This is the second of five articles by Professor Brian Glassman on the 2020 General Election. This week’s theme is “From Policy to Action: the Constitutional and Statutory Foundations for Your Voice Being Heard.”
You can read more about Professor Glassman below.
Important Dates to Track:
10/5/20 – Deadline for registering to vote in Georgia for the November 3, 2020 General Election. For additional voting information, go to https://gcvoters.org/vote/
From Policy to Action: the Constitutional and Statutory Foundations for Your Voice Being Heard.
One person, one vote.
The phrase is deceptively simple, and politically appealing. But where does it come from?
Not from the Constitution. And not from its amendments (the principle was first articulated in the United States in the 1964 Supreme Court case Reynolds v. Sims).
Instead, the Constitution describes a complex system in which 1) sometimes the popular vote determines outcomes (the U.S. House of Representatives), 2) at other times that vote is filtered through a process (the Electoral College for presidential elections), and 3) at still others the Constitution ignores the popular vote in favor of a competing purpose: giving States, not voters, equal representation (the United States Senate).
For those who find virtue in the principle of one-person one-vote, the Constitution and its amendments describe halting progress toward that goal, beginning from a low point of only white, landed men possessing the right to vote. Over time, and with much struggle, that right was extended by constitutional amendment to formerly enslaved (male) persons (15thAmendment), to women (19th Amendment), to 18 year olds (26th Amendment). There is a constitutional amendment that removed the voting impediment of a poll tax (24th Amendment). And a federal statute, the Voting Rights Act of 1965, designed to protect voters of color.
But still, the job is not done.
Even today, some groups do not enjoy full political representation- – for example, citizens who live in the nation’s capital, notwithstanding the 23rd Amendment to the Constitution, and citizens who live in Puerto Rico. Lawsuits decided by the Warren Court in the 1960s succeeded in reducing unequal representation – – malapportionment–but not eliminating it – – gerrymandering. And whether or not intentional, election laws and voting practices around the country often seem to serve no legitimate purpose, but rather, only promote voter suppression. Shouldn’t those laws and practices have a single purpose: to make it easier for eligible voters to participate in our representative democracy?
The act of voting is–or should be–a nonpartisan non-issue. Our democracy becomes more robust when more citizens participate in it. Conversely, it is diminished when participation decreases.
Let’s examine the fundamental rules of our electoral system.
Some of the most important provisions related to voting appear at the very beginning of the Constitution: in Article 1, which describes the powers and duties of Congress. First, the Constitution requires that a census of all persons be conducted every 10 years. What does that have to do with voting? The results of the census determine the number of U. S. representatives that each state has in the House. That is the process of reapportionment and redistricting. Article 1, Section 2, Clause 3, as modified by the Fourteenth Amendment, section 2.
An even earlier section of the Constitution states that U.S. representatives shall serve two-year terms, and that they shall be chosen “by the people” of each state. Article 1, Section 2, Clause 1. Initially, United States senators were not elected by a vote of the citizens of each state. Rather, they were “chosen by the legislature thereof.” Unlike the House system of proportional representation based on population, each state has two senators, regardless of population, and senators serve six-year terms. Article 1, Section 3, Clause 1. With time, it came to be understood that United States senators chosen by state legislatures did not properly serve the interests of their citizens. As a result, the 17th Amendment was ratified in 1913. It states in part that the “senators from each state [shall be] elected by the people thereof.”
The Constitution provides that the president shall serve a term of four years. Article 2 Section 1, Clause 1. Appreciating the risks associated with a president re-elected time after time, Congress passed, and the states ratified in 1951, the 22nd Amendment, which provides in part that “no person shall be elected to the Office of the President more than twice.”
As to how the president is elected, the Constitution, as previously mentioned, does not rely on a popular vote system. Instead, the Constitution describes an electoral college, with each state having a number of presidential electors equal to the number of its U.S. representatives plus its two senators. Article 2, Section 1, Clause 2. Just as with the decision to have two chambers in Congress, one based on population size for states and the other not, the above provision also represented a political compromise. Presidents would not be elected based on winning the popular vote, but rather, based on winning the electoral college vote. This has given outsized influence to less populous states, and when combined with the ‘winner-take-all’ formula that 48 of the 50 states follow for the presidential election, can and has produced presidential elections in which the winner failed to win the popular vote, as in 2000 and 2016.
Another section of the Constitution provides that elections – – even those for federal offices – – are, at least initially, run according to rules crafted by the states. Under Article 1, Section 4, Clause 1, “[t]he times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.” In part due to this section, and in part due to Article 2, Section 1, Clause 2 of the Constitution and the 12th Amendment (ratified in 1804), which refined the process of electors voting for president and vice-president, elections that include candidates for federal offices are not run according to a single, uniform system. Rather, 50 different sets of rules for voting are in play.
Notwithstanding the states’ general authority to run elections as they please, Article 1, Section 4, Clause 1 also provides that “Congress may at any time by law make or alter” states’ voting rules. From time to time, Congress has done so. Are you familiar with the Motor Voter Act of 1993?
In our representative democracy, there are multiple ways in which you can participate, including: running for office; communicating with your elected representatives; or exercising your First Amendment rights through peaceful protest. But always remember that one of the most important ways to participate is to vote. That right is set forth in both the U.S. and state constitutions. Voting—yes, your single vote–is an essential element of the system of checks and balances designed to ensure that our federal and state governments function in a just manner. As I wrote previously, your voice is your vote. Be heard.
Professor, Cleveland-Marshall College of Law
Brian Glassman taught full time for 27 years at the Cleveland-Marshall College of Law before transitioning to part-time professor this year. He conceived of, organized, and moderated a conference, “Election Integrity in a Time of Political Polarization: Gerrymandering, Redistricting Commissions, and the 2020 Census Citizenship Question,” hosted by Cleveland-Marshall in October 2019. He also spoke at the Law Dean’s virtual Town Hall on “Elections, Coronavirus, and the 2020 Census” in April 2020. Currently, he is working on voting rights issues for organizations committed to free and fair elections. On September 24, 2020, he will be co-presenting with Allegra Lawrence-Hardy, Esq., legal counsel for the voting rights organization Fair Fight Action, at a Cleveland-Marshall virtual event titled “Racial Discrimination in Voting.”
Prof. Glassman received his B.A. from Connecticut College, and his J.D. from the Boston University School of Law.