Framers fail: Voting is a basic right but it’s not guaranteed in Constitution

From today’s USA Today:

The Founders unwisely gave states control of the vote. The upshot is we’re headed for separate democracies: restrictive red ones, expansive blue ones.

In 1835, William Fogg, an African American citizen of Pennsylvania, filed America’s first voting rights lawsuit. He charged that election officials had violated the state’s color-blind constitution by barring him from voting because he looked black. The Pennsylvania Supreme Court rejected Fogg’s claim in 1837 by writing black people out of American democracy. The court ignored the state constitution and found that “no coloured race was party to our social compact,” and that Pennsylvania should not “raise this depressed race to the level of the white one.”

A year later, Pennsylvania adopted a new constitution which followed the trend in most nineteenth century states by excluding people of color from the ballot. In 1800, only five of 16 states mandated “white only” voting. By 1860, 28 of 33 states, accounting for about 97 percent of the nation’s free black population, had adopted such racially restrictive suffrage. All states denied women from the franchise. Backers of voting by white men only claimed without evidence that racial and gender exclusion guarded against voter fraud by preventing unscrupulous politicians from buying the votes of allegedly dependent women and ignorant blacks.

Fogg and other excluded voters had no recourse to the federal courts because the framer’s great mistake was their failure to include a right to vote in the Constitution or the Bill of Rights. Instead they defaulted voting rights to the individual states. Later generations of lawmakers compounded this mistake by negatively framing amendments on voting rights, stipulating that states cannot deny the franchise on account of race, sex, or age of 18 years and older.

Lacking a constitutional guarantee, the vote has been embattled throughout American history. Voting rights have both expanded and contracted over time, with no guarantee of universal access to the ballot.

The right to vote remains imperiled today. Players in the struggle for the vote have changed over time, but the arguments remain familiar, and the stakes remain high. Primarily in Republican red states, politicians have rolled out the old charge of voter fraud. Today’s allegations focus not on vote-buying but on such charges as voter impersonation at the polls, repeat voting in more than one state, and voting by non-citizens.

Read the complete article here.