Voting Rights — Amending the Constitution

The Non-existent “Right to Vote” for President

The list of stubborn misconceptions about so-called Constitutional rights, and powers of the government people mistakenly believe are expressly permitted to the government, is rather long.  We have short-handed the Constitution into something resembling the Pledge of Allegiance (likely because it is an easier and shorter read).  But of the most persistent national myths is that “every citizen has the right to vote in an election for the US President.”

How can we “prove a negative” — that is, that some presumed liberty is not in fact a Constitutional right?  We can look at the text of the Constitution and point out that it contains no provision allowing the right to vote (don’t worry, note is taken of the XV, XIX, XXIV and XXVI Amendments — and we will demonstrate that despite the clear language, they do not grant a right to vote).  Further, we can look to the language of the Constitution, for example, Article 2 Section 1:

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…

So, it is not the right of a citizen, but rather a process regulated and determined by each State’s legislature which decides.  To be certain, the opinion of the majority in the landmark case of Bush v. Gore states:

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, § 1.

So, what about those Amendments XV, XIX, XXIV and XXVI?  These Amendments create guarantees that where citizens do have such a right (for example to elect Members of the House of Representatives, and where a State in fact grants its citizens a right to vote for electors for the Presidency), such a right can not be denied on the basis of race, previous servitude, sex, poll tax, or age (over 18).

What about felons?  It depends — equal protection does not apply to felons.  Their rights exist as a State by State exercise of discretion.


Currently, 5.85 million Americans are prohibited from voting due to laws that disenfranchise citizens convicted of felony offenses. Only two states–Maine and Vermont–do not restrict the voting rights of anyone with a felony.  75% of disenfranchised voters live in their communities, either under probation or parole supervision or having completed their sentence. An estimated 2.6 million people are disenfranchised in states that restrict voting rights even after completion of sentence.Public opinion surveys report that 8 in 10 U.S. residents support voting rights for citizens who have completed their sentence, and nearly two-thirds support voting rights for those on probation or parole. Since 1997, 23 states have modified laws to expand voter eligibility for ex-offenders and as a result an estimated 800,000 citizens regained the right to vote from 1997 to 2010.

Constitutional Amendment Process

The authority to amend the Constitution of the United States is derived from Article V of the Constitution.  Article V:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval.

The proposed amendment is submitted to the States for their consideration by sending a letter of notification to each Governor along with informational material. The Governors then formally submit the amendment to their State legislatures or the state calls for a convention, depending on what Congress has specified. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends an original or certified copy of the State action.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).

Amendments Extending the Right to Vote

AMENDMENT XV:  Passed by Congress February 26, 1869. Ratified February 3, 1870.

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.

AMENDMENT XIX:  Passed by Congress June 4, 1919. Ratified August 18, 1920.

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.

AMENDMENT XXIV:  Passed by Congress August 27, 1962. Ratified January 23, 1964.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

AMENDMENT XXVI:  Passed by Congress March 23, 1971. Ratified July 1, 1971.

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.


Reynolds v. Sims (Summary) (377 U.S. 533 (1964)

Facts of the case:  In 1961, voters from Jefferson County, Alabama, challenged the apportionment of the state legislature. The Alabama Constitution prescribed that each county was entitled to at least one representative and that there were to be as many senatorial districts as there were senators. Population variance ratios of as great as 41-to-1 existed in the Senate.

Question:  Did Alabama’s apportionment scheme violate the Fourteenth Amendment’s Equal Protection Clause by mandating at least one representative per county and creating as many senatorial districts as there were senators, regardless of population variances?

Conclusion:  In an 8-to-1 decision, the Court held that Equal Protection Clause demanded “no less than substantially equal state legislative representation for all citizens….” Noting that the right to direct representation was “a bedrock of our political system,” the Court held that both houses of bicameral state legislatures had to be apportioned on a population basis. States were required to “honest and good faith” efforts to construct districts as nearly of equal population as practicable.

Crawford v. Marion County Election Board (553 US 181 (2008))

Facts of the case:  In 2005, the Indiana Legislature passed a law requiring all voters who cast a ballot in person to present a photo ID issued by the United States or the State of Indiana. Plaintiffs including the local Democratic Party and interest groups representing minority and elderly citizens argued that the law constituted an undue burden on the right to vote. At trial, the plaintiffs did not produce any witnesses who claimed they would be unable to meet the law’s requirements.

Question:  Does a law that requires voters to present either a state or federal photo identification unduly burden citizens’ right to vote?

Conclusion:  By a vote of 6 to 3, the Court upheld the law, concluding that the photo I.D. requirement was closely related to Indiana’s legitimate state interests in preventing voter fraud. The slight burden the law imposed on voters’ rights did not outweigh these interests, which the Court characterized as “neutral and nondiscriminatory.” There was no majority opinion. The Court’s decision included concurring opinions written by Justices John Paul Stevens and Antonin Scalia. Justices David Souter and Stephen Breyer each wrote dissenting opinions. Justice Ruth Bader Ginsburg joined Justice Souter’s dissent.