Should the Constitution Include the Right to Vote? (H. Joint Res. 74)

What is H. Joint Res. 74?

(Updated December 21, 2020)

This joint resolution would propose a constitutional amendment granting every U.S. citizen of legal voting age the fundamental right to vote in any public election held in the jurisdiction in which they reside.

As a proposed constitutional amendment, this resolution would have to pass both chambers of Congress with a two-thirds vote and be ratified by three-fourths of the state legislatures (38 states) to amend the Constitution and take effect.

Argument in favor

Citizens’ ability to vote in elections is crucial to the functioning of U.S. democracy. Protecting voting rights in the Constitution will ensure that this right is protected and that all who are eligible to vote can do so.

Argument opposed

Amending the Constitution is incredibly difficult and a right-to-vote amendment is unlikely to pass. The Supreme Court has also already weighed in on the question of whether there’s a right to vote, ruling that such a right doesn’t exist.

Impact

Elections; U.S. citizens; voters; Congress; and the U.S. Constitution.

Cost of H. Joint Res. 74

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Mark Pocan (D-WI) introduced this joint resolution to explicitly guarantee the right to vote in the U.S. Constitution:

“The biggest strength of our democracy is that all citizens have an equal say through their vote. We have seen constant attempts by some states to erode voting rights and make it harder for citizens to vote. Our current President has also spread lies about illegal voting in what clearly looks like an attempt to undermine our election process. This constitutional amendment would help prevent these attempts to erode voting rights and affirm the principle of equal participation in our democracy for every citizen. Our democracy is strongest when everyone is able to participate, and it is time to fulfill that promise to the American people.”

Rep. Keith Ellison (D-MN), a cosponsor of this joint resolution, adds that a constitutional amendment guaranteeing the right to vote is especially needed in the current political climate, due to the Trump administration’s pursuit of voter suppression nationwide:

“Our democracy gains strength when more Americans participate in elections. But millions cannot vote today because of restrictive voting laws in some states – and President Trump has pledged to expand those laws nationwide. A constitutional amendment guaranteeing the right to vote would help stop this voter suppression. In 2016, 14 states had new restrictions in place for the first time in a presidential election. The impact this has on civic participation is devastating. Particularly for low-income communities and communities of color. Voting is central to the health of our democracy—every citizen in this country should have an inalienable right to vote.”

FairVote, a nonprofit founded to “make every vote and every voice count in every election through structural electoral reforms,” is a longtime supporter of a right to vote amendment, arguing that voting is an American principle that needs to be in the Constitution:

“Voting is an American principle and a basic democratic right that should be protected, promoted, and practiced, which is why many people are surprised to learn that the U.S. Constitution provides no explicit right to vote. This leaves voting rights vulnerable to the whims of politicians, and some citizens with fewer rights than others.... Even as the rising American electorate gains momentum, new regressive laws, rulings, and maneuvers are threatening voting rights without facing the strict scrutiny that would come with an affirmative right to vote in the Constitution… Enshrining an explicit right to vote in the Constitution would guarantee the voting rights of every citizen of voting age, ensure that every vote is counted correctly, and defend against attempts to effectively disenfranchise eligible voters. It would empower Congress to enact minimum electoral standards to guarantee a higher degree of legitimacy, inclusivity, and consistency across the nation, and give our courts the authority to keep politicians in check when they try to game the vote for partisan reasons.”

Scott Lemieux, writing in The Week, argues that a right-to-vote amendment likely wouldn’t pass in today’s political climate, and also can’t solve vote-suppression:

“[W]hile this is a laudable amendment, it's worth considering some of the limitations of this strategy… [T]he first issue is that Article V makes amending the Constitution enormously difficult. The Constitution has been amended only 17 times since 1789, and many of these have been minor. Granted, outside the unusual Civil War amendments, access to the ballot is the one substantive right that has been added post–Bill of Rights through formal amendment. In addition to the Fifteenth Amendment, the Nineteenth (extending the franchise to women), the Twenty-Third (giving electoral votes to the District of Columbia), the Twenty-Fourth (banning poll taxes), and the Twenty-Sixth (giving the right to vote to 18-year-olds) Amendments all enfranchised voters through the amendment process… [I]n the current political climate it's impossible to see the Ellison/Pocan amendment winning supermajorities in Congress or the support of three-fourths of the states. Most Republican legislators would understand perfectly well that the proposed amendment is squarely pointed at the vote-suppression tactics that have become increasingly crucial to the dwindling GOP coalition. And even if an amendment did pass, it's not at all clear that the problem would be solved… It's very likely that the Roberts Court would uphold most contemporary vote-suppression laws even if a right-to-vote amendment was passed.”

The Supreme Court has already weighed in on this question, ruling in Bush v. Gore that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States.”

This joint resolution has the support of 37 cosponsors, all of whom are Democrats.

Of Note: While the Constitution prohibits discrimination at the voting booth based on age, sex, and race, there’s no explicit, affirmative right to vote for U.S. citizens.

As of February 1, 2017, at least 46 bills to restrict access to registration and voting had been introduced in 21 states. These pieces of legislation included efforts to require photo ID to vote, make voter registration more difficult, reduce early voting opportunities, and make it harder for students to vote.

Media:

• Sponsoring Rep. Mark Pocan (D-WI) Press Release