Constitution Check: How secure is Desiline Victor’s right to vote?

Desilene Victor

Desiline Victor

Lyle Denniston examines the presence of a 102-year-old voter at the State of the Union address as foreshadowing a Supreme Court decision over the Voting Rights Act of 1965.

The statement at issue:

“We should follow the example of a North Miami woman named Desiline Victor. When Desiline arrived at her polling place, she was told the wait to vote might be six hours. And as time ticked by, her concern was not with her tired body or aching feet, but whether folks like her would get to have their say. And hour after hour, a throng of people stayed in line to support her–because Desiline is 102 years old. And they erupted in cheers when she finally put on a sticker that read, ‘I voted.’ ”

 – President Barack Obama, in his State of the Union address before Congress, February 12.

We checked the Constitution, and…

checkIt is one of the least understood facts about the Constitution that it does not create a right to vote. It assumes that there is such a right, by limiting when it can be denied or taken away. But neither in the beginning nor since has it guaranteed that the right will be open to all adults or to all citizens. Nor is there any constitutional promise that voting will be made easy or efficient, or that the votes will be counted correctly.

For example, while the 15th Amendment forbids the federal or state governments from passing laws that deny or “abridge” the right to vote on the basis of race or color, the Supreme Court as long ago as 1876 declared: “The 15th Amendment does not confer the right of suffrage upon anyone. It prevents the states, or the United States, however, from giving preference to one citizen…over another…” based on racial identity.

The scope of the right to vote, then, depends very much on the willingness of legislatures–in the states, and Congress–to protect that right or to facilitate its use. That reality was well illustrated by President Barack Obama’s tribute in his State of the Union address to 102-year-old Desiline Victor.

Though she was determined to cast her vote last November, however long it took, the Constitution did not assure her prompt access to a voting booth. The state of Florida had taken steps that contributed to lengthening the lines at polling places, by reducing the number of early voting days. Whether that was illegal because it might have been designed to reduce turnout among minority voters was not put to a test in court.

When Ms. Victor first came to the U.S. from Haiti in 1989, she obviously did not have the right to vote. But even after she became a citizen and obtained that right, the fact that she was an African-American might well have kept her from exercising that right. As recently as 2004, according to one court’s comment, there was a “stark” difference in Florida between the willingness of registered voters who were white to actually vote than was true for African-Americans who were registered. That comment was based on a Census Bureau report saying that the turnout rate among whites in that state was 20 percent higher than that of blacks.

If that can be taken as one indicator of possible racial discrimination in the conduct of elections–and some courts have, indeed, seen it that way–it is worth noting that this 2004 finding came 134 years after the 15th Amendment was ratified and 39 years after the Voting Rights Act of 1965 had been passed by Congress explicitly to eliminate such discrimination.

In calling the nation’s attention to Desiline Victor on Tuesday night, the president obviously was making a pitch for reform of election procedures to reduce the kind of delays that she and millions of other Americans had confronted at the last election.

But there is another facet of the current state of voting rights, especially the right of African-Americans to cast their ballots, that was illustrated symbolically on Tuesday night. The TV cameras, on the president’s cue, had focused on Ms. Victor as she sat in the gallery as the guest of First Lady Michelle Obama. But immediately after that, the camera angle moved and focused on the members of the Supreme Court sitting in the front row; six of the nine justices were there.

Whether or not that was an intentional move by the TV producer to make a point, it did. It highlighted the fact that, whatever the president may now want Congress to do about voting procedures, the president and the rest of the nation must await a historic ruling due from the Supreme Court later this year on the constitutionality of the Voting Rights Act of 1965.

That law is widely credited with having done more than any other law to protect the voting rights of minority Americans. But it has been under vigorous challenge for the past several years by the states–mostly in the South–that must obey that law’s most stringent limits on their power over election procedures. Their argument–already given a sympathetic hearing by the Supreme Court four years ago–is that the law is seriously out of date, because the South has changed and it is thus unconstitutional to single out those states under the act.

There appears to be a real risk that this time, the Supreme Court may strike down that part of the law when it rules on a pending challenge by Shelby County, Alabama, a local government covered by that provision. That risk has turned the Shelby County case into one of the most energetically fought cases before the justices in the current term.

A hearing on the case is set for February 27, but the nation will have to wait perhaps until late spring or early summer to know the outcome.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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