The Right to Vote: A Constitutional Myth or a Visit to the Judicial Twilight Zone?


     Of all the countries of the free world, the United States has consistently shown the least respect and appreciation for voting.  In a banner year, little more than half of the eligible voters might make their way to the polls.  In off year elections, as few as 20% of eligible voters may form the “majority” that determines the fate of an entire state or ultimately of the entire nation.  Combine an archaic electoral system with uncontrolled gerrymandering by majority parties common in so many states, add the Citizens United decision allowing unlimited contributions (with no supposed remunerations to donors) to candidates’ war chests and the result is by far the most dangerous threat we have ever had to the survival of our democracy.  While the average American voter seems to take the right to vote for granted, many state governments have taken subtle or even draconian steps to restrict voter registration, turnout, and actual voting in selected areas in order to favor preferred candidates.

     It was not too long ago that Florida Governor Scott and Kansas Secretary of State Kris Kobach both purposely violated federal law by illegally selectively removing potentially opposing voters from their states’ rolls before a federal election using illegal proof of citizenship standards.  Ken Blackwell, eventually admitted that while he was secretary of state of Ohio as well as election supervisor and head of his Republican state party during the 2004 presidential election he had arranged for the state to use his own company's voting machines.  He also admitted to releasing millions of Ohioans’ social security numbers on two separate occasions despite being warned of the “error” after the first time.  Unsurprisingly, both Kobach and Blackwell found themselves on President Trump’s now defunct Election “Integrity” Commission.  Apparently the commission was dissolved due to the fear of so many states as well as fellow commissioners that some of their colleagues might not be trusted with voters’ personal information.  Don’t be surprised if “super patriots” like Blackwell or Kobach are “drafted” by our current Homeland “Security” Department where they would be free to use secret information to intimidate and disenfranchise voters to their little hearts’ content.

     The vast majority of Americans would be shocked if told that nowhere in the United States Constitution is their basic right to vote, literally the cornerstone of democracy, specifically protected.  Ironically, through Constitutional amendments, various “minorities” are supposedly not permitted to be discriminated against, that is, treated differently than other voters.  However, the amendments are neutralized if the right itself of every U.S. citizen to vote in the first place, is not protected!  The sad truth is that the Founding Fathers did not intend for all citizens to vote, just landowners.  Furthermore, only landowners’ representatives or electoral college members were permitted to elect a president.  By the same token, nowhere in the Constitution does it mention protection of campaign contributions nor does it forbid the regulation of the contributions.  By most universal standards, when it comes to voting, our Constitution seems to be archaic and except for inadequate amendment, out of touch with reality.  Apparently, in this country, according to the majority of the last U.S. Supreme Court, instead of an actual voter franchise there is a custom that reluctantly permits people to vote if they are fortunate enough to live in an area represented by responsible state and local government officials.

     Ever since the 2000 presidential election, the lustre of our Founding Fathers’ “Grand Experiment” has been steadily tarnished as various destructive forces have been permitted and even encouraged to destroy the so called “integrity” of our election “system.”  From Governor Jeb Bush and his Supervisor of Elections, Katherine Harris deliberately cheating thousands of legitimate Florida voters, mostly African Americans, out of their vote by purposely transferring them without evidence to felon lists in 2000 to the U.S. Supreme Court ruling short circuiting a mandatory (by state law) Florida recount in the same election to the 2004 Ohio “Middleman Scheme” in which votes were apparently transferred from Ken Blackwell’s own company’s voting machines to intermediate servers and changed in an effort to “fix” the presidential election, to recent episodes of states removing voting machines from selected precincts, creating massive waiting lines designed to depress voter turnout in targeted areas, the attack on the American voter has been relentless.  And frankly, many of the arguments used by both defenders and especially  attackers of the “mythical” right to vote seem feeble or downright embarrassing.  Even in many law journals, lazy defenders of the right to vote casually contend that voting is so obviously the expression of opinion that it needs no defense as protected First Amendment speech, while attackers are reduced to seemingly circuitous arguments, some straight from the Theater of the Absurd, to refute the defenders’ contention.

      The importance of this debate should not be overlooked.  Remember, other than the First Amendment, there is no other potential Constitutional source which can protect a citizen’s right to vote!  Thus the two most famous types of attack against First Amendment protection of the right to vote are somehow based on cases of not permitting people to re-vote and of forced recusal of a voter due to conflict of interest.  In one case, a college professor committee member apparently inadvertently voted for the wrong candidate and was not permitted to “re-vote.”  Similarly, in the 2000 presidential election, due to a confusing and illegal ballot in Palm Beach, Florida, thousands of voters mistakenly voted for Pat Buchanan and were not permitted to re-vote.   Attackers claim in both instances that since the original vote was still upheld even though it supposedly did not represent a “true” opinion, that therefore voting and one’s opinion can never have anything at all to do with each other.  Defenders cite the actual reason given in both cases, that it is not appropriate to be able to re-vote after one already knows and may be influenced by the result of the original vote.

     In the case of Nevada Commission on Ethics v. Carrigan, a city council member was censured for failure to recuse himself in a case involving a conflict of interest.  Because the Supreme Court ruled the state statute requiring recusal valid, attackers of the right to vote claim that since the city council member was not permitted, in an isolated instance of a non public vote, to express his opinion by voting, that voting therefore never qualifies as speech.  If the Court had considered voting as speech, they contend, they would have allowed the vote!  Defenders of the right to vote point out that this not only defies the rules of logic, but that there is no such thing as a conflict of interest when it comes to a U.S. citizen voting in a public election.  Public candidates are never forbidden to vote for themselves... except, perhaps, in the Judicial Twilight Zone!

 No one can deny that In all of the above cases, people were trying to express their opinions by “voting!”  They were obviously trying to exercise their First Amendment right of expression, of speech, but like the person who wants to yell “FIRE!” in a crowded theater, their right was denied for cause!  The attackers of the right to vote are inadvertently admitting that voting is the attempt to express one's opinion and therefore “speech.”  Their whole argument is that if there are times that the Courts can legitimately deny someone a type of “speech” for cause, then they can somehow deny it permanently without cause.  Thus their underlying attack is really on the First Amendment itself, but because of the amendment’s sacrosanct status among both liberals and conservatives, the closest they can get to denying someone the right to free speech is to deny that person the right to vote.  There is a curious similarity here to the foolish Propositions 8 and 22 bills in California which by “taking away” the right of Gays to marry, inadvertently confirmed that they actually had that right already.

     Meanwhile, as Rod Serling turns over in his grave, attackers of the right to vote point to Justice Antonin Scalia’s angry and bizarre admonishment that “The act of voting symbolizes nothing” and “The fact that a non symbolic act [of voting] is the product of deeply held personal belief - does not transform action into First Amendment speech.”  Defenders of the right to vote argue that by his own admission, neither could the act of donating huge amounts of money to a candidate’s campaign transform the donor’s so called “deeply held personal belief” into First Amendment speech.  If so, would not a poll tax instead of a free vote magically transform a voter’s opinion into speech simply by his “putting his money where his mouth is?”  Even more troubling is the fact that if no type of voting can ever be an expression of one’s opinion, the unavoidable implication is that Mr. Scalia’s own “opinions” would automatically “symbolize nothing” as soon as each one became an official Supreme Court  “vote.” 

     Thus we have seen why protection of the right to vote is far more challenging than it seems at first glance.  We have seen that Constitutional protection of this right may be found only in the First Amendment.  The question that every citizen, Democrat, Republican or Independent must ask himself is why are so many powerful forces, including politicians, attorneys, prominent law professors, and even the U.S. Supreme Court, aligning themselves in such a massive effort to destroy our frail voter “franchise?”  What exactly are all these people so deathly afraid of and  why are so many members of the press so deathly afraid to ask them?  Meanwhile, even though I personally believe that it is absurd that the majority of the Court has gone out of its way to not only condone but to encourage a “play for pay” political system, their decision to grant First Amendment protection to political donations may not be completely unconstitutional.  Perhaps the defenders of the right to vote should concede the Citizens United decision but demand the same right of First Amendment protection for both voters and donors.  Perhaps someone needs to remind the Court that the First Amendment protects speech, including that of people, parrots, and even corporations, but that the Fourteenth Amendment fully protects only people, guaranteeing the very same equal protection to people who choose to donate their vote as it does to people who choose to donate their money to a candidate.

Allen Finkelstein, D.O., MEd. 12/20/17    (Re edited 1/4/18)