In practice, the Constitution leaves most decisions about the ballot to state and federal legislators, saying that the “times, places and manner” of elections are state matters unless Congress sets nationwide standards.
What most Americans see as an inalienable right to vote is actually the product of decades of court rulings and legislative decisions, most of them — but hardly all — slowly expanding a legal guarantee of the ability to cast a ballot. Congress could give everyone the right to vote by mail, but since it has not, mail balloting is subject to a jumble of state laws. The 19th Amendment, ratified in 1920, gave women the right to vote, but by then, Wyoming had been letting women vote for 50 years, even when it was a territory, not a state.
What does the future hold?
For decades, courts and Congress have taken the lead in upholding a legal right to vote — in the Voting Rights Act of 1965; in the 1966 Supreme Court case, Harper v. Virginia Board of Elections, which outlawed poll taxes; in federal legislation in 1993 that set ground rules for registering new voters and removing existing voters from the rolls.
In lawsuits seeking to enforce or protect existing election laws, the 14th Amendment’s implicit guarantee of voting rights has become a mainstay of plaintiffs’ arguments.
“As long as those precedents are respected, I think it’s fair to say there’s a constitutional protection of a basic right to vote,” Edward B. Foley, a leading scholar of election law at Ohio State University, said in an interview.
But the evolution of an increasingly conservative Supreme Court with a skeptical approach to voting rights and an emerging record of upending precedents means that the current interpretation of the right to vote is no longer a sure bet, he said. The court is considering two major voting cases this term — one that could limit the Voting Rights Act’s power to remedy racial disparities in political districts, the other arguing that state courts have no authority to overturn legislative decisions on political redistricting and election laws — that could reverse once-solid precedents.
Indeed, what most voters would consider a foundational right — electing a president — exists nowhere in the Constitution, which says presidential electors may be appointed “in such Manner as the Legislature thereof may direct.”