Our Voting System Needs A New Constitutional Foundation

 Congressman Jesse L. Jackson, Jr.

"The individual citizen has no federal constitutional right to vote for electors for the President of the United States." (Bush v. Gore, 531 U.S. 98, 104 (2000)

"In the eyes of the [Supreme] Court, democracy is rooted not in the right of the American people to vote and govern but in a set of state-based institutional arrangements for selecting leaders." ( Overruling Democracy - The Supreme Court v. The American People, By Jamin B. Raskin, p. 7)

"Amazingly, the government of the United States conducts and provides no official count of the vote for president." (Overruling Democracy - The Supreme Court vs. The American People, by Jamin B. Raskin, p. 66)

"Thanks to the long and peculiar way in which suffrage evolved in the United States, the U. S. Constitution contains no affirmative right to vote for American citizens. That is likely the most important single gap in our Constitution, and it ought to be remedied as soon as possible."  (Alexander Keyssar, Matthew W. Stirling, Jr., Professor of History and Social Policy at Harvard University's John F. Kennedy School of Government. His books include The Right to Vote: The Contested History of Democracy in the United States.)

Don't be confused or misled.  Today's objection is not about an ELECTION RESULT, it's about an ELECTION SYSTEM that's broken and needs fixing.

Today you're hearing the facts about voter irregularities in Ohio.  In 2000 you saw a similar mess in Florida.  There were serious voting problems in other states - for example, New Mexico, Nevada and Florida again. As we try to spread democracy to Iraq, Afghanistan and elsewhere, it might be wise, first, to look in the mirror; to take a serious look at our own house; and to analyze our own democracy. 

What's wrong with our democracy?  What's wrong with our voting system?  State-after-state, year-after-year, why do we keep on having these problems.

The fundamental reason is this:  most Americans and many in this body will find it shocking and hard to believe, but we have these problems because AMERICANS DON'T HAVE THE RIGHT TO VOTE IN THEIR CONSTITUTION!

In 2000, the U.S. Supreme Court in Bush v. Gore said in very plain language, "the INDIVIDUAL CITIZEN has no federal constitutional right to vote for electors for the President of the United States." 

You say, "Congressman, I'm a registered voter and every time there's an election I'm entitled to vote - and I vote.  What do you mean I don't have a `right to vote'?"

I mean as an American you don't have a citizenship right to vote.  Voting in the United States is a "state right" not a "citizenship right." 

We keep on having these problems because our voting system is built on the constitutional foundation of "states' rights" - 50 states, 3,067 counties and 13,000 different election jurisdictions, ALL SEPARATE AND UNEQUAL.

If you're an ex-felon in Illinois you can register and vote.  If you're an ex-felon in eleven states, mostly in the South, you're barred from voting for life.  There are nearly 5 million ex-felons who have paid their debt to society but are prohibited from ever voting again - including 1.5 million African American males.  But in Maine and Vermont you can vote even if you're in jail.  Like I said, we have a "states rights" separate and unequal voting system. 

You ask, "What's the difference between a citizenship right and a state right?"

The First Amendment contains individual citizenship rights that go with you from state to state (that is, they are the same wherever you are in the U.S.); and they are protected and enforced by the federal government.  You have equal protection under the law by the executive, legislative and judicial branches of the federal government.  Therefore, as a result of the First Amendment, every American citizen has an individual right to free speech, freedom of assembly, and religious freedom (or to choose no religion at all), regardless of which state you're in - individual rights that are protected by the federal government.  You don't have such a right when it comes to voting!

A state right is NOT an American citizenship right, but a right defined and protected by each state - and limited to that state.  Therefore, when it comes to voting, each state, county and election jurisdiction is different.

One-hundred-and-eight of the 119 nations in the world that elect their public officials in some democratic manner have the right to vote in their Constitution - including the Afghan Constitution and the interim document in Iraq.  The United States is one of the 11 that don't! 

The Bible says if you build a house on sand, when it rains, the winds blow and the storms come it will not stand.  Our voting system is built on the sand of "states' rights." 

That's why every four years when the entire nation is focused on a presidential election, and the rain of politics, the winds of partisanship, and the storms of campaigning come, our democratic house cannot stand the unitary test of voting fairness - and it has come close to collapsing in 2000 and 2004. 

The American people are gradually losing confidence in the credibility, fairness, effectiveness and efficiency of our voting system. 

We cannot export our current voting system or our form of democracy to other nations because our "separate and unequal" voting system, and our concept of an Electoral College, do not reflect the best of a representative democracy. 

We need to build our democracy and our voting system on a rock, the rock of adding a Voting Rights Amendment to the U.S. Constitution that applies to all states and all citizens. 

We need to provide the American people with a citizenship right to vote and provide Congress with the authority to craft a unitary voting system that is inclusive of all Americans and guarantees that all votes will be counted in a complete, fair and efficient manner.