VOTING - KNOW YOUR RIGHTS, KNOW YOUR STATE

by Brian T. Lynch


What voting rights do you have in your state? 

This is an uncommon question.  We mostly assume that voting rights are contained somewhere in the US Constitution, but this isn’t true.  What the Federal Constitution does say, in several different amendments, is that states cannot use race, religion, gender, or the age of anyone 18 years old or older as a means to disqualify a US citizen from voting.  The actual right of suffrage, or the “franchise” as the election process is sometimes called, isn't a federal right at all. Elections and the voting process are the purviews of each sovereign state.  

There is a table below which lists the basic voting rights spelled out in our state constitutions.  You will see how voting rights differ significantly from one state to the next.  Before reviewing the table, however, it is important to acknowledge that most states honor a host of voting "rights" and privileges beyond what is articulated in the constitutions. These unarticulated voting rights are often expressed in state chapter laws or in the states voting procedures.  

Many of us have come to view voting rights as "unalienable", but they are not.   Unlike explicit constitutional language, laws passed by legislatures and voting procedures established by the state executive branches of government can be changed or reinterpreted in novel ways. When elections run smoothly no questions are raised.  But should something ever go unexpectedly wrong we need explicit state constitutional protections to redress our grievances. A discussion of each basic voting right contained in the table below will follow, along with a table that summarizes how common these rights are in America. 

Basic Voting Right Articulated in State Constitutions

RIGHT TO HAVE EVERY VOTE COUNTED –  The first voting right listed on the table above is the right to have every vote counted. California is the only state that has this protection in its constitution. This right may seem obvious or unnecessary at first,  but there are documented instances where absentee ballots have gone missing and uncounted.  One example took place back in 2008 in Santa Fe, New Mexico, when garbage bags believed to contain missing ballots were impounded by police but not opened because it was unclear if the missing ballots had to be counted.  This right, then, isn’t about hanging chads or undecipherable ballots, but about the obvious expectation that ballots properly cast are ballots properly counted, even if doing so doesn’t change who won.

GENERAL RIGHT OF SUFFRAGE -  Many state constitutions have high sounding language about how all power is derived by the people, but only nine states go on to guarantee the right of suffrage.  Suffrage, according to Wikipedia, is the civil right to vote gained through the democratic process, It is the political franchise, or simply the franchise, which is distinct from mere voting rights. A  right of suffrage forecloses the possibility of a state one day declaring a state of emergency and suspending elections.  This is a seemingly remote possibility, but not so remote that 9 states have included this protection in their constitution.

RIGHT TO FREE AND FAIR ELECTIONS – “In any State, the authority of the government can only derive from the will of the people as expressed in genuine, free and fair elections held at regular intervals on the basis of universal, equal and secret suffrage.”  So said the Inter-Parliamentary Council at its 154th session in Paris, 26 March 1994.  Here in the US, the State Department was actually very helpful in sharing their view on Free and Fair Elections with nations whose democracies are less advance than our own.  They provide the following guidelines:   

Free and fair elections require:

-- Universal suffrage for all eligible men and women to vote – democracies do not restrict this right from minorities, the disabled, or give it only to those who are literate or who own property

-- Freedom to register as a voter or run for public office.

-- Freedom of speech for candidates and political parties – democracies do not restrict candidates or political parties from criticizing the performance of the incumbent.
 -- Numerous opportunities for the electorate to receive objective information from a free press.
 -- Freedom to assemble for political rallies and campaigns.
 -- Rules that require party representatives to maintain a distance from polling places on election day – election officials, volunteer poll workers, and international monitors may assist voters with the voting process but not the voting choice.
 -- An impartial or balanced system of conducting elections and verifying election results – trained election officials must either be politically independent or those overseeing elections should be representative of the parties in the election.
 -- Accessible polling places, private voting space, secure ballot boxes, and transparent ballot counting.
 -- Secret ballots – voting by secret ballot ensures that an individual's choice of party or candidate cannot be used against him or her.
 -- Legal prohibitions against election fraud – enforceable laws must exist to prevent vote tampering (e.g. double counting, ghost voting).
 -- Recount and contestation procedures – legal mechanisms and processes to review election processes must be established to ensure that elections were conducted properly.

Many of our sovereign states could learn a lot from what the State Department has been preaching abroad. Only 44% of Americans can claim Free and Fair Elections as a constitutional protection in their state. It is ironic that the government Website from which the above information comes contains the following disclaimer: 

NOTE: The America.gov website is no longer being updated.

RIGHT TO VOTE BY BALLOT – There are many ways to vote if you think about it.  You can have a show of hands.  You can call for the yeas and nays and judge the outcome by the volume of shouts.  You can even draw straws.  Ballots, on the other hand, are unique to each voter, often secret and never shared by more than one voter. They are usually preprinted paper, but increasing voting is by electronic ballot.  This is a preprogrammed selection on an electronic device.  Hopefully, the results aren't also preprogrammed (see Blackboxvoting.org for much more on this scary thought)  Originally, voting was conducted using black or white balls, black being no and white being yes.  The voter would pick up the ball of his choice and drop it into a container (or ball lot?).  An important point about ballots is that they can be secret, unlike other methods.  Voting by ballot is a protection found in 26 of 50 state constitutions.

RIGHT TO SECRET VOTING -  The secrecy of our vote is among our most cherished rights, except it isn’t a right at all for more than 146 million American citizens, or at least it isn’t a constitutional right.  Secret voting is essential to assure that how we vote can never be used against us, yet only 21 states have the explicit constitutional language to guarantee secrecy in voting.  Several other states guarantee the right to vote in private, but that's not quite the same thing, is it?

RIGHT TO PUBLIC VOTE COUNTING – Stalin has been credited with saying, “The people who cast the votes decide nothing. The people who count the votes decide everything”.  This speaks volumes for both the right to have our vote counted and the necessity to have all vote-counting conducted in public view.  This is especially true when ballots are cast is secret or when they are electronically invisible.  Public vote counting is even more important as we rely more and more on private corporations to count our electronic ballots.  They claim that the software they use to count or votes are so proprietary that even state election officials are not allowed to peek.  Coupled with a trend among election officials to view with suspicion any voter who wants to observe the process, it is shocking that only 3 states constitutionally protect this essential right. 

FREQUENCY OF ELECTIONS –  It is one thing to guarantee that the government will hold elections and another thing to actually schedule them.  Ask anyone from a parliamentary democracy about this and how it can be manipulated to benefit incumbents.  Perhaps more to the point there should be a performance standard by which to judge whether we have a right to suffrage.  That standard for 15 states is some clear constitutional language about when, or how often elections are to be held.  While 100% of Americans know when to expect their elections, only 30% of them have this guarantee in writing. 

PRIVILEGE FROM ARREST AND EXCEPTIONS –  Imagine yourself heading out to perform your civic duty on election day.  You show up to vote and notice a police presence out front.  Maybe you have some outstanding parking tickets or a warrant for not paying child support.  Maybe you missed a municipal court date on some trivial matter.  Do you walk past the police and risk arrest, or do you give up your vote to right out of fear of being arrested?  This is the predicament that privilege from arrest is designed to resolve.  Unless your crimes are so felonious or treasonous, or unless you cause a public disturbance at the polling site, a  privilege from arrest while going to, coming from, or being at the polling place is constitutionally

guaranteed in 21 states.  It should be all 50 states because this scenario is all too common.  We should not see a police presence at or near the polling places.  We are all presumed innocent unless actually convicted of an offense.  No law enforcement authority should prevent anyone from exercising their right to vote.  The absence of this constitutional privilege can have a disproportional impact on minorities and the poor, yet only a third of our citizens are covered by this protection. 

RIGHT TO ACCESSIBLE POLLING PLACES -  “… polling places shall be easily accessible to all persons including disabled and elderly persons who are otherwise qualified to vote,” says the New Hampshire State Constitution.   Is this right necessary?  After all, don’t we have the Americans with Disabilities Act?  Yes, we do, but do the Americans with Disabilities Act strictly apply?  It’s an open question.  More broadly, do we have a right to expect adequate polling places and voting machines in every community without undoing commutation hardships or excessively long lines?  We could do better.  Only New Hampshire has this provision but something more broadly stated would be a good idea for every state constitution.

The next installment of this article will focus on the state constitutional questions of who is qualified to vote and who is excluded from voting.     


Here now is a summary of findings regarding state constitutional voter rights:


  

VOTING RIGHTS ARTICULATED IN US STATE CONSTITUTIONS
Number of States With This Right	Percent of US Population WithThis Right	GENERAL VOTING RIGHTS
1	9.7%	Right to Have Every Vote Counted
9	10.5%	General Right of Suffrage
21	44.0%	Right to Free and Fair Election
26	55.3%	Right to voting by ballot
21	46.7%	Right to secret vote
3	5.6%	Right to Public Vote Counting
15	32.6%	Frequency of Elections Right
21	36.5%	Privilege from Arrest during voting
21	36.5%	Privilege from Arrest Exceptions
2	1.6%	Right to an Accessible PollingPlace
Number of States With This Right	Percent of US Population WithThis Right	QUALIFICATIONS and EXCEPTIONS
49	99.6%	Must Be A US Citizen
46	91.2%	Must be Registered to vote
20	27.6%	State's Deployed Soldiers Can Vote
37	83.9%	Felony Exception
12	15.5%	Treason Exception
13	30.9%	Incarceration Exception
33	69.5%	Mental Capacity Exception
2	0.5%	Moral Conduct or other Exception
23	34.0%	Restoration from Exception
10	17.6%	No quartered solders
2	1.8%	Right to Appeal Voter Ineligibility