Partly because the pandemic has shortened people's ability to dream about the future and partly because the current administration is orders of magnitude more incompetent than previous administrations, the 2020 United States Presidential Election is more fraught with fear, anxiety, and dread, than any other election in my lifetime. It certainly doesn't help that the current President when directly asked if he would go through with a peaceful transition of power if he lost the election has said "we'll see".
When the very validity of an election process is being questioned by a very interested party who is intent on retaining power, before the election has happened, this should start alarm bells ringing all over the place. This is after that same party has been impeached but not removed from office because of partisanship.
A lot of the reason why this state of affairs is enabled so very very easily is because there is no explicit positive right to vote in the United States Constitution. There are two key amendments which explicitly unshackle restrictions on account of legal disabilities but nowhere else in the document is the right to vote actually explicitly positively guaranteed.
Not that we have the explicit right to vote in Australia either. The Australian Constitution is framed as only the rules which define the government and parliament. There is no such thing as a Bill Of Rights within the Australian Constitution because the whole notion is conceived of very differently.
If I think all the way back to my Introduction To Law 101 teacher, Professor Pedder, he would often revert to the quote:
"An Englishman is free to do whatever the hell he likes except if there is a fence in the way."
I have no idea if it was said by Churchill, Blackstone, Joske, Disraeli, or whoever but the central kernel of truth remains. At least as far as English law is concerned, you are free to do whatever you like unless hedged in by law.
The United States though, generally assumed English Common Law at its inception but it changed its entire outlook on how it views law; almost on the turn of a single case. Decided in 1803, Marbury v. Madison remains the single most important decision in American constitutional law. The Court's landmark decision established that the U.S. Constitution is actual "law", not just a statement of political principles and ideals.
https://supreme.justia.com/cases/federal/us/5/137/
It is emphatically the province and duty of the Judicial Department to say what the law is.
- Chief Justice John Marshall, Marbury v. Madison, 5 U.S. at 177 (1803).
It might be too much to make this one decision bear the weight of an entire set of legal traditions but at roughly the same time, the United States moved from the assumption that a citizen was free unless the law said something, to the assumption that unless the law said something the freedom didn't exist. If the law doesn't say that that a right exists, then that right does not explicit exist because the law has not said that it is a thing.
At this point some American readers are going to get angry and tell me that I don't know what I am talking about but by the same token, as an Australian I have the right to health care, the right to social security, the right to rest and leisure, the right to quiet enjoyment of one's surrounds etc; some of those they will tell me are not rights at all. They would be of course absolutely correct in America but not here in Australia. Rights are already assumed to exist in Australia and don't actually need verification by operation of law. That's simply not true in the United States and is repeatedly borne out by a wealth of case law.
All of this leads me back to that question of do we have the right to vote in Australia? I think that we probably do but as far as the operation of the law is concerned, that's functionally irrelevant. We frame voting not as a right but as a compulsory civic duty; just like we do filling in a tax return, or jury duty, or conscription (though not at the moment), or even following the law. There is no right to disobey the law.
The duty to vote is contained in Section 245 of the Electoral Act 1918:
http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/cea1918233/s245.html
Compulsory voting
(1) It shall be the duty of every elector to vote at each election.
- Section 245, Electoral Act 1918
I personally think that framing voting as a duty rather than a right is a far more fair and equitable idea.
Firstly it confirms that the people have an obligation to be concerned about how the country is run and because the people elected to govern have been put there by the general public and not just their own highly interested followers, they have a greater sense that their own electorate can turn on them at the next election.
More importantly though, it places the obligation to ensure that people can vote back on the government. The difference between a non-explicit right which is only assumed and a duty which is imposed by law, is that the former is open to voter suppression whereas the latter is already bound by law not to.
http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/cea1918233/s231.html
Right of elector to receive ballot paper
(1) The presiding officer or a polling official shall at the polling hand to each person claiming to vote a ballot paper duly initialled by the presiding officer:
- Section 231, Electoral Act 1918
This does not exist at all in the United States. There is no compulsion to make sure that the electorate has the ability to vote and with no actual explicit right to vote either, no compulsion to make sure that that right is protected.
https://www.law.cornell.edu/constitution/amendmentxiv
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.
- Amendment XIV (1868)
The 14th Amendment contains the provisions that the states can't make laws which abridge the privileges and immunities the citizens of the United States. It doesn't specify what those privileges and immunities are; nor does it say that the states can't not extend a right if that right doesn't exist.
https://www.law.cornell.edu/constitution/amendmentxix
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.
- Amendment XIX (1920)
The 19th Amendment is generally considered to be the Amendment which gave women the right to vote but if you read the actual words of the text, it says that sex is the qualifier which has been removed as to whether or not the right to vote can be denied. It does not specifically say that there can't not be other things which deny someone the right to vote; nor does it say that if the right hasn't been extended to a particular person that the right suddenly gets extended.
This is where the law gets rather tricksy and where you might think that the operation of law will solve the issue at the centre of this. Do you remember how there is no explicit positive right to vote in the United States Constitution? That remains true but the entitlement to vote, which itself might have different legal ramifications to a right, exists at the next level down and in the Voting Rights Act of 1965.
https://www.law.cornell.edu/uscode/text/52/10101G
(1)All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding
(2)No person acting under color of law shall—
(B)deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election; or
- Voting Rights Act, 1965
Entitlements are strange things in US law. They can be subject to changes in rules and again, there is no specific obligation upon government to ensure that those entitlements are protected. Just because someone happens to be entitled and allowed to vote at elections and even though administration issues can't be posed as a specific barrier, there is no compulsion upon government to make voting easy, or accessible. The United States is ranked 57th in electoral integrity in the world. Compared to other liberal democracies, it is ranked second to last. It’s no surprise that the US trails behind other democracies in voter turnout; about 55% of eligible Americans voted in the 2016 election; if we compare that with Australia in 2016 where voting is not a right but a duty, the turnout here was 91% and in fact has never dipped below 90% in not quite 100 years.
If there's a queue of 15,000 people who all happen to live in one particular neighborhood and the local polling place only operates one voting booth, then at one vote every three minutes for twelve hours, then 240 people will have voted. The other 14,760 haven't been denied their right to vote on the grounds of race, sex, nor because of any administration issues. What are they complaining about?
All of this sets up cause to be very very worried about the elections in the United States in November. There is cause to assume that they will not be conducted fairly and no protective under the law to ensure that that happens. There is also no immediate ability to imagine what happens if the current president loses the election. This is all being conducted in front of a backdrop where the right to vote itself, is sketchy and not immediately self-evident.
No comments:
Post a Comment