- Do you have the constitutional right to vote for president?

- Yes, I do.

- As an American citizen, yes, I do.

- Yes.

- Yes.

- Absolutely.

- Last election, more than 150 million people voted while another 90 million chose not to.

But whether or not we do it, all Americans have the right to vote, right?

I mean, there are whole amendments on it.

But, if you read the fine print, your specific right to vote isn't in here.

And in terms of voting for president, you don't have the right to do that at all.

In this episode, I'll explore who can vote today, the history of voting rights, how voting varies from state to state, and whether we actually have the right to vote for president while also meet up with some legal experts who can help us get to the bottom of this.

I'm Ben Sheehan, and this is "Civics Made Easy."

Who can vote today in America?

If you remember from our "Election Day" episode, states make their own voting laws, and every state says if you're a U.S. citizen and at least 18 years old, you can vote.

Although some states postpone or deny your right to vote if you've been convicted of a crime, which we'll get to later.

As for who can't vote, people under 18, as well as non-citizens, are not allowed to cast a ballot in either federal or state elections.

Non-citizen voting has actually been illegal in every state since 1926.

And in 1996, Congress added more criminal penalties if non-citizens were to vote in elections for Congress or President.

But there are roughly 16 cities and towns in California, Maryland, and Vermont, plus D.C. that do let non-citizens vote in local elections, like City Council.

And roughly 12 cities and towns in those same three states, plus New Jersey, let 16-year-olds vote in local elections like school board.

So, to get this out of the way, although non-citizens could vote in at least 40 states and territories before 1926, it is not true that today or any time in the past 100 years that non-citizen voting in federal or state elections has been legal or frequent.

In fact, Georgia's Secretary of State found that over a 25-year period, out of the millions of Georgians who registered, just 1,600 non-citizens attempted to register and none succeeded.

And Michigan's Secretary of State found that in the 2024 election, of the 5.7 million voters who cast a ballot, 15 may have been non-citizens.

And finally, according to the Heritage Foundation, of the more than 1.8 billion votes cast since 1982 in either presidential or midterm elections, just 1,600 were proven instances of fraud.

That's .000089%.

But it is true that throughout much of our history, states have prevented U.S. citizens from voting.

A history of voting rights.

Believe it or not, the U.S. Constitution doesn't say who can and can't vote.

Instead, it says that if your state lets you vote in its state house elections, then you can vote in its congressional elections.

Now, Americans have always been able to vote for the House of Representatives, but only since 1913 have we been able to vote for senators.

Before that, they were chosen by state legislatures, the people who write our state laws.

But the reason the Constitution doesn't say specifically who can vote is because its authors couldn't agree.

So the compromise was that it would be left up to each state.

And you might be surprised by who states let vote, at least at first.

For example, after the Constitution took effect in 1789, New Jersey let women vote, although just for two decades.

And of the original 13 states, 10 let free Black men vote; although in North Carolina, they had to own property.

Back then, the only states that limited voting to property-owning white men, AKA 6% of the population, were Virginia, South Carolina, and Georgia.

But over the following 50 years, states began to pass laws to prevent free Black men from voting.

States also began to remove property requirements.

By 1821, only three states still had them.

So, in effect, more white men could vote, but fewer free Black men.

Fast forward to 1865 when the Civil War ended and the 13th Amendment banned slavery.

The 14th Amendment, three years later, made people who were enslaved U.S. citizens and effectively punished states for not letting Black men vote.

And in 1870, the 15th Amendment said that voting rights can't be taken away because of someone's race.

Problem solved?

I'm sorry if you had to find out this way, but that's not quite how the story goes.

Here's where that fine print comes in.

The 15th Amendment says that states can't deny or abridge voting rights to people because of their race, which means you can't lose those rights because you're Black, but it doesn't mean you get them in the first place.

So for the next hundred years, states, primarily Southern ones, exploited this loophole to prevent Black men from voting.

For example, they made them pay a poll tax, a fee you had to pay before casting a ballot.

Given the racial wealth disparity, this had a disproportionate effect.

They also passed literacy tests, which since many formerly enslaved people couldn't read, also acted as a way to gatekeep the voting booth.

Sometimes, these tests ask people to read the Constitution backwards or upside down.

Some had nothing to do with literacy at all, like guessing the number of jelly beans in a jar or bubbles on a bar of soap.

There were also grandfather clauses, which said, "If your grandpa can vote, then you can vote."

And some states were even more explicit and only let white people vote in the primaries, while technically allowing Black men to vote in the general election.

Again, all of these things were designed to skirt around the deny and abridge language in the 15th Amendment, language that also shows up in later amendments regarding voting rights for women, people 18 and older, and more.

So if the Constitution has all these loopholes, then where does our right to vote come from?

Your specific right to vote does come from the Constitution, just not the one you think.

I met with two professors who were total experts on voting rights in state constitutions to learn more: Joshua Douglas, State Constitution Expert from the University of Kentucky, and Richard Hasen, Constitutional Expert from UCLA.

A lot of people are probably surprised to hear that there isn't an affirmative right to vote in the Constitution.

Why isn't there one?

- The founders didn't believe in universal suffrage.

Most people were not allowed to vote.

Women were disenfranchised, slaves were disenfranchised, and African Americans were disenfranchised, even in places where they were not slaves.

- So, if there isn't an affirmative right to vote in the U.S. Constitution, where does our right to vote come from?

- Every state in their Constitution has its own protections for the right to vote, but those were written in very general ways and how much they're enforced and how much protection they give for voters depends upon the way that the state courts have interpreted the Constitution.

- This is a good time to mention that, like the United States and the U.S. Constitution, each state has its own Constitution.

Think about it like the terms and conditions sheet for existing in your state.

This is where your right to vote is spelled out.

To get a better understanding of voting rights and state constitutions, I'm talking with Professor Joshua Douglas at the University of Kentucky.

Professor, why do so few people know what's in their state constitutions, let alone that they even have one?

- I don't think we do a very good job teaching it, but just in terms of kind of the foundational starting place, the state constitution sets up the state government, just like the U.S. Constitution sets up the U.S. government.

So, you know, why do you have a governor in your state?

Because the state constitution creates the Office of the Governor.

- What would you say are the big differences between a state constitution and the U.S. Constitution?

- State constitutions often, and most of them do, set out what we call affirmative rights.

And that's kind of different from the U.S. Constitution because the U.S. Constitution, it recognizes rights, but it does it, for most of them, in the negative.

So what do I mean by this?

The First Amendment of the U.S. Constitution says, "Congress shall make no law abridging freedom of speech."

It doesn't say that we have freedom of speech; it says Congress can't make law that takes it away.

So it sort of assumes that the right is there.

Many state constitutions, by contrast, actually set out the right.

- State constitutions are what initially gave voting rights to property-owning white men, or men without property, or even some women and free Black men.

And they're also what took those rights away from those last two groups well into the 1900s.

Some state constitutions like these let women vote well before the U.S. Constitution protected that right.

State constitutions and state laws are also what implemented poll taxes, literacy tests, grandfather clauses and whites-only primaries.

So, how did this eventually change?

Well, in 1915, the Supreme Court banned grandfather clauses, and in 1944, whites-only primaries.

In 1964, the 24th Amendment banned poll taxes.

And that year and the following, Congress passed the Civil Rights Act and the Voting Rights Act, arguably the two most famous laws in American history.

Among many other things, they outlawed literacy tests, which means voting was finally legal and accessible to American citizens of both sexes and all races for the very first time.

Today, the only group of American citizens who potentially can't vote are felons: people incarcerated, on probation, or on parole.

Depending on the state, they can temporarily or permanently lose their voting rights, unless we're talking about Maine, Vermont, or D.C., which actually let you vote from jail.

And the reason states can do this is because of a loophole in the 14th Amendment, allowing voting rights to be taken away as punishment for a crime, similar to how the 13th Amendment lets slavery still be used as punishment for a crime.

But other than felons, if you're an American citizen and at least 18, you have the right to vote in federal and state elections in every state, except in presidential elections.

We don't have the right to vote for president?

I promise you, I'm not making this up.

In our Constitution, electors, the members of the Electoral College who we learned about in Episode 1, vote directly for president and vice president, and it's up to our state legislature to choose how we pick those electors.

At first, many legislatures pick the electors themselves, and we didn't get any say.

But by 1828, every state besides South Carolina had switched over to a popular vote.

And it works like this.

We vote for president, and whoever wins, their political party's electors pledge to vote for them in the Electoral College.

In other words, you don't vote for president, you vote for people who then vote for president, and you get to vote for those people, thanks to your state's constitution, not the U.S. one.

Because here's the kicker.

The Supreme Court has said that state legislatures, at any time, can take back the power to appoint electors, meaning not letting us vote for president at all and choosing the electors themselves.

In other words, voting for president is just a nice thing our state legislature lets us do.

It's a luxury afforded to us by our state constitution, not the U.S. one.

So what would an affirmative right to vote in the Constitution look like?

What do you think it should say?

- [Richard] If you look at the German Constitution, it says that you know every adult citizen has the right to vote for their parliament.

- Why couldn't it just be a federal law?

Why do we have to enshrine it specifically in the Constitution?

- If you put the stuff in a statute, you leave it to the Supreme Court to say, "Well, that doesn't comply with the Constitution."

When you put it in the Constitution itself, it's much harder to go around that.

- What do you say to people who may not agree with it to convince them that this amendment is needed?

- I point to a case called Carrington versus Rash.

Texas barred military voters from voting in Texas elections on the idea that these were people who were not really citizens of Texas.

It might be that there's gonna be a point in time when both the Democratic Party and the Republican Party see it as in their interest to protect voting rights.

And if that moment comes, then we could have an opening for a constitutional right to vote.

- Which brings me to my final point, one that doesn't just apply to voting.

It's not enough to know what your rights are.

You have to know where they are, at least if you wanna strengthen the rights you have or add new ones.

And this can be really hard to track because a right could be found in the U.S. Constitution, or in a law passed by Congress, or a Supreme Court decision, or in your state's constitution, or state law, or a decision from your State Supreme Court.

Yes, states have their own Supreme Court.

So that's six different places.

And if you throw in executive orders from the president or your state's governor, that's eight places where rights of various levels of strength can be found.

If that process sounds easy to navigate, then I've got a jar of jelly beans that you can help me count.

To sum things up, in the Declaration of Independence, Thomas Jefferson wrote that we are endowed by our Creator with certain unalienable rights.

And to secure these rights, governments are instituted by us.

And if those governments become destructive, meaning they don't secure our rights, then it's our right to alter them, or abolish them, which is what he and his friends did.

So to protect your rights and the rights of the people you care about, you have to know where they're found and where they're not.

So, as a takeaway, in addition to reading the U.S. Constitution, might I recommend you look at your most up-to-date state constitution, which I'm almost positive you've never read or potentially even knew existed before this video.

You can find it online, as well as the U.S. one.

And if you'd like a little help in understanding the U.S. Constitution, might I suggest a book?

You can DM me for details.

I'm Ben Sheehan, and I hope you learn something.

For more episodes of "Civics Made Easy," subscribe to the PBS YouTube channel.

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I promise there are no stupid questions.