Republic weakened by court's acceptance of voter restrictions
The Supreme Court needs to brush up on the U.S. Constitution, because many of the justices seem to have forgotten their duty to protect the most fundamental right of all - the right to vote.
The founders clearly recognized its importance. They included a clause in the Constitution about it: "The United States shall guarantee to every State in this Union a Republican Form of Government" (Article IV, Section 4). In other words, citizens have a right to vote for their political representatives - a right that is literally guaranteed.
Initially, the Founding Fathers offered a fairly cramped reading of who actually received the right to vote. Only white, propertied men were considered citizens. But Americans have steadily expanded that definition. By the 1830s, states had eliminated property qualifications for voting. The 15th Amendment ratified in 1870 technically expanded the right to vote to black men (although black men and women only truly gained the right to vote with the passage of the 1965 Voting Rights Act). Women were guaranteed the right to vote with the passage of the 19th Amendment in 1920. The 24th Amendment ratified in 1964 declared poll taxes unconstitutional. And the 26th Amendment reduced the voting age to 18.
The steady expansion of the right to vote to include more Americans has been one of the hallmarks of our successful experiment in self-government, and for most of the past half-century, the Supreme Court has actively assisted in that expansion. Most importantly, the xourt ruled in Baker v. Carr (1962) that the apportionment of legislative districts fell under the purview of the court. Chief Justice Earl Warren declared this as the most important case decided during his tenure on the court.
Think about that for a moment. He did not choose the far more famous Brown v. Board of Education declaring segregation in schools unconstitutional. He chose Baker v. Carr. Why? Because voting in a republican form of government is the most fundamental right a citizen has, the one on which all other rights are predicated.
Freedom of speech has little significance when it is not coupled with elections. The founders recognized this. Federalist #52 states that "the definition of the right of suffrage is very justly regarded as a fundamental article of republican government." Baker v. Carr laid the foundation for the principle that all votes should be equal - a principle that the current court seems happy to abandon.
After gutting the Voting Rights Act in its 2013 decision Shelby County v. Holder, the court has shown increasing willingness to allow states to impose greater and greater restrictions on voting. The most recent decision came earlier this month when the court upheld new Arizona restrictions even though those restrictions seem likely to fall disproportionately on African-American voters.
The majority opinion claimed that the state had a legitimate interest in rooting out fraud, but they seem to have trouble looking through the correct end of the telescope. The fact is that there is almost no evidence of fraud in any state or national elections. On the other hand, there is ample evidence that large numbers of citizens with a legitimate right to vote are not having their votes counted or are failing to vote because of the increased burdens that many states are placing on voting.
What possible scale of justice can weigh virtually nonexistent fraudulent votes more heavily than large numbers of legitimate votes being lost because of these restrictions?
This new direction to more restrictive voting is in contrast to almost every other major long-term democracy in the world. Most countries look for ways to make voting easier, including declaring Election Day a national holiday or allowing electronic voting from home.
This country took a long time to extend its guarantee of a republican form of government to all of its citizens. It would be a sad twist of history if we continue to undo almost two centuries of progress expanding voting rights and return to the dark, old days when voting was seen as the privilege of the few, not the right of all.
• Andrew Trees, of Lake Forest, is a professor at Roosevelt University and teaches constitutional law.