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writing for godot

No State Shall Make or Enforce Any Law . . .

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Written by Ted Reynolds   
Friday, 03 August 2012 17:01

With all the problems, issues, and controversies in the news, it's great when one comes up for which there's an obvious and unambiguous Constitutional solution.

The governors and legislators of several states are drawing up laws in preparation for the fall elections. These involve picture IDs, voter purges, etc. Some like the idea of these laws; some don't. Luckily, the whole controversy can be easily resolved.

This is not the first time this problem has arisen. And the first time it arose, after the Civil War, the Congress took the time to state clearly and categorically how it should be dealt with. They passed the XIVth Amendment to the Constitution , and it was not ambiguous in any way. Please read it carefully.

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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."

"Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. 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, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."

(Later Amendments added females to the voting rolls, and lowered the voting age to 18.)

Now Section 2 states quite clearly that if voting is denied (except for crime), or in any way abridged, the state will lose its electoral vote for President, as well as its representation in Congress, proportionately to the number of eligible voters denied voting. So, to choose a state at random, if a tenth of the voters in Pennsylvania are in any way abridged by State action, then Pennsylvania loses 1/10th of its electoral votes, and 1/10th of its representatives in Congress. (Exactly which districts lose their representatives is not for me to decide, but the mandate is clearly there. There are still three months to decide that.)

Moreover, it is obvious that the State itself cannot decide who are the eligible voters. This very Amendment was drawn up precisely to prevent the State from doing exactly that. (Poll-taxes and literacy requirements were favored at the time of this Amendment, even the demand that one's grandfather must have voted.) If the voting privilege of any eligible voter (citizen of the United States, resident of the State, non-criminal) is abridged in any way, the State's voting privilege must be abridged in proportion.

And just who is a citizen of the United States? Look at Section 1.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

All persons! Not just ones who can afford an identity card, or who return a postcard mailed to their address, or are on a list drawn up for some different purpose. It is up to the State to make sure that every citizen that wishes to vote actually can do so.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Of which privileges and immunities, voting is obviously paramount. This could hardly be clearer.

So the Constution plainly demands that all American citizens must be allowed to vote; and there is a real sanction against the State if it does not.

Could someone point this out to the Justice Department?

P.S. This is not symmetrical, by the way. Whether intentionally or inadvertently, there is nowhere in the constitution any sanction against a non-citizen voting. Surprising, but true.

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