Posted on 28 March 2014.
It is Sunday the 9th of March. Imagine if today, voting day for Congress in Colombia, Bogotanos could not go to the polls because they live in the Districto Capital (nation´s capital district) and not in a departmento (state); would this violate human rights law? Imagine this same day if afro descendants, indigenous, women or those with modest incomes that don´t own property could not vote; would that violate human rights law?
Former mayor of Bogota Enrique Penalosa after casting his vote (Guillermo Legaria/AFP)
Today, almost everyone would answer of course, it would violate human rights law and many would think that this just does not happen anymore. But oddly, these types of violations of political rights are not a thing of the past. Often, national courts go to great lengths to avoid having to strike down mechanisms and procedures that from an outside observer seem to be a clear violation of the right to vote. Often, those working in human rights organizations are puzzled by how some politicians and judges refuse to see what is a plain and egregious violation and how society has come to grow accustom to a violation.
Human Rights law is quite clear. The International Covenant on Civil and Political Rights (a treaty to which 167 nations are state parties including all countries of North and South America) in Article 25 states:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 (without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status) and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.”
My own country, the United States, actually excludes people who live in Washington, D.C. (District of Columbia) from voting for members of the U.S. Congress. Residents of Washington, D.C., the nation´s capital, who are citizens of the United States, have no voting representatives in the Senate or in the House of Representatives. The District of Columbia needs assistance from the international community, including Colombia, to fix this clear human rights violation, as here in Bogota, D.C., citizens are busy voting for their Congressional representatives.
Imagine how residents of Bogota, Districto Capital would feel today if everyone else in Columbia was voting for Congress, but they could not?
In fact, Mexico and Brazil, which both borrowed from the U.S. federal system and created capital districts where their citizens residing in the D.C. could not vote in Congressional elections, have both recognized the clear violation and changed the law.
It is hard to understand how this human rights problem persists in the U.S., especially when compared with rhetoric from that country on the importance of voting and how sacred this right is and how important it is to protect the voting rights of the people.
Former President Lyndon B. Johnson, who did a great deal to address race-based problems in voting in the US, stated: “The vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.”
Over the years there have been a number of legal challenges to this restriction of voting rights. U.S. courts have often decided that exclusion of individuals for race, economic status or gender violated their rights. As Justice Black said in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”
It is important to compare this with the cautious language and decisions related to the right to vote of U.S. citizens living in Washington, D.C.
But so far the close to 5 million U.S. citizens that do not live in a state continue to be denied the right to vote and the courts have always prioritized a mechanism found in the constitution over the rights of the citizens who do not live in a state.
If a U.S. citizen moves from any state to Washington, D.C., or to another non-state U.S. entity (Virgin Islands, Puerto Rico, Guam, Northern Mariana Islands and America Samoa), she will find herself denied the right to vote in federal elections. If that person moves from that state to Riyadh, or Reykjavik, or Bogota though, she would still able to vote absentee as a state resident. This is an injustice that needs to be fixed.
Members of DC Vote demonstrate to get the “Taxation Without Representation” plate on the presidential motorcade, which the administration did in January 2013 (flickr/ekelly80)
In 1998, two complaints (the Adams and Alexander cases) were filed, each alleging, inter alia, that inhabitants of the District of Columbia are being unconstitutionally deprived of their right to vote for representation in the House of Representatives and the Senate. They note that the citizens of the District pay federal taxes and defend the United States in times of war, yet are denied any vote in the Congress that levies those taxes and declares those wars. This, they continue, contravenes a central tenet of our nation’s ideals: that governments “deriv[e] their just powers from the consent of the governed.” The Declaration of Independent, para. 2.
In its original form, the U.S. Constitution provided: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” U.S. Const. art. I, § 3.
The Seventeenth Amendment provides: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.”
Basically, if you do not live in a state, you have no right to vote in U.S. federal elections. Odd, as human rights law is clear that voting attaches to citizenship. For years courts have tried to avoid the rights of the citizens and tried to contort their logic to not see how the right of a citizen is violated when they cannot vote for those that make decisions that impact them.
In Ballentine v. United States, Ballentine was born in St. Louis, Missouri on October 22, 1936. After working for a number of years as a deputy United States Marshal in the continental United States, Mr. Ballentine was transferred in 1973 to the U.S. Virgin Islands, where he has remained ever since. Mr. Ballentine brought an action on July 30, 1999, claiming that he has been denied his constitutional right to vote in presidential elections, and his right to be represented in Congress by a regular voting member, because of his status as a United States citizen residing in an unincorporated territory of the United States.
In this case, like so many others, it was decided that “the franchise for choosing electors is confined to ‘states’ cannot be ‘unconstitutional’ because it is what the Constitution itself provides.” Odd, as the U.S. Constitution also provided for the exclusion of slaves and indigenous peoples from voting. Rights should trump mechanical sections of the Constitution.
So how did rights override parts of the Constitution but not other parts? Courts in the U.S. have been unwilling to find the Constitution unconstitutional, so they have done the changes in terms of voting rights within the framework of the Constitution, not touching the mechanism for voting, which is just with the states.
Countries that have integrated human rights law into their constitution have an easier time holding mechanisms within a constitution unconstitutional as they violate a developing notion of rights. The U.S. has only two choices to bring their current practice into conformity with their human rights treaty obligation. One, the Courts could read the 9th Amendment , which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” to conform to current thinking of rights and the right to vote as found in the International Covenant on Civil and Political Rights. The other would be for the U.S. to pass an amendment to the Constitution to create one non-state voting district for all those who are U.S. citizens, but do not have the right to vote in Congressional and Presidential elections.
Importantly, one poll shows approximately 80% of adult Americans are not aware that DC residents pay federal taxes and have no voting representation in the House or Senate. But once aware of this aberration, they overwhelmingly support federal voting rights for the residents of the District of Columbia.
The difficulty with this is that process defined by the Constitution to pass an amendment requires States to pass an amendment. As this will dilute the voting power of States, there are forces of the status quo that impede this change.
The Fifteenth Amendment (1870) states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The Nineteenth Amendment (1920) provides that: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.” Although these amendments seem to indicate that every U.S. citizen has the right to vote, the U.S. Supreme Court holds that this right only applies to residents of one of the fifty states.
There have been six countries that modeled their governments so closely after America’s that they, too, created the “D.C. voting problem” in their countries, including Brazil and Mexico. All six rectified the problem, in recognition of the need for all citizens to vote.
For those that don´t think the U.S. is violating its human rights obligations by excluding about 5 million citizens from voting in Congressional elections, they should come to Bogota and try to convince the people here that those living in Bogota, D.C., should not have the right to vote unless they moved to a departmento or state. People would find the argument ridiculous. Discriminating against citizens based on place or birth or residence can no longer be sustained in the U.S. Allowing all citizens to vote is long past due.
Todd Howland is the Representative of the UN High Commissioner for Human Rights in Colombia and a graduate of the University of Denver Sturm College of Law