The following is the first installment in a TPM series, Not Safe At Home. The series takes a look at fixes the next Congress and President should consider to how our democracy works. This essay is part of TPM Cafe, TPM’s home for opinion and news analysis.
Throughout our nation’s history, black Americans have faced systematic disenfranchisement when it comes to the vote. Despite constitutional amendments that sought to protect voting rights, it is clear that the Constitution does not go far enough to ensuring that all Americans have access to the polls.
It is time to amend the Constitution to fix this problem. This amendment must guarantee to every American the right to vote. It should also resurrect an old idea, embodied in the 14th Amendment, and reduce the number of members of Congress apportioned to states that keep citizens from the polls.
A 28th Amendment to the U.S. Constitution should provide: “All citizens the age of 18 and over are guaranteed the right to vote. Each state shall guarantee the right to vote.” This language incorporates the spirit of prior amendments that aimed to open the door to black American voters and then goes further. It bars future voter suppression schemes. A new 28th Amendment would make the states responsible for ensuring the right to vote, turning access to the ballot box into the presumed right of every adult American.
Across a century, between 1870 and 1971, four amendments have addressed access to the ballot, but none have gone far enough. Each was intended to expand the body politic and limit the states’ capacity to suppress votes. These amendments defined what states may not do, but did not expressly guarantee any citizen the vote. The 15th amendment prohibited the states from relying upon “race, color, or previous condition of servitude” when determining who can vote but did not bar other forms of disenfranchisement. No state can consider “sex” when legislating access to the ballot pursuant to 1920’s 19th amendment. But women are not guaranteed access to the ballot box. In 1964, the 24th Amendment prohibited states from using poll taxes to keep citizens from voting. Since 1971, age for those “eighteen years of age or older,” may not be a basis for denying the vote, by the 26th amendment. Still many millions of Americans — including non-whites, women, and those who are 18 and older — cannot vote.
Voting rights in America have been persistently shaped by racism. Much of U.S. history can be told as one long struggle over the right to vote. Though the term “voter suppression” was not in use in past centuries, it was as much a part of our political culture in the 18th century as it is in the 21st.
Very early in the history of the new republic, free black Americans faced the loss of voting rights. In the wake of the American Revolution, former slaves voted in many states. In Maryland, for example, they went to the polls until 1802, when the state for the first time made “white” a pre-requisite for voting. In New York, it was 1821 when lawmakers increased the property qualification when it came to black voters, while white men were subject to no such limitation. In 1838, Pennsylvania’s constitutional convention limited the vote to “white freemen.” The African-American “appeal of 40,000 citizens threatened with disenfranchisement” failed to change white lawmakers’ minds.
In the Reconstruction era that followed the Civil War, black Americans, millions of them formerly enslaved, joined the body politic as voting citizens of the United States. Still, after a brief period of significant black political power, white officials conspired to keep them from the polls. Grandfather clauses made voting dependent upon the status of one’s forebears. Literacy and understanding requirements let local officials administer tests unevenly and with ill-intent. All-white primaries kept black voters out of party deliberations over who would appear on the ballot. Poll taxes ensured that even those who could surmount other hurdles would miss the chance to vote because of dollars and cents. Add to these obstacles intimidation and violence. The result was a 75-year long era during which the votes of black Americans in the southern states, where the vast majority had long lived, were brutally suppressed.
The 1965 Voting Rights Act was signed into law after years of sustained and risky direct action by black Americans in places like Selma, Alabama, where the state had long kept them from the polls. The decades that followed were an unprecedented era of democracy in the U.S. It did not, however, last. In the early 21st century, Republican state officials initiated a new generation of voter suppression techniques: voter ID, purging of rolls, shuttering of polling places, and the disregard of absentee ballots. In its 2014 decision in Shelby County v. Holder, the U.S. Supreme Court annulled the Voting Rights Act requirement that states with a history of suppressing non-white voters get prior Justice Department approval before changing their voting rules.
It is time to amend the Constitution’s voting rights provisions and transform limits on the states into positive guarantees to citizens. It is time to amend phrasing that falls short of making promises to members of the body politic.
Consider the difference between an amendment that prohibits the states from barring people from voting because of race and one that guarantees the vote to all adult Americans. The former leaves states at liberty to shut black voters out using ostensibly non-racial qualifications, while the latter demands that they be included. Similarly, rather than barring states from relying upon sex when determining who can vote, it would guarantee to all women the vote. What if all Americans 18 and older were promised access to the polls? These changes would initiate a powerful shift, one that transforms voting from a privilege meted out by the states into a guarantee to all American citizens.
There is, of course, reason to suspect that some states, even in the face of a Constitution that guaranteed the vote, would curtail that exercise of political power. This prospect suggests that it is also time to use a little considered provision in section 2 of the 14th Amendment. It provides that when any state deprives its citizens of voting rights, it will be penalized, automatically, by the proportional loss of that state’s members of Congress. While this section was originally limited to male citizens over twenty-one, these details have been abrogated by subsequent constitutional amendments.
This penalty is a harsh one that would reduce the political power of any state that engages in voter suppression. Take the example of Georgia where, in 2017 alone, the secretary of state cancelled the registration of 670,000 voters. What sort of penalty should the state pay for depriving those individuals — who total nearly 6.5% of the state’s overall population and an even higher percentage of eligible voters — access to the polls? The 14th Amendment provides that the cost to be paid for voter suppression must be proportional — the percentage of citizens disenfranchised determines the reduction of representation. That formula demands that Georgia should lose at a minimum 6.5% of its 14 members of Congress, the rough equivalent of one representative. Texas might lose more.
The persistence of voter suppression today suggests that the Constitution is not up to the task of guaranteeing the right to vote. On the horizon is an opportunity to adopt an amendment that would guarantee the vote to all adult Americans. This may be a far-off remedy, but imposing the terms of section 2 of the 14th Amendment need not be. Though never enforced, the language says the penalty is supposed to be automatic — “shall be reduced.” Already at our disposal is the authority to penalize those states that suppress voting rights. Until today, states have paid too small a price for keeping Americans from polls. It is time to turn up the heat. Let’s take what we know about the numbers and demand that states pay for keeping citizens from the polls with their power in Congress, and by extension the electoral college, since the number of electors there is simply the state’s number of senators and representatives. It was a good idea, one added to the Constitution in 1868, whose time has come.
