Why Voting Isn’t A “Privilege”

The Constitution refers to “the right to vote,” and courts and state constitutions agree: It belongs to all Americans.

The attack on voting rights isn’t coming solely from onerous new voter restrictions in various states and narrow Supreme Court rulings. It’s also in the way that we, as a society, talk about the right to vote.

In a new survey, the Pew Research Center found that fully 42 percent of those asked believe that “voting is a privilege that comes with responsibilities and can be limited if adult U.S. citizens don’t meet some requirements.” Although 78 percent of Democrats recognized that voting is not a “privilege” but a fundamental right, only 32 percent of Republicans agreed. There was also a clear racial divide, with minorities more likely to recognize the fundamental nature of the right to vote.

We can take some comfort that 57 percent of those surveyed acknowledged that voting is a right and not a privilege. But the 42 percent who disagreed represent a troublingly large minority.

The belief that voting is a “privilege” suggests that it’s somehow better to have fewer voters—which of course just means voters who agree with a certain ideology, with predictable racial and other demographic effects on who can more easily satisfy restrictive voting rules. The solution to the concern about so-called ignorant voters isn’t to shut them out of the process but to improve civics education. Moreover, this myopic view of democratic participation ignores the value of voting to our system of government, the lessons of history, and the proper understanding of our Constitution.

The Supreme Court explained as early as 1886 that voting is “regarded as a fundamental political right, because preservative of all rights.” Voting protects all other rights: we can’t enact legislation until we elect representatives to serve in legislatures. If we dislike government policies, then the way to fix them is to “throw the bums out” and vote in someone else.

To be sure, the Court in that long-ago case also said the right to vote is “not regarded strictly as a natural right, but as a privilege merely conceded by society, according to its will, under certain conditions.” But it followed that statement directly with the one noting that the right to vote is a “fundamental political right” [italics mine]. As the Court put it in 1964, “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” The Court reasserted the “fundamental nature” of the right to vote in Bush v. Gore, which essentially decided the 2000 presidential election—though the Court did not actually protect the right to vote robustly in that case.

History has favored greater expansion of the franchise as we’ve recognized the unfairness inherent in denying voting rights to certain groups. The argument was not that Black people, women, and 18 year-olds had jumped through the hoops necessary to “earn” the “privilege” of voting. It was that denying them the right to vote demeaned their dignity and made them unequal in our democratic republic. We rejected literacy tests and other voter registration requirements because of their discriminatory nature. The fight for easy access to the ballot is not over, but it shouldn’t be about who can clear unnecessary hurdles.

And even though the Constitution doesn’t confer the right to vote explicitly, it does mention and protect it several times—providing that states may not deny the right to vote because of someone’s racesexinability to pay a poll tax, or age. The Supreme Court’s case law has noted the importance of equality in access to the ballot. It’s true that the Court has construed that protection too narrowly, but nowhere has the Court endorsed a constitutional principle that suggests people must “earn” the “privilege” of voting. In addition, almost every state constitution contains a provision that explicitly confers the right to vote on the state’s citizens. There are, of course, limited voter qualifications rules, such as age, citizenship, and residency requirements. But once voters satisfy these minimal definitional rules, there should be no further restrictions on their access to the ballot. Yes, this proper understanding of our foundational right calls into question felon disenfranchisement rules and other voter restrictions, especially given their racist history and current disparate impacts.

In the Constitution and elsewhere, it’s called the right to vote, not the privilege to vote. But our rhetoric has not tracked this reality, leading to those alarming survey results. We cannot acquiesce to a debate that legitimizes calling the right to vote a mere “privilege.” It is not. To the extent that everyone does not accept this truth, we must reform civics education to better teach the history of the struggle for voting rights and its modern day implications.

Driving is a privilege. We license people after they pass a driving test. But there’s no parallel test to participate in our democracy—nor should there be. The Declaration of Independence says that a government derives its powers from the “consent of the governed.” That includes all of us.

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Joshua Douglas

is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com.