Voting Rights and the iPod Generation

Jonah Goldberg at the NRO on voting rights.

My question is, even if we really wanted to, could we do it? *commence research*

On the subject, I found an interesting article from NJ. Apparently, Article II, Section 1, Paragraph 6 of the New Jersey State Constitution used to state that "no idiot or insane person shall enjoy the right of suffrage." On Nov. 6, 2007, it was amended to say: "No person who has been adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting shall enjoy the right of suffrage." So, at least in NJ, Jonah's proposal could be acceptable; he makes the argument that those lacking 'basic civil literacy' lack the capacity to understand the act of voting (because if they did they would accord it proper respect, and not 'cheap[en]' it, I'm guessing).

To me, the difference between the two sentences is really a cosmetic change; while the derogatory terms 'idiot' and 'insane' are removed, the point remains that a court can decide someone is not competent to vote, and thus disallow them from doing so.

So, two follow-up points/questions: 1. the practical basis and 2. the Constitutional case.

1. The text of the NJ Constitution says 'No person who has been adjudicated by a court....' My interpretation of that (based on my understanding of competency hearings in general), is that each individual and each case is addressed on an independent basis to determine the specific competency of that individual, and it must be done in a court and ruled upon by a judge- failing a political literacy test, while possibly identifying an uneducated individual, will not carry the legal weight to deny voter competency. This would seem to preclude against declaring an entire group of people incompetent, since I highly doubt that Jonah or any one else wants to spend the rest of their life suing for competency rulings on every one who fails such a test.

2. The original text of the Constitution does not address the voting rights of citizens, only that they have the right, through state Electors, to chose their representatives. How the state Electors are chosen, however, is left up to the individual states. However:

But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States....

Now, admittedly, this statement comes from a section on apportionment of Representatives. But it does clearly state the 'right to vote'. Furthermore, US citizens cannot be denied the right to vote on basis of race, color, previous condition of servitude (15th Amendment), sex (19th Amendment), age over 18 (26th Amendment). Conditions under which a citizen may have their voting rights denied: participation in rebellion or other crime (14th Amendment).

I might be incorrect, but I believe the purpose of the 24th Amendment is to prevent economic status from being used as a bar to voting (the inability to pay a tax). The specific text is this:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reasons of failure to pay any poll tax or other tax.

So, you can't be denied the right to vote because you are: a different race, a different color, a former slave, a woman, the wrong age, or poor. You can be denied the right to vote because you tried the overthrow the government (I guess you wouldn't be voting for them anyway) or you committed a crime. I'm not entirely certain how we get away with preventing criminals from voting, but my guess is it goes something like this: because they reflect poorly on US citizenship and their evident disregard for the laws of the US which protect us hint that, if allowed to vote, they might vote in such a way to do away with those protective measures, or allow such behavior as would be detrimental to society. Which I think is ridiculous because it assumes that laws in this country are automatically beneficial (let alone Constitutional- all I can think about in this case is the civil disobedience in the 1960s- we want to deny these people the right to vote, after passing Amendments and laws so that they could?!). But I guess that a parallel argument could be made for uneducated voters.

I am neither a lawyer nor a legal scholar, so I could be missing something on the right of criminals to vote, but either way, not allowing people to vote because you think they are stupid (while not at all contradictory to the spirit of the Constitution- the Founders were afraid of mob rule, hence creating a republic, not a democracy), does go against the letter of the Constitution. Two final, and fairly important quotes:
The 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Voting might not have been an original right, but I would say it definitely counts as a privilege. And furthermore:

The 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just because we don't have an Amendment saying uneducated people can't vote doesn't mean we can deny their right to do so.



(Hat tip: Kathryn Jean Lopez by way of Andrew Sullivan)