Sunday, May 26

Opinion | The U.S. Lacks What Every Democracy Needs

Most expansions of voting rights in the United States have come from constitutional amendments and congressional action, not from courts. In fact, in Bush v. Gore, to give a relatively recent example, the Supreme Court reiterated that the Constitution does not guarantee citizens the right to vote for president and confirmed that states may take back the power to appoint presidential electors directly in future elections.

Some people think erroneously of the Supreme Court as a broad protector of voting rights, expanding them well beyond the text of the Constitution. Consider first the case of Sgt. Herbert N. Carrington, one of the lucky few whose right to vote the court protected. In 1946 he enlisted in the Army at age 18 in his home state, Alabama. When he was transferred in 1962 to White Sands, N.M., he moved with his family to nearby El Paso, Texas. Yet when he tried to register to vote in the Republican Party primary in Texas, he was surprised to learn he was ineligible. The state Constitution prohibited military members who were not Texas residents before joining the service from voting there.

Mr. Carrington filed a lawsuit against the state directly to the Texas Supreme Court in 1964, arguing, among other things, that his disenfranchisement violated the equal protection clause of the 14th Amendment, a provision barring states from denying “any person within its jurisdiction the equal protection of the laws.” When the case made it to the U.S. Supreme Court, Texas defended its Constitution, contending that it had “a legitimate interest in immunizing its elections from the concentrated balloting of military personnel, whose collective voice may overwhelm a small local civilian community.”

The Supreme Court disagreed, striking down the Texas provision, in the 1965 case Carrington v. Rash. The right to vote, the court wrote in a key part of its 7-to-1 opinion, “cannot constitutionally be obliterated because of a fear of the political views of a particular group of bona fide residents.” Justice John Marshall Harlan, dissenting alone, argued that the equal protection clause was “not intended to touch state electoral matters.”

It is hard to overstate how unusual it was for Mr. Carrington to get the Supreme Court to strike down his disenfranchisement. His lawsuit came during the only period in the 235-year history of the Supreme Court when it was hospitable to broad constitutional voting rights claims. The court, under Chief Justice Earl Warren, saw a broad expansion of voting rights in the 1960s, thanks mainly to its capacious reading of the equal protection clause.