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Our Path Forward: Establishing, Enforcing, and Enabling the Right to Vote

Wisconsin should elaborate a strong right to vote in the state Constitution and automatically register all citizens to vote.

Background
Voting is the most basic democratic act. It is the one by which citizens of democratic society, understood as a community of equals, freely choose the government that will rule them. The US has an exceptional history on voter participation, measured as a share of eligible turnout. Well before most of the world embraced democracy or granted suffrage to those without property, participation here among the landless rose early and sharply in the 19th century. But then, after the defeat of the Populists in the signal election of 1896, it declined sharply, and has never fully recovered. No other country has either part of this record, which political scientists characterize, starkly, as the “appearance and disappearance of the American electorate.”1 Today, despite all the gains we’ve made as a society in education, wealth, and civil rights, the US has among the lowest rate of voter participation in the developed world. 2

There are institutional bases for this low-mobilization politics— rules that make voting more difficult or politics less interesting. These include our distinct requirement of personal periodic registration (in other countries, this is generally done automatically), the fact that election day is only one day and not a holiday, the enormous number of differently timed elections, our corrupt system of campaign funding, the gradual elimination of any alternatives to a single-member district “first past the post” voting regime, which condemns minor parties to irrelevance or worse. 

And there are huge substantive consequences. By far the largest “party” in American politics is that of non-voters. Their ranks are heavily populated by the young, citizens of low to moderate-income, racial minorities, average “production” workers and their families – all groups that American politics serves poorly. Their abstention from voting is, of course, self-enforcing in effect. Alienated from our conventional politics and feeling little capacity to change it, their absence makes politics ever more repellant and irresponsible to them. 

Changing this picture, more of less from top to bottom, is the core reason for OWR’s existence. We believe in democracy – a real democracy. We want to remobilize the electorate by removing barriers to their participation, reigniting their sense of agency, giving them something worth voting for, and getting once more the help of all citizens in strengthening and improving this last best hope on earth. Here, we start with some of the obvious barriers.

What’s the Problem Addressed?
Surprising to many, there is no right to vote guaranteed in the US Constitution. Declaring that right, its full meaning, and the rules for its use, is left to the states.3 For a very long time, states have derelict and broad anti-democratic in exercising this enormous power. From the basic mechanics of counting votes accurately or providing a verifiable paper trail of votes counted, through the more substantive aim of making voting as easy as possible, to informing voters about the records of candidates they are asked to choose among, states have done a mediocre job. Partisan majorities within them have regularly used decennial obligation to redraw election districts to equalize votes within them for an opposite purpose: to “gerrymander” districts to partisan advantage. 

Recently, led by Republican-dominated legislatures, this state game of manipulating democracy has become an even more dangerous threat to democracy: to use state powers to deliberate exclude members of populations suspected of opposing their policies from voting altogether, by formally or informally denying them the right to vote.4 Under Scott Walker’s leadership, Wisconsin has the shame of being a leader in this reckless abuse of power. This must be stopped.  

How does OWR Proposal Address It?
Providing a strong constitutional right to vote by defining its content and moving beyond its empty statement would give unambiguous basis for fighting against the myriad of ways our state government has discouraged voting. Automatically registering voter would get them over the first barrier to exercising the franchise; it would permit activist civic groups to concentrate on the substance of their advocacy and organization instead of spending untold time and money, each election cycle, simply in getting people registered. 

Who Else is Doing This?
Many other states have moved to strengthen their constitutional right to vote, with efforts particularly focused on reinstating voting rights to former felons after they’ve served their sentence.5 And many more are trying some version of Automatic Voter Registration (AVR), a simple and efficient way to increase voter registration and turnout.6 In 2016, Oregon became the first state to implement an AVR program: eligible but unregistered voters found through the state’s Department of Motor Vehicles (DMV) databases are notified by mail that they will be added to the voter rolls, unless they decline registration within 21 days. West Virginia and Vermont approved an AVR program on 2016, and in 2017 no less than 32 states introduced legislation to implement or expand automatic registration.7 What is done through state DMVs, of course, could be done through any state agency providing service. 

Why Not Wisconsin?
Wisconsin has a pro forma clause in its constitution that, like many states, declares that any US citizen of at least 18 years of age residing in an election district “is a qualified elector” in that district. But it does not spell out the real rights of such “electors”, or identify these rights as fundamental and requires a compelling state interest before burdening their exercise. We should do better. We should assert the right as fundamental (thus requiring “strict scrutiny” of its burden or infringement) and explicitly prohibit any state action that burdens its free and equal and effective exercise by all – thus providing clear state constitutional bases for overturning the partisan gerrymandering schemes, excessive ID requirements, limitations on voting time and means, discriminatory allocation of state resource to polling places, premature purging of voting rolls, etc., under the Walker administration, that have shamed this state. Especially given the fantastic rates of incarceration of African Americans in WI, we could also reinstate voting rights for ex-felons during their probation or supervision period. And we should certainly join what is now a majority of states in making voter registration automatic – before high school graduation, at the DMV or any other state agency. 

NOTES

  1.  Burnham, Walter D. (1982) “The Appearance and Disappearance of the American Electorate,” in The Current Crisis of American Politics (New York: Oxford University Press, 1982), pp121-165
  2.  DeSilver,  Drew (2017), “U.S. trails most developed countries in voter turnout” (Pew Rearch Center Fact-Tank), http://www.pewresearch.org/fact-tank/2017/05/15/u-s-voter-turnout-trails-most-developed-countries/
  3.  Douglas, J. A. (2014). “The Right to Vote Under State Constitutions,” Vanderbilt Law Review.67: 89-149 (https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=1295&context=law_facpub)
  4.  Soros, J., & Schmitt, M. (2013). The Missing Right: A Constitutional Right to Vote. Democracy (https://democracyjournal.org/magazine/28/the-missing-right-a-constitutional-right-to-vote/); Liptak, A. (New York Times, June 25, 2013), “Supreme Court Invalidates Key Part of Voting Rights Act” (http://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html); Brennen Center for Justice, New Voting Restrictions in America. ( http://www.brennancenter.org/new-voting-restrictions-america)
  5.  Brennan Center for Justice (March 10, 2016). “Voting Rights Restoration Efforts in Maryland” (https://www.brennancenter.org/analysis/voting-rights-restoration-efforts-maryland
  6.  Brennan Center for Justice (December 4, 2017). Automatic Voter Registration (https://www.brennancenter.org/analysis/automatic-voter-registration)
  7. Ibid
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