Voting Rights are First Amendment Rights
To be quite honest, I’m completely surprised that I have yet to hear anyone make the argument that Voting Rights are First Amendment Rights. That to curtail those rights, without a clear and consistent reason addressing the public interest, is a violation of the Constitution and a citizen’s inalienable rights.
I’m also utterly surprised that no one is talking about how restricting access to voting, for those who are citizens of age, violates ones right to Life, Liberty and the Pursuit of Happiness.
But, that’s not the argument those on the Right want to push. And, those are not the arguments those on the Left have ever embraced. I don’t know why. (If I’m wrong and there are those on either side of the aisle pushing Voting Rights as First Amendment free speech rights let me know in the comments, would love to read their arguments.) I’ve said it before and I’ll put it out there again, I’m not a lawyer, and I’m by no means a Constitutional expert. That said, what I’ve been seeing and how I understand the Citizens United decision is that political contributions, money to support one’s preferred candidate, is protected Speech (capital ‘S’ for it falls under the First Amendment).
Looking at this from different angles, then, we can conclude that the Supreme Court has determined that money is a proxy for political speech. What does that make a vote? If a vote is not the purest distillate of Political Speech at the very least the same level as The Almighty Dollar, then what exactly did the Founders build? A corporation? I don’t see the word “capitalism” in the Constitution. (I’ll pause here and note that while capitalism naturally arises out of our constitutional framework it isn’t the only economic system that can fit into our system of governance that, for the most part, leaves the citizenry to its own devices. I’d argue that a more socialistic economic system, one that sees a more equitable financial distribution, could fit into our legal framework, as long as the various government entities stay clear from dictating too many terms.)
On the flip side, and what the Right likes to argue (in the same vein their predecessors argued on behalf and for the continuation of slavery) is “State’s Rights” in setting voting rules, laws and restrictions. Now, here I’ll admit they have some ground to stand on, after all the Constitution clearly spells out the right of the States to set their election rules and laws.
Countering this, though, is that Federal law supersedes State and local law, unless clearly forbidden by the Constitution (again, though, this is Federal law superseding State law by declaring State law superior to Federal). Therefore, the First Amendment necessarily supersedes individual States’ attempts to limit speech. What is missing here, however, is the legal recognition that a person’s vote is speech. Sure, it effectively takes place in a public square, and therefore has restrictions placed upon it to ensure “public safety” (no yelling “fire” in a crowded movie theater). However, that in no way diminishes a person’s vote as a personal choice, thought and that person’s voice, akin to the practice of religious beliefs. In essence and in fact Speech. Protected Speech.
I’m not sure we’ll find a way as a nation, on a bipartisan basis (not while we have one political party hell bent on destroying our democracy to permanently entrench themselves in power), to resolve the fight between those who wish to suppress the right and ability to vote and those who wish to expand the ability for all citizens, regardless of socioeconomic and ethnic background, to voice their political beliefs and opinions at the ballot box until there is legal precedent that says, clearly and unambiguously “A citizen’s vote is Protected First Amendment Speech”. That would take a Supreme Court that is actually interested in what the Constitution, its amendments, legal doctrine, history and precedence have to say as opposed to using the legal theories of “originalism” and “textualism” as cover to instill conservative ideology and law into a swiftly liberal leaning culture and electorate when and where it suits their political and ideological beliefs. Any honest Justice will eagerly point out how crucial voting is to maintaining the foundation of our nation and how the Founders saw a citizen’s vote as just as integral to their beliefs as their religious views. But, as history has proved time and time again our Supreme Court Justices can be just as hypocritical as our politicians when it suits them. Here’s to hoping integrity and patriotism at the highest judicial levels wins the day.
