Saturday, June 22, 2013
For the Republicans, an idea whose time has come
The Republican Party has a problem: it represents several shrinking demographics, led by elderly white people and the well-to-do. The ineradicable views of white voters in the red states and gerrymandering in purple states like Ohio, Florida and Pennsylvania have locked a majority in Congress in for them for some time to come, but they are having a much harder time in presidential elections and even statewide races. Their rhetoric increasingly emphasizes the electoral power of the less well off, whom they like to stigmatize as those who merely take from the government while they give to it--the notorious 47%, which may well grow thanks to the sequester that they ordered. Now they face the dilemma of immigration reform, which studies show would benefit the nation's economy but which would also add millions of new hispanics to the voting rolls.
It occurred to me this morning that the solution to Republican electoral problems is, when you think about it, obvious, and a friend of mine from a red state pointed out that a Tea Party leader has already mused about it, back in the heady days of 2010. The solution, which has a rich tradition in western and US history, is a property qualification for voting. And what is rather shocking is that there does not seem to be anything in the Constitution to prevent it.
Property qualifications for voting were common--although I am not sure they were universal--in the original 13 colonies. They were eliminated state by state in the era of Jefferson, Madison and Monroe, and that may have had something to do with the landslide election of Andrew Jackson in 1828. The original federal Constitution blessed them in effect when it gave the right to vote for Congressmen, in every state, to those allowed by state law to vote for the more numerous branch of the state legislature. Meanwhile, the Constitution specified that Senators would be elected by state legislatures and left the question of how to select presidential electors entirely up to the states. Gradually the custom of allowing the voters to select them by voting for the presidential candidate of their choice became general.
The Civil War amendments to the Constitution only marginally affected the issue of property qualification. The 15th Amendment barred states from abridging the right to vote based upon race, color, or previous condition of servitude, but said nothing about property. The 14th Amendment included a provision that could be used to punish states for imposing a property qualification, although that was not the provision's intention. While the 14th Amendment allowed states to impose racial qualifications for voting, it continued, "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 maleinhabitants 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 malecitizens shall bear to the whole number of male citizens twenty-one years of age in such State." In other words, should Texas, for instance, establish a property qualification that disenfranchised 40% of its adult citizens, their number of House seats could--by some unspecified procedure--be reduced by 40%. This provision of the 14th Amendment was originally designed to induce the southern states to admit the freed slaves to the vote themselves in order to secure larger representation in Congress, but when the southern states refused to do so, the Republicans resorted to the 15th Amendment instead.
Nearly half a century later, the 17th Amendment gave the right to elect Senators to the people but once again fixed the qualifications for voting for Senators as the same as those for voting for the most numerous branch of the state legislature. The 19th Amendment, forbidding limitation of the right to vote based upon sex, did nothing to change the rules on voter qualifications in any other way. In 1964 the 24th Amendment, passed after a very long struggle, outlawed the poll tax as a requirement to vote, but said nothing about property qualifications. (Curiously, the amendment did not abolish poll taxes, but simply forbade states from denying the vote to anyone who refused to pay them.) Lastly, the 26th Amendment prohibited any age qualification of 18 years or older.
It is very hard to say how long the mood of the Republican Party is going to last. On the one hand, the Tea Party is composed mainly of older voters who are dying off every day. On the other hand, the Republican Party has produced a large cohort of politicians from Generation X whose views echo or even go beyond those of the Tea Party. If in fact demographic changes begin to threaten their position in purple or red states, then I will not be surprised at all if the idea of property qualifications becomes popular. And many will be surprised to find that the Constitution does not forbid them.
Professor
I am no expert on the Constitution, but it seems to me that someone might think to use the Equal Protection Clause, to oppose a state property requirement, given how constitutional jurisprudence in that area has gone in the last 150 years.
all the best
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