OUR VOTING RIGHTS - A State by State Analysis

by Brian T. Lynch, MSW

In an off-handed comment made after the 2012 election, President Barack Obama said we need to fix our election process.  This is a welcome suggestion.  Our election process is badly broken and has been for some time. Unfortunately, entering into the mid-term election of 2014 ever more states have erected barriers to voting from new voter id laws that make it harder for the elderly, youth, and minorities to vote, to reducing early voting days and ending same-day registration in states that allowed it. Nothing is more fundamental to a democracy than voting yet we are still not focusing on how this essential process is working for us.

Many of us don't think much about the fact that we do not have a federal voting system. We have 56 voting systems in the states, territories, and the District of Columbia. So the first question we should be asking ourselves, as citizens is this, "What are my voting rights in this state?"  

What voting rights do I have in my state? 

This is not a commonly asked question, but it should be.  Most of us believe voting rights are guaranteed under the federal constitution. This isn't exactly true.  The US Constitution contains several amendments to prevented states from disenfranchising certain categories of voters. For example, states cannot use race, religion, gender, or the age of anyone 18 or older as a means to disqualify a “citizen” from voting.  The actual right of suffrage, however, isn't a federal guarantee. This is up to the states.  Fixing our voting system will be a state by state effort.

In all our public discussions about elections, there is rarely a mention of how voting rights differ in various states. When you look at state constitutional language on voting rights, however, you quickly learn that many of the rights we take for granted, such as a right to secret ballots, are nowhere to be found in most state constitutions.  In fact, state constitutional voting rights differ widely from one state to the next.  

The wide variation in voting rights is not immediately evident because state laws, administrative regulation, and voting practices over time have created consensual frameworks for elections that appear similar from state to state.  For example, the vote-counting process is open for public view in most states, but only the constitutions of Louisiana, South Carolina and Virginia guarantee public vote counting.  California is the only state guaranteeing that votes will even be counted.  After candidates concede defeat based on vote projections, the states are not constitutionally obligated to finish counting every ballot.  

When elections run smoothly and no questions are raised, everyone consents to the will of the majority. This is true because in a representative democracy, elected officials are expected to represent everyone’s interests and not just the interests of those who voted for them. But when elections are very close and the process seems flawed, explicit constitutional language is essential to protect the democratic process and win over the consent of the minority.  Elections have consequences.  Flawed elections or overtly partisan representation can have dire consequences. Faith in our democracy begins with faith in our voting systems.

I am not a lawyer or constitution expert, but curiosity about state voting rights caused me to survey all fifty state constitutions and document the articulated rights in each.  Some results of this exercise are presented in the tables below.  Keep in mind that some constitutions have very archaic language or formats that make them difficult to interpret.  The information below represents my best effort to classify and document basic voting rights as articulated in state constitutions.  It is followed by a brief discussion for each of the categories presented below.

Basic Voting Right Articulated in Individual State Constitutions

DISCUSSION OF VOTING RIGHTS FOUND IN STATE CONSTITUTIONS

RIGHT TO HAVE EVERY VOTE COUNTED  –  As mentioned above, California is alone in this protection. This right may seem obvious or implied,  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.  

GENERAL RIGHT OF SUFFRAGE -  Many state constitutions have high sounding language about how all power is derived from the people, but only nine states explicitly guarantee the right of suffrage.  Suffrage is the right to hold elections in a democratic process. It is the political franchise itself, not the right of anyone individual. It says that elected officials do not have the power to suspend elections.  This seemingly essential right of the people is specifically named in only twelve state constitutions. The Massachusetts State Constitution, for example, specifically states that voting is a "privilege" and not a right.  

RIGHT TO FREE AND FAIR ELECTIONS – Twenty-four state constitutions have some language to this effect, a majority of states have no such guarantee.

“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 what "Free and Fair Elections" mean with nations whose democracies are less advance than our own.  They provided third-world countries with 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 states could learn a lot from the State Department.  Only 44% of Americans can claim that Free and Fair Elections are constitutionally protected by 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.”  

Even more ironic is the fact that when the Carter Center was once asked if they would monitor elections here they declined because we didn't meet the integrity standards they apply when considering third world country requests. 

RIGHT TO VOTE BY BALLOT – There are many ways to vote, of course.  You can have a show of hands or call for an assembly to shout yea or nay.  You can even draw straws.  In democratic elections we prefer ballots.  They are discrete and unique to each voter. They allow for the possibility of secret voting.  Until recently they were also made of paper, not electrons.  The decision to redefine “ballot” to include patterns of electrons stored on memory cards were never publicly debated. As with all voting processes in this country, we never got to vote on whether we wanted this change.  In the 27 states that guarantee to vote by ballot there is no constitutional language defining what is a ballot, so electronic voting cannot be easily challenged on constitutional grounds.

RIGHT TO SECRET VOTING -  The secrecy of our vote is among our most cherished rights, except it isn't a constitutional right for 146 million American's.  Secret voting prevents voter intimidation.  It assures us that how we vote can not be used against us later on.  Only 21 states 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 – Josef Stalin is credited with saying, “The people who cast the votes decide nothing. The people who count the votes decide everything”.  This speaks volumes for why all vote counting should be conducted in public view.  This is especially true when ballots are cast in secret on electronic storage devices. Ballot boxes were once transported in the chain of custody fashion by representatives from each party.  Now electronic vote totals are stored in storage devices collected by private couriers or sent directly over the internet, often to third party companies before being tabulated.  In many locations, the public is barred from observing how the votes are being counted. It is shocking to me that only four states constitutionally protect the right of the public to observe the vote-counting process.

FREQUENCY OF ELECTIONS –  It is one thing to guarantee that elections will be held and another to assure they are regularly scheduled.  Ask anyone from a parliamentary democracy about this and they can tell you how the timing of elections can be manipulated to benefit incumbents.  This isn't usually a problem here, but we should still have clear guidance on when elections will be held. Twenty-four states have clear constitutional language on this subject.  

PRIVILEGE FROM ARREST AND EXCEPTIONS –  Imagine heading out to vote knowing you have outstanding parking tickets.  You show up to vote and notice a police presence out front.  Maybe they even appear to be talking to some voters. Do you try to walk past them to vote or do you turn around and play it safe? 

This is the predicament that the "privilege from arrest" is designed to resolve.  No one should see a police presence at polling sites. It can feel intimidating, especially for minorities who may not share a high level of trust in law enforcement.  Just 21 states guarantee that you can't be arrested for minor offenses when you come out to vote. 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.  You might think the “Americans with Disabilities Act” covers this right, but voting doesn't always take place in buildings covered by the act.  More broadly speaking, guaranteed access to polling places also means adequate numbers of voting machines and voting locations that people can get to easily.  This has been a particular problem in many “battleground states” like  Florida where the lines to vote were huge in minority districts.  Only New Hampshire and Oklahoma provides this constitutional protection.

 Here below is a summary voter rights and the percentage of American citizens who are covered under those rights.

Correction: The table of Basic Voting Right Articulated in Individual State Constitutions was updated on 11/27/2006 along with the first half of the second graph to incorporate states omitted in the original data.