Here in the United States, we point with pride to our Constitution as one of the most remarkable charters of government in the history of humanity. Indeed, the Framers devised an ingenious system of self-government that incorporates democratic ideals into a republican structure, guaranteeing the rights of the minority while simultaneously guaranteeing the rights of all from the appetite of a voracious government.
The Framers’ Fear of the People
The Framers, though, feared the ability of demagogues to sway public opinion to radical points of view. For that reason, the only popular election provided in the Constitution was for US Representatives, and that right was extended to those who were granted the right, by their States, to vote for the lower house of the state’s legislature. Senators were to be appointed by the States’ legislatures, and the President was to be selected by the Electoral College, in which each State was represented by a number of electors, selected as the Legislature saw fit, equal to its total of US Representatives and Senators.
Thus, not only didn’t the Constitution originally establish the popular election of the President, it doesn’t even require citizen participation in the selection of the Electors! Furthermore, the Constitution never requires states to extend the right to vote to all adults over age 18, as is popularly assumed. Instead, it limits the States’ ability to restrict the vote. Let’s look at how the Constitution treats this most cherished of our rights:
Popular Election of Members of Congress
Article 1 of the US Constitution establishes that US Representatives are elected by the people, and establishes that anyone qualified to vote for members of a State’s larger legislative body, usually called the Assembly, can vote for members of the US House. It doesn’t set forth the requirements of electors, though – it leaves that to the states.
The election of Senators, also established by Article 1, but modified by the 17th Amendment, is identical, although the Constitutional history is more complex. Originally, the selection of Senators was specifically the responsibility of each State legislature, but vacancies became common and some states went without full representation in the Senate for years at a time. The 17th Amendment, ratified in 1913, provided for the popular election of Senators, and also provided that the qualifications of electors for Senator be identical to those for electors of US Representatives – that is, anyone permitted by the State to vote for a member of the Assembly could vote for US Senator.
Indirect Election of the President
The Constitution leaves it to each State to determine how its members of the Electoral College are chosen. No right is established for citizens to vote for Electors, though: those rights are granted by the States. In the very first Presidential election, in 1789, only two States – Maryland and Pennsylvania – had instituted direct election of Presidential electors; the Electors from the other States were selected by their legislatures. By 1824, most states had established some form of direct vote for Electors, with only 6 legislatures still appointing Presidential Electors. South Carolina continued to appoint its Presidential electors until it seceded from the Union in 1860; of the other states, Delaware was the last to switch from legislative appointment of Electors to direct election, in 1832.
Constitutional Amendments Affecting Voting Rights
While the original Constitution refers to voting rights only three times, the Amendment process clarifies them six times, in each case recognizing that although the national government could set broad limitations on what restrictions the States could impose on voting rights, the States still had the final word.
The 14th Amendment was the first to affect voting rights, by extending citizenship to all persons born or naturalized in the US, and requiring that due process of law be observed when depriving any citizen of the rights and privileges of citizenship, like voting. The 14th Amendment went on to acknowledge that states can deprive adult males of the right to vote, but promised to reduce the representation in the US House of any State that did so.
The 15th Amendment, ratified in 1870, clarified voting rights further, prohibiting States from limiting the right to vote by virtue of “. . . race, color or previous condition of servitude.” Thus, while States could restrict the right to vote, they couldn’t do so on those grounds. Fifty years later, the 19th Amendment prohibited the States from denying the vote to women. Note that by this time, about half the States had already extended full or partial voting rights to women, further reinforcing the idea that voting rights are determined by the states, subject only to the constraints of the US Constitution.
Voting rights were further addressed by the Constitution in the 23rd, 24th and 26th Amendments. The first gave three Electoral College votes to the District of Columbia, but gave the Congress, as the District’s governing authority, the responsibility for determining who could vote for those electors. The 24th Amendment, again recognizing that the states held the authority to determine their own electorates within Constitutional guidelines, banned the use of taxpayer status to prevent poor people (mostly black) from voting in elections for members of Congress, or for electors for President and Vice President. The 26th Amendment, ratified in 1971, reduced the minimum voting age from 21 to 18. Again, though, it did so not by extending the right to vote, but by limiting the States’ ability to restrict the right to vote.
There’s really no doubt that the right to vote isn’t granted or guaranteed by the Constitution – even the US Supreme Court confirms it, most recently in Bush v Gore (2000). The fact remains, though, that it’s a de facto right. While this may appear to be a serious problem to some, the fact that the right to vote under State constitutions thrived over the years is testimony that while not guaranteed, the right to vote in the United States is secure.