The U.S. Lacks What Every Democracy Needs

The history of voting in the United States shows the high costs of living with an old Constitution, unevenly enforced by a reluctant Supreme Court.

Unlike the constitutions of many other advanced democracies, the U.S. Constitution contains no affirmative right to vote. We have nothing like Section 3 of the Canadian Charter of Rights and Freedoms, providing that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein,” or like Article 38 of the Basic Law of the Federal Republic of Germany, which provides that when it comes to election of the Bundestag, “any person who has attained the age of 18 shall be entitled to vote.”

As we enter yet another fraught election season, it’s easy to miss that many of the problems we have with voting and elections in the United States can be traced to this fundamental constitutional defect. Our problems are only going to get worse until we get constitutional change.

The framers were skeptical of universal voting. The original U.S. Constitution provided for voting only for the House of Representatives, not for the Senate or the presidency, leaving voter qualifications for House elections to the states. Later amendments framed voting protections in the negative: Ifthere’s going to be an election, a state may not discriminate on the basis of race (15th Amendment), gender (19th Amendment) or status as an 18-to-20-year old (26th Amendment).

Most expansions of voting rights in the United States have come from constitutional amendments and congressional action, not from courts. In fact, in Bush v. Gore, to give a relatively recent example, the Supreme Court reiterated that the Constitution does not guarantee citizens the right to vote for president and confirmed that states may take back the power to appoint presidential electors directly in future elections.

Some people think erroneously of the Supreme Court as a broad protector of voting rights, expanding them well beyond the text of the Constitution. Consider first the case of Sgt. Herbert N. Carrington, one of the lucky few whose right to vote the court protected. In 1946 he enlisted in the Army at age 18 in his home state, Alabama. When he was transferred in 1962 to White Sands, N.M., he moved with his family to nearby El Paso. Yet when he tried to register to vote in the Republican Party primary in Texas, he was surprised to learn he was ineligible. The state Constitution prohibited military members who were not Texas residents before joining the service from voting there.