Sorry, there's no constitutional right to vote

Portside - The US Supreme Court decided - in a ruling that lacked any accompanying explanation - that a controversial voter ID law in Texas will be in effect this November, notwithstanding a contrary decision from a trial court.

The legal arguments around these kinds of voter ID laws, which tend to disproportionately disqualify non-white voters, hinge on whether they constitute a form of illegal (or unconstitutional) racial discrimination. But the fact that the legal, political, and constitutional arguments need to get pushed into a narrow racial discrimination frame is itself a symptom of the real problem: it's about time American citizens obtained a constitutional right to vote.

When the Constitution was enacted, it did not include a right to vote for the simple reason that the Founders didn't think most people should vote. Voting laws, at the time, mostly favored white, male property-holders, and the rules varied sharply from state to state. But in the first half of the nineteenth century, the idea of popular democracy took root across the land. Property qualifications were universally abolished and the franchise became the key marker of white male political equality. Subsequent activists sought to further expand the franchise by barring discrimination on the basis of race (the 15th Amendment) and gender (the 19th Amendment) - establishing the norm that all citizens should have the right to vote.

But this norm is just a norm. There is no actual constitutional provision stating that all citizens have the right to vote, only that voting rights cannot be dispensed on the basis of race or gender discrimination. A law requiring you to cut your hair short before voting, or to dye it blue, or to say "pretty please let me vote," all might pass muster. And so might a voter ID requirement.

The legality of these kinds of laws hinge on whether they violate the Constitution's protections against race and gender discrimination, not on whether they prevent citizens from voting. As Harvard Law professor Lani Guinier has written, this "leaves one of the fundamental elements of democratic citizenship tethered to the whims of local officials."