In the wake of the slow moving but powerful blue tide that ushered in a Democratic-controlled Senate, all eyes were on Georgia and the unmatched skill of Stacey Abrams. Not hours had passed before House Speaker Nancy Pelosi vowed to put voting rights on the agenda.
Since then, Congressional Democrats have introduced H.R.1. The For the People Act, a sweeping reform bill meant to modernize and democratize our elections, with a vote on the bill planned for the first week of March. This sprawling 700-page document, covering everything from voter registration and vote-by-mail to ballot security and campaign finance reform, has drawn the ire of Republicans charging legislative overreach.
If it appears that way, it is only because we operate under a faulty understanding of voting rights, one which focuses on the prevention of discrimination rather than the promotion of an affirmative right to vote. It’s time to finally rethink that. If we do, H.R.1 will seem more like a good start than a radical measure.
We tend to think of voting rights in terms that political philosophers would characterize as a negative liberty—as freedom from discrimination, from obstruction, from intimidation. This is no surprise given how voting rights have evolved in the United States. There is no constitutional guarantee of the right to vote, and the Bill of Rights is silent on the matter. This, of course, is by design.
The founders had no intention of extending the franchise beyond the wealthy white men who held power at the time. As increasing wealth and access to property made this restriction on the franchise moot, states began removing tax and property qualifications for white men, but made no substantive assurances of an affirmative right to vote. Subsequent acts enfranchised other segments of the population—Black men through the 15th Amendment and later white and Black women through the 19th—but again offered no guarantee of the right to vote, only the right to be free from discrimination in voting. This has now been entrenched through decades of litigation linking voting rights with the Equal Protection Clause of the Constitution. And this is effectively what the Voting Rights Act of 1965 and its subsequent amendments codified.
The problem with conceiving of voting rights in terms of negative liberty is that it limits us to a defensive strategy, litigating egregious cases in a piecemeal way and targeting only those things that would prevent individuals from voting. Understanding voting rights in terms of positive liberty would require attention to not just the things that prevent citizens from voting, but also to those that empower them to do so.
A truly progressive agenda would treat voting rights like economic rights, which also are not guaranteed in the Constitution, but have been earned through decades of struggle. Various groups mobilized throughout our history to demand that the government not just protect us from harm, but also provide the resources necessary to secure our well-being. (Think of the labor movement or the fight for entitlements such as Social Security and Medicare.) So, too, must we demand that our government support citizens in exercising the franchise, anticipating and meeting the needs of voters at every step from registration to casting a ballot.
This was the genius of Stacey Abrams and her network of advocacy organizations. Their work began with voter education and extended to mobilization, identifying the pitfalls that get between voters’ desire to vote and their ability to do so. In 2020, given the challenges of the pandemic and the subsequent and rapid shift to vote by mail, this was especially crucial. Ensuring that voters understood the different steps took outreach and education. Abrams’ success built on the work of previous generations who had laid a solid foundation for protecting voting rights in Georgia. But Abrams’ great achievement was understanding that it was not enough to guard against discrimination and that in fact our laissez faire approach to elections disadvantages all but the most well informed and politically connected. Hers was a more proactive approach that addressed the obstacles, both malicious and benign, that stand in the way of the right to vote with a systematic strategy to help citizens overcome them.
This is what we need to demand now, not of voting rights activists, but of our government.
Today, the work of voter education and mobilization falls either to private advocacy organizations or to political campaigns. This presents serious challenges since advocacy groups tend to be limited in their reach, and campaigns have incentives to focus only very narrowly on voters who they believe will be favorable to their candidate. Historically there have been many other organizations involved in these efforts including trade unions, civic organizations, and religious groups. But as these institutions have atrophied or withdrawn from their roles in civil society, a tremendous gap is left behind in terms of the support voters may receive.
Those who have called for a constitutional amendment to secure the right to vote are on the right track. But the truth is, we do not need a constitutional amendment to make demands on our government. The most substantial advances of the 20th century including welfare policy, education policy, and health care policy, have come not through the Constitution, but through advocacy. This advocacy has to start with a shift in what we think is appropriate and worthwhile to demand.
H.R. 1 is a step in this direction. And messy as it may be, it brings us closer to achieving an affirmative right to vote in the United States. Many of its provisions still focus on the prevention of discrimination. But others move past this issue to introduce automatic voter registration, secure mail-in voting, and many election administration improvements that would streamline in-person voting. Such provisions remove known obstacles to participation and simplify what can often be a confusing multi-stage multi-deadline time-consuming process for voters.
But more can still be done. Our government can and should require all employers to provide time off for employees to vote, provide sample ballots ahead of time so that voters know what will be asked of them and have time to gather the necessary information and establish an independent non-partisan agency to contact voters in advance to answer questions and provide support.
It is time to shift the frame. While the prevention of discrimination is worthy and noble, it cannot limit our political imagination, especially with so many increasing challenges to voting access by those claiming irregularities and fraud. Right now, our best defense is a more robust offense.