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OUR VOTING RIGHTS – A State by State Analysis

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 we need to take a good look at it.  We should start by asking:

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 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 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 as 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 are 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
StateVotingRights
 
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 by the people, but only nine state explicitly guarantee the right of suffrage.  Suffrage is the right to vote in a democratic process. It is the political franchise itself, not the right of any one individual. It says that elected officials do not have the power to suspending elections.  This seemingly essential right of the people is specifically named in only nine state constitutions.
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 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 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, 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 was never publicly debated. As with all voting processes in this country, we never got to vote on whether we wanted this change.  Just 28 state constutions guarantee voting by ballot but none of them contain any language to define what is a “ballot”, so electronic voting cannot be easily challenged on constitutional ground.
RIGHT TO SECRET VOTING –  The secrecy of our vote is among our most cherished rights, except it isn’t a constitutional right at all for more than 146 million American citizens.  Secret voting prevents voter intimidation.  It assures us that how we vote can not be used against us later on.  Only 23 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 – 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 is 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 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.  We need clear guidance on when elections should be held. Fifteen states have clear constitutional language about this.  The rest don’t.  While we know when to expect elections in our state only 30% of us have these expectations guaranteed.
PRIVILEGE FROM ARREST AND EXCEPTIONS –  Imagine heading out to vote knowing you have a few outstanding parking tickets.  You show up at your polling place and notice a police presence out front.  Maybe they even appear to be question 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 a privilege from arrest is designed to resolve.  You should not see a uniformed police presence at polling sites or feel any intimidation at all.  A uniformed police officer at a polling site can be especially intimidating to minorities and economically disadvantaged voters. It can suppress the vote.  Unless a voter is wanted for  serious crimes or treasonous, or unless they cause a public disturbance, the privilege from arrest while voting should be guaranteed.  Just 23 states have this guaranteed. 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.  You might think that the “Americans with Disabilities Act” covers this right, but voting doesn’t always take place in buildings covered by the act.  More broadly speaking, a guaranteed access to polling places means adequate numbers of voting machines voting locations that people can  get to without a significant expense of time or money.  This has been a particular problem in “battle states” such as Florida where the lines to vote were many hours long.  It turns out that onlyNew Hampshire and Oklahoma are the only states providing this constitutional protection.
 Here below is a summary voter rights and the percentage of American citizens who are covered under those right.

PERCENTAGE OF CITIZENS COVERED BY THE VOTING RIGHTS 

ARTICULATED IN STATE CONSTITUTIONS

Num. of States

 w/This

 Right

Percent of  Population

 w/this  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
28
55.3%
Right to voting by ballot
23
46.7%
Right to secret vote
3
5.6%
Right to Public Vote Counting
15
32.6%
Frequency of Elections Right
23
36.5%
Privilege from Arrest during voting
21
36.5%
Privilege from Arrest Exceptions
2
1.6%
Right to accessible polling place
Num. of 
States
 w/This Right
Percent of Population 
 w/This 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 Solders 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 

Voting Rights, a State by State Analysis

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 purview 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 expression 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 follows, 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 their 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 9 state 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 Paris26 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 soverign 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 hands are unique to each voter, often secret and never shared by more than one voter. They are usually pre-printed paper, but increasing voting is by electronic ballot.  This is a pre-programmed selection on an electronic device.  Hopefully the results aren’t also pre-programmed (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 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 is 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 a 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 does 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 undo 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.

 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 accessible polling place

 

 

 

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 Solders 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