The Consent of the Governed and the Right to Vote

City Bar President, Sheila S. Boston

By Sheila S. Boston, President, New York City Bar Association

As we head back to work and school following the summer of 2021, I send my warmest greetings to all as we continue to find our way through the fog of the pandemic in search of a new normal – a better normal, if you will. Between the rise of the Delta variant, the vaccine wars that continue to escalate, the economic hardship the pandemic has wrought, and the growing pains of a society still struggling to accept that all the people within it deserve life, liberty, and the pursuit of happiness in principle, practice, and effect, it can be hard to decide on what to focus. But I think the answer is clear: voting rights. It’s the most fundamental right, the one that makes all our other rights possible. And it’s what can deliver us to a new normal.

Per my request, the City Bar’s Rule of Law Task Force and Election Law Committee graciously accepted the challenge to create a written product which educates, calls for federal legislation, and serves as a call to action for the legal community to serve a central role in the protection of voting rights in this country. The culmination of legal expertise and hard work of these two committees is a report that will be released this week – “The Consent of the Governed: Enforcing Citizens’ Right to Vote.”

Notably, the report begins with this important reminder: Immediately after declaring the “unalienable rights” of “life, liberty and the pursuit of happiness,” the Declaration of Independence states that “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

The consent of the governed. I find myself reading it over and over, trying to fully grasp the breadth of meaning found within a mere five words. It conveys the then-revolutionary notion that our governments exercise power only with our consent. And, I think we can all agree that such consent is determined by how the governed choose their leaders through their votes. So, it must follow, then, that the more people who vote, the better the indicator of consent, and that all eligible citizens must have a full and equal opportunity to vote. We cannot be living in a time when such a statement would be viewed as controversial. Yet, despite the franchise having been expanded over time to include former slaves, women, Native Americans, naturalized citizens, and those who do not own property, the right to vote in America – our very ability to determine the consent of the governed – is at risk as seldom before.

Our report catalogues a startling array of voting suppressive laws that have been enacted since November 2020, including those, most insidiously, that permit state legislatures to override the handling of election results by the public officials designated in their state to do so. It certainly looks as though the mechanisms employed – unsuccessfully – in an attempt to overturn the results of the 2020 election are being reengineered to work in 2024. Implicit in the right to vote is the right to have one’s vote counted properly and accurately. “In our judgment,” we write, “these new laws and legislative proposals collectively constitute a clear and present threat to our democracy, striking at the very heart of our nation’s Constitutional government and treating the ‘consent of the governed’ as an obstacle to be circumvented, overridden, or ignored.”

The current Congress must address these threats. The report discusses the historical background and remedial aspects of two bills currently pending in Congress that would do just that – the For the People Act and the John Lewis Voting Rights Advancement Act – and urges that they be enacted into law, even if that means with modifications necessary to garner sufficient votes. (A modified version of the For the People Act, known as the “Freedom to Vote Act,” was introduced in the Senate on September 14, 2021). This simply must happen. And, if that means making changes to the filibuster rules, the report argues that there are various limited and fair ways to do that.

It is appropriate that the Rule of Law Task Force and Election Law Committee took the lead on drafting this report because the right to vote, far from being a “political” issue as some engaging in sophistry would position it, is the bedrock foundation of our democracy. We must do what we can to make every citizen recognize it as such. In particular, every lawyer, every law firm, every corporate legal department, every law student, every law school, and every bar association must recognize the central relevance of this issue to their profession and raise their voices to stand up for the right to vote. The City Bar will certainly be keeping this front and center, with programming and advocacy in the months ahead, as well as with further statements and reports as events warrant. I hope that you will join us.

Read the report here: