Some Complicated Truths About Voting In America

America has an arduous history when it comes to voting, and many of us take the opportunity for granted. It’s not until you stop and think about what a cast vote actual means, and how hard many have fought to get here, that the entire process feels much less obvious.

As anyone who has received at least a 5th-grade education in the United States should know, the presidential election is not a direct popular vote. We don’t just count up all the votes and name the person with the majority as the winner. Al Gore knows about this. Hillary Clinton knows about this.

Instead, we use the Electoral College — an antiquated institution created in fear of an uninformed and unengaged general public (actually, slavery). In the end, it is the electors of the Electoral College that pick the president.

But enough talk about grade-school civics.

It gets more complicated…

There is no requirement that an election actually happens.

Yup. It’s right there in Constitution Article II, Section 1, Clause 2:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Catch all that? The important bit is in such Manner as the Legislature thereof may direct”. This is basically saying that each state, through its legislature, can decide how it wants to choose who it sends to the Electoral College. It doesn’t say anything about holding an election.

It gets more complicated…

Okay, there kind of is a requirement that an election actually happens.

So why are there elections? The obvious answer is that Americans have an affinity towards democracy, and a bunch of Ohioans would be pretty upset if their neighbors in Pennsylvania got to vote while they didn’t.

But more importantly, the Constitution gives states a pretty good reason not to pull a stunt like that. We find some solace in Section 2 of the 14th Amendment:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

In between all that outdated garbage about needing to be a 21-year-old white dude, we see some purity: “when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied […] the basis of representation therein shall be reduced.”

This clause is sometimes called “one person, one vote.”

It means that if a state tries to pull a fast one and come up with some way of choosing electors that isn’t a “free and fair” election — the definition of which has changed a lot over time — their representation in Congress will be reduced in proportion to such oppression. In other words, if Ohio chose to not let people vote, Ohio would lose all its seats in Congress.

But this provision is rather weak. It penalizes states that withhold the right to vote but does not force them to grant it.

It gets more complicated…

There have been many attempts by states to skirt around this clause, and there have been many lawsuits challenging such disenfranchisement.

Notably in Bush v. Gore (2000) 531 U.S., at 104–05:

Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. … It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.

And while the Supreme Court did limit this decision to only Bush v. Gore and said it should not be used as a precedent, not everyone agrees that the court has the authority to make such a limitation.

It gets more complicated…

And who gets to vote?

The 14th Amendment only cares about white men. So we have things like the 15th Amendment:

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.

And the 19th Amendment:

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.

And the Voting Rights Act of 1965.

Ah, the Voting Rights Act. A billion words could be written on its positive impacts and the consequences of its gutting in 2013. I’ll leave that as an exercise for the reader.

It gets more complicated…

Can you think of a group of people that are often not allowed to vote today?

Many states don’t allow convicted felons to vote for a certain amount of time. It seems like the likely legal justification rests in one sentence fragment from the 14th Amendment:

except for participation in rebellion, or other crime

That tiny “or other crime” seems to pack a lot of punch and negate an almost obvious assumption that citizens who have been convicted of a felony should be guaranteed the right to vote after they have served their sentence.

You might even argue that they should be able to vote while serving a sentence, but the 13th Amendment gets tricky with the word servitude:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Combining this declaration that “involuntary servitude” is acceptable when someone has been convicted of a crime, and that the 15th Amendment speaks only to a “previous condition of servitude,” it’s hard to argue for those currently serving a sentence.

And there are more attacks.

There are powerful interests working today to make it more it harder for you to vote.

Gerrymandering disenfranchises Americans. Draconian voter ID requirements disenfranchise Americans. Unjustifiable purges from the voter rolls disenfranchises Americans. Limited voting locations and hours disenfranchise Americans. Caucuses disenfranchise Americans.

But we’re fighting back.

For example, Governor McAuliffe of Virginia recently restored voting rights to more that 200,000 convicted felons in the state.

And other groups are popping up to make voting more fair. Lawrence Lessig’s Equal Votes is planning lawsuits to challenge states’ winner-take-all electoral allocation. The crux of their argument is that voters in winner-take-all states are diminished enfranchisement because their vote for a minority candidate is crippled simply for being for a minority candidate.

And you may have heard of the National Popular Vote Project.

And in case you’re looking for an off-the-wall alternative, I once wrote about the idea of Earned Electoral Allocation, but I don’t endorse it.

In case you didn’t know: I am not a lawyer.

But I am a strong advocate for voting! So if you are eligible, please register to vote!

Like this post? There are more like it, including Some Unsolicited Pragmatism For The Left, I’m Okay With Shaming You Into Voting, and Earned Electoral Allocation. I also tweet.
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