Right to Vote
Early in our nation, suffrage was limited to white, property-owning males. However that no longer exists due to the amendments to the Constitution and the Supreme Court decisions in Baker v. Carr, Reynolds v. Sims, Wesberry v. Sanders, Harper v. Virginia Board of Elections and Dunn v. Blumstein. I don’t see Bush v. Gore as being a retreat from that, but rather an extension of the Equal Protection Clause and “one man, one vote” holdings to the counting of ballots.
Article 1 §2 House is “chosen by the People”
Amendment 17 Senate is “chosen by the People”
Article 4 §4 “The United States shall guarantee to every state in this union a republican form of government”
Article 4 §2 “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”
Amendment 14 Clause 1 “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Amendment 14 Clause 2 “when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime …”
Amendment 15 “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Amendment 19 “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
Amendment 23 “The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.”
Amendment 24 “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.”
Amendment 25 “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”
In Baker v. Carr https://supreme.justia.com/cases/federal/us/369/186/, the Supreme Court held that the apportionment of federal districts based on a 1901 census that had not been updated since presented a justiciable case under the 14th Amendment’s Equal Protection Clause.
In Reynolds v Sims https://supreme.justia.com/cases/federal/us/377/533/ the Supreme Court said “Undeniably, the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal, elections. A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear. It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote, Ex parte Yarbrough, 110 U. S. 651, and to have their votes counted, United States v. Mosley, 238 U. S. 383. In Mosley, the Court stated that it is "as equally unquestionable that the right to have one's vote counted is as open to protection . . . as the right to put a ballot in a box." 238 U.S. Page 377 U. S. 555 at 238 U. S. 386. The right to vote can neither be denied outright, Guinn v. United States, 238 U. S. 347, Lane v. Wilson, 307 U. S. 268, nor destroyed by alteration of ballots, see United States v. Classic, 313 U. S. 299, 313 U. S. 315, nor diluted by ballot box stuffing, Ex parte Siebold, 100 U. S. 371, United States v. Saylor, 322 U. S. 385. As the Court stated in Classic, "Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted. . . ." https://supreme.justia.com/cases/federal/us/377/533/
The Court said “The concept of 'we the people' under the Constitution visualizes no preferred class of voters, but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions." Continuing, we stated that "there is no indication in the Constitution that homesite or occupation affords a permissible basis for distinguishing between qualified voters within the State."And, finally, we concluded: "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing -- one person, one vote.”
In Wesberry v. Sanders, the Supreme Court said “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right. In urging the people to adopt the Constitution, Madison said in No. 57 of The Federalist: "Who are to be the electors of the Federal Representatives? Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States." https://supreme.justia.com/cases/federal/us/376/1/
In Bush v. Gore, https://supreme.justia.com/cases/federal/us/531/98, the Court noted that while states could constitutionally choose a variety of different ways to choose their state’s Presidential electors, once they decided on the ballot box, the Equal Protection Clause extended to counties’ methods of counting disputed ballots “History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” “The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.”
What did the phrase “Republican form of government” mean to our founders? “The guarantee of republican government was designed to provide a national remedy for domestic insurrection threatening the state governments and to prevent the rise of a monarchy, about which there was some talk at the time. James Madison, the author of many of the essays included in The Federalist Papers (1787–88), put forward a sophisticated concept of republican government. He explained in Number 10 that a republic must be contrasted with a democracy. In the eighteenth century the term "democracy" meant what is now called a pure or direct democracy, wherein legislation is made by a primary assembly of citizens, as existed in several rural Swiss cantons and in New England towns. In a pure democracy, Madison argued, there is no check on the majority to protect the weaker party or individuals and therefore such democracies "have ever been spectacles of turbulence and contention," where rights of personal security and property are always in jeopardy.
By a republic, Madison meant a system in which representatives are chosen by the citizens to exercise the powers of government. In Number 39 of The Federalist Papers, he returned to this theme, saying that a republic "is a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." Generally, such leaders as Madison and John Adams believed that republicanism rests on the foundation of a balanced constitution, involving a Separation of Powers and checks and balances.”
The Supreme Court based its landmark voting rights decisions on the 14th Amendment’s Equal Protection Clause, rather than the “guaranty of a republican form of government” in Article 4.
Prepared by: Lucien Wulsin
Dated: 9/10/20