participate and everyone will be represented. It is self-government, and everyone has to be involved (or at least eligible to be involved) for that phrase to even make sense.

Nor is there any reasonable limiting principle once the idea of voter qualifications is raised. If one defends making it harder to vote on the grounds that those who are best able will defeat those obstacles, there’s simply no reason not to make it a little harder than that to trim the next level of relatively bad voters from the electorate, and on and on until only a handful of the most dedicated remain. Even if it were true that those who will overcome obstacles are the best voters in the sense of making the best decisions, and even if obstacles can be designed in a way that is fair to all citizens, it still defeats the entire purpose of self-rule.

One of the most promising things in U.S. politics in the last few years has been the recognition by the Democratic Party that voting rights are simply essential and should be a high priority. One of the most depressing things in U.S. politics is that voting rights have to be fought for, and it’s not clear at all which side will win.

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