Tuesday, May 8, 2012

Sovereignty, Citizenship, and the Right to Vote

The Declaration of Independence sets forth the fundamental principles that this country stands for. All persons are created equal. All persons have certain inalienable rights. And all just powers of government are derived from the consent of the governed. From these premises it follows that every citizen has an equal right to vote. The law must not invade these sacred principles. Unfortunately a number of laws diminish, discourage, or disqualify citizens from voting. These laws violate the fundamental principles of democracy and individual sovereignty.
The Declaration states:
We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
The meaning of the Declaration is that every single individual is sovereign. Every individual has precisely the same amount of power over himself as every other individual. When individuals form societies, no individual has more "right to rule" over society than any other individual. This means that no citizen may be deprived of the right to vote, nor may any citizen's vote count for more than that of any other citizen.

The Declaration announces these transcendent principles - ideas that transcend time, place, and culture. The America of 1776 fell far short of those ideals, but the Revolutionary generation aspired to create a country that would, over time, move ever closer to making them a reality.

And so we have. Blacks became citizens in 1868 and won the constitutional right to vote in 1870, a right that was strengthened in 1965 with the enactment of the Voting Rights Act. Women gained the constitutional right to vote in 1920. Young adults were granted the franchise in 1971. Malapportionment was declared unconstitutional in 1963. Poll taxes, which directly prevented the poor from voting, were eliminated in 1964 at the federal level and in 1966 in the states.

But recently we have seen the enactment of laws and the adoption of policies whose purpose and effect is to diminish the equality of every citizen and every vote. There is a "war on voting," whose deeper meaning is that some citizens believe that they have more right to govern society than other citizens.

1. Voter identification requirements. Laws enacting onerous paperwork requirements for voters have a grossly disproportionate impact on the poor, elderly and disabled. If photo IDs are truly necessary, the government should provide them to every voter. Instead, the government penalizes persons who cannot, on their own, secure the requisite documentation.

2. Laws making it difficult to vote. Many states have enacted laws restricting early voting and absentee voting. This has a disproportionate impact on members of the working class who rarely have the discretion to come in to work late or leave early. In particular there is no justification for requiring people to vote on Tuesdays, which for most people is a day of work.

3. Gerrymandering. While malapportionment is illegal and is largely eliminated, political gerrymandering is still commonplace. A political party can effectively double its political power by "packing" members of the other party into a few legislative districts.

The underlying justification for all of these disenfranchisement schemes is that some people regard themselves as more entitled to political power than other people. An unconscious desire to discourage voting by certain groups is the real reason for photo identification laws. Why else are these laws enacted where there is no evidence of significant voter fraud? Laws making it difficult for the working class to vote reflects the view that society should be ruled by those with more property or higher income. And political gerrymandering simply reflects a lust for power by political parties, and denies the equal rights of the members of the opposite party.

These policies interfering with the right to vote violate our most cherished beliefs in the essential equality of every citizen.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

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