Our founding documents and our Constitution enshrine the right to vote as the pillar of our democracy. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Declaration of Independence 1776
The current crisis with voting rights stems directly from ex-President Trump’s big lies that he won the last election and that the election was stolen from him by voter fraud. In fact, he lost the popular vote by 7 million and the Electoral College vote by 306 to 232. He lost the states of Georgia and Arizona which typically vote for the GOP in presidential elections. This did not reflect a wholesale rejection of GOP candidates who did well in Senate and House races and state legislative races. It was more a personal rejection of Trump due to his personal qualities, particularly in the suburbs and among college educated white voters.
Trump tried to get Republican Governors, Secretaries of State and state legislators in Arizona, Georgia, Pennsylvania, Michigan and elsewhere to over-ride their voters decisions rejecting his candidacy. He tried to persuade federal and state judges to over-ride their state’s voters’ decisions. He tried to persuade the Supreme Court to over-ride the voters’ decisions. He tried to persuade his Vice President to over-ride the voters’ decisions. He tried to persuade Congress to over-ride the voters’ decisions. Ultimately, he called his most dedicated supporters to Washington DC and told them to go to the Capitol and “fight like hell” to over-ride the voters’ decisions which they did at his request. He was unsuccessful in every respect.
However, he has generated widespread distrust among all shades of voters in the fairness of our election systems. Two thirds of American voters are concerned about voter suppression, and 38% lack confidence in the fairness of American elections. https://news.northwestern.edu/stories/2020/12/38-of-americans-lack-confidence-in-election-fairness Democrats and Republicans have become sharply divided about whether to make it easy or hard for their fellow citizens to vote. https://www.pewresearch.org/fact-tank/2021/04/01/share-of-republicans-saying-everything-possible-should-be-done-to-make-voting-easy-declines-sharply/
Voters are now highly motivated, highly partisan, and strongly polarized. https://www.pewresearch.org/fact-tank/2021/10/13/americans-see-stronger-societal-conflicts-than-people-in-other-advanced-economies/ This is good, as politics is a battle of competing ideas about the nation’s future path. We need to respect the battles of ideas in the political marketplace, and we do need to respect our fellow Americans no matter our political disagreements.
This political polarization is unfortunately spilling over into entirely unrelated matters like whether to get vaccinated, to wear a mask, to send children to school safely, to go to work safely, to treat others with respect and dignity, to engage in racial discrimination and physical harassment of others. Even regular school board meetings are being overtaken by threats of violence. These are increasingly destructive to the well-being and future of the entire nation.
Political disagreements should absolutely not be allowed to spill over into the fundamentals of democracy -- whether all citizens can vote and have their votes fairly counted. Election officials and their families are being threatened with physical harm and even death This heads our nation towards physical violence, unchecked tyranny, and if left uncorrected, civil war. The proper role of state and local election officials is to assure that all citizens can vote and that those votes are fairly and accurately counted; it is not to assure that one party or the other wins the election.
Unfortunately, and surprisingly, there has now become a partisan divide about the right to vote. https://www.pewresearch.org/fact-tank/2021/07/22/wide-partisan-divide-on-whether-voting-is-a-fundamental-right-or-a-privilege-with-responsibilities/ Democrats typically think it is a fundamental right and should not be impaired. Two thirds of Republicans think of it as a privilege that can be restricted by government. Black, Hispanic, and Asian voters, who have frequently in the past had their voting rights denied and had to fight for their rights to vote, are more likely to view voting as a fundamental right. Only a little more than half of white voters think that voting is a fundamental right, and a bit less than half think it’s a privilege and can be restricted. Republican voters are far less likely to believe that voters are being denied their rights to vote, and more likely to believe that people who are not eligible to vote are being allowed to do so. The GOP leaders in Georgia, Texas and Florida have recently gone to extreme measures to suppress the votes of those citizens who may be more inclined to vote for Democratic candidates. This needs to be stopped.
We have fought many wars and had many great national debates to establish and preserve, expand and protect our rights to vote, to found our nation, and to build our democracy. They have created the democratic foundations and bulwarks that some Governors and some state legislators now seek to dismantle.
The Revolution
The Revolutionary War was fought to establish the principles expressed in our Declaration of Independence -- “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Declaration of Independence 1776
The precipitating events were the taxes imposed on the colonists by the British Government to pay for the costs of the wars between the British and the French and the American Indians. This was captured under the slogan of the day -- “no taxation without representation”, back then it was the tax on imported tea.
In establishing our new nation, we chose to reject a monarchy; we chose to reject an aristocracy; these were the two models from Europe of that era. We instead decided upon a new representative democracy, an untested model at that time. We drew inspiration from the democracy models and republican forms of government from the Ancient Greeks and Romans. We drew upon the principles of the 18th Century Enlightenment philosophers in England and France. Tom Paine best captured the spirit of our nation’s founding principles – “The true and only basis of representative government is equality of rights. Every man (citizen) has a right to one vote, and no more in the choice of representatives.” Thomas Paine, Dissertation on the First Principles of Government (1795) https://press-pubs.uchicago.edu/founders/documents/v1ch13s40.html We adopted principles of separation of powers, limited government, the rule of law, the rights of man, religious tolerance, individual liberty and equality, and we built them into the US Constitution and the Bill of Rights. These have been the hallmarks of American democracy, although not always so scrupulously adhered to. Our founders made compromises to unify the founding of our country; they understood it was a process, not a finished or immutable product. They expected their successors would improve upon the product as would be necessary.
The Constitution
Initially, the House of Representatives was elected by a direct vote of the people, the Senators were elected by their state’s legislatures, and the President by the Electoral College. After the 17th Amendment in 1913, Senators were elected by a direct vote of the people. The President is elected by popular votes cast on a state-by-state basis. Each state has a vote equal to its total number of Senators and Representatives. Maine and Nebraska allocate some of their voters based on the popular vote winners in each Congressional district. Our Presidential elections are decided by the majority of voters (the popular vote) in each state. The President and some of his disciples tried to get the state legislatures to overrule the popular vote in several swing states during the last election cycle. Some states are now trying to change their laws to allow state legislators or state election officials to overturn the popular vote.
Under Article 1, Section 4 of the US Constitution, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Note two things in that section; Congress is paramount not the states; it nowhere says who gets to vote and who does not.
So who gets to vote in US elections? It was not clear in 1787 since the Constitution left that decision to the states in the first instance and ultimately to Congress. The US Constitution now answers that question quite clearly and unambiguously. Basically, it’s US citizens (other than convicted felons) over the age of 18 who are registered to vote, no discrimination based on the color of one’s skin, race, sex, age or wealth.
The 15th Amendment specifies:
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 Congress shall have power to enforce this article by appropriate legislation.
The 19th Amendment specifies:
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.
Congress shall have power to enforce this article by appropriate legislation.
The 24th Amendment specifies:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.
The Congress shall have power to enforce this article by appropriate legislation.
The 26th Amendment specifies:
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
The Congress shall have power to enforce this article by appropriate legislation.
Property limits on voting
In the earliest days of our nation (before 1800), some states limited the franchise to property owning white males. This reflected the distrust that James Madison, Alexander Hamilton and others shared about voting by the masses; however they also and equally distrusted limiting voting to the elite acting in their own interests. https://www.loc.gov/classroom-materials/elections/right-to-vote/the-founders-and-the-vote/ and https://www.dhr.history.vt.edu/modules/us/mod03_rev/evidence_detail_13.html Thomas Jefferson expressed his opposition to these limits on the right of suffrage pungently. "The fool has as great a right to express his opinion by vote as the wise, because he is equally free, and equally master of himself." --Thomas Jefferson: Address to the Cherokee Nation, 1809. ME 16:456
In state after state, these early restrictions on voting by the property-less were eliminated; Vermont and New Hampshire were among the first states to do so. By 1830, most of the property owning or tax paying restrictions on voting had been eliminated; by 1860, all states had eliminated them. https://collections.leventhalmap.org/search/commonwealth:q524n3142 This movement to expand the franchise was associated with the rise of Jacksonian democracy which strongly favored universal suffrage -- at least for all white males. https://en.wikipedia.org/wiki/Jacksonian_democracy Whereas on other fronts, such as the treatment of Native Americans and rights for Black Americans, Jackson and his successors were far more retrograde.
Religious restrictions on voting
Many of the early settlers had fled the religious wars in Europe between Protestants and Catholics and such horrors as the Inquisition where non-believers were tortured and burned at the stake. In some states before and after the American revolution, the new settlers then proceeded to place restrictions on Jews and Catholics’ rights to vote. https://momentmag.com/could-jews-vote-in-early-america/ States like Rhode Island and Pennsylvania stood out for their support of religious tolerance, while Massachusetts early on symbolized religious intolerance. https://www.facinghistory.org/nobigotry/religion-colonial-america-trends-regulations-and-beliefs Our framers of the US Constitution took a strong stand in support of religious tolerance, for the separation of church and state, and against state supported religions. https://www.facinghistory.org/nobigotry/religion-colonial-america-trends-regulations-and-beliefs It guaranteed freedom of religion to all, and it prohibited religious tests on the ability to hold federal offices. Maryland in 1828 was the last US state to guarantee the rights of Jews to vote in their state’s elections. https://tjpnews.com/jews-and-voting-rights/
African American Voting
In the immediate aftermath of the American Revolution, the rights of black freemen to vote were expanding. https://www.yourvoteyourvoicemn.org/past/communities/african-americans-past/african-american-voting-rights-civil-war/revolutionary-war After 1800, in contrast to the expansion of rights to vote for white Americans, states began cutting back on the rights of free black American citizens to vote, such that by 1855 only five states (Maine, Massachusetts, Rhode Island and Vermont) allowed free black men to vote. https://www.yourvoteyourvoicemn.org/past/communities/african-americans-past/african-american-voting-rights-civil-war/right-vote-expands Pennsylvania, for example, changed its charter to exclude black freemen voting; likewise, New Jersey changed its laws governing the franchise to exclude both women and free blacks from voting.
Many of the nation’s Founding Fathers were strongly opposed to slavery, and a substantial number worked hard to eliminate it. Hamilton, Franklin, and Jay were all very active in the efforts to end slavery; Washington, trying to set an example for the South, left a will freeing their slaves upon the deaths of his wife and himself. https://thehill.com/changing-america/opinion/506782-anti-slavery-revolutionaries-who-practiced-what-they-preached
Before the American Revolution, slavery had been present in all 13 colonies; afterwards, it was eliminated in the states of the North. In the case of Quock Walker in 1783, the Massachusetts Supreme Judicial Court decided that slavery was unconstitutional under the Massachusetts Constitution, which echoed the extraordinary sentiments expressed in the Declaration of Independence. “. . . . [T]hese sentiments [that are favorable to the natural rights of mankind] led the framers of our constitution of government - by which the people of this commonwealth have solemnly bound themselves to each other - to declare - that all men are born free and equal; and that every subject is entitled to liberty, and to have it guarded by the laws as well as his life and property. In short, without resorting to implication in constructing the constitution, slavery is in my judgment as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence. The court are therefore fully of the opinion that perpetual servitude can no longer be tolerated in our government.” https://www.mass.gov/guides/massachusetts-constitution-and-the-abolition-of-slavery
In the South by contrast, slavery expanded vastly in conjunction with the meteoric growth of the cotton industry after 1800. It was not just cotton, but tobacco, rice, sugar cane and other Southern crops; it was not just crops, but domestic services and skilled artisan jobs as well that were performed by the slaves. Southern politicians fought fiercely to preserve the economic engine of slavery, which undergirt the prosperity of the South’s plantation economy. The enslavement of black Americans by southern White plantation owners and its expansion or its abolition became the defining issue dividing the nation by the 1850’s. An entire industry, an entire region, and a very large part of the nation’s economy was defined by the issue of enslaving other human beings based on the color of their skin.
The Civil War
The Civil War was fought between Southerners seeking to secede from the union so that they could retain the right to enslave other human beings and Northerners seeking to preserve the union. After enormous loss of lives and an unconditional surrender by General Robert E Lee at Appomattox Court House, Congress and the states adopted three constitutional amendments that now serve as the backbone of our nation. The 13th Amendment ended slavery or any other form of involuntary servitude of human beings. The 14th Amendment assured the citizenship of all persons born or naturalized in the US; it extended the guarantees of equal protection of the laws and due process assurances to all persons in every state. It forbade state governments from abridging the privileges and immunities of any citizen. It also reduced a state’s representation in Congress if they denied or in any way abridged the right to vote of any male citizens over the age of 21 (except those participating in rebellion or felonious crime). The 15th Amendment barred states and the federal government from denying or abridging citizens’ rights to vote in federal and state elections based on their race, skin color or previous conditions of servitude.
After the war, President Lincoln was assassinated, and certain leading Confederate army officers, such as General Nathan Bedford Forrest, formed the Ku Klux Klan and began a terrorist campaign of killing, burning, beating, lynching, and massacring local blacks and their white Republican allies throughout the South. The Department of Justice was formed to prosecute those involved in the terror campaign, and federal troops were sent to the South by President Grant to stop the violence and permit black citizens to vote and live their new lives in safety as free men. Congress passed the Ku Klux Klan Act to allow federal prosecutions of those involved in the terror campaign. Although the power of the 1860-70’s Klan was broken, the political will in the North to prevent atrocities against black citizens in the South eventually ebbed, and after the disputed election of 1876, federal law enforcement and protection of the Constitutional rights of its black American citizens living in the South disappeared for the next 80 years.
A series of local and state barriers to black voting were developed – literacy tests, white only primaries, poll taxes, grandfather clauses – to prevent black voting in Southern states. Read Williams v. Mississippi 170 US 213 (1898) if you have forgotten or never learned about the voting abuses of this era and the extent to which Mississippi politicians went to keep blacks from voting. https://tile.loc.gov/storage-services/service/ll/usrep/usrep170/usrep170213/usrep170213.pdf The voting restrictions were reinforced by segregation laws that obstructed black citizens access to public education, public transportation, public housing, drinking fountains, public parks, restrooms, jobs, swimming pools, restaurants, motels and other vital services and prohibited intermarriage between human beings of different skin colors. By 1940 on the eve of World War II, only 3% of adult blacks in the South were registered to vote. https://www.crf-usa.org/black-history-month/race-and-voting-in-the-segregated-south
Women’s rights to vote
Beginning in 1848 at the Seneca Falls Convention, women began a broad-based reform movement for women’s rights, that included women’s suffrage. Their Declaration of Sentiments proclaimed the following:
· Married women were legally dead in the eyes of the law
· Women were not allowed to vote
· Women had to submit to laws when they had no voice in their formation
· Married women had no property rights
· Husbands had legal power over and responsibility for their wives to the extent that they could imprison or beat them with impunity
· Divorce and child custody laws favored men, giving no rights to women
· Women had to pay property taxes although they had no representation in the levying of these taxes
· Most occupations were closed to women, and when women did work, they were paid only a fraction of what men earned
· Women were not allowed to enter professions such as medicine or law
· Women had no means to gain an education since no college or university would accept women students
· With only a few exceptions, women were not allowed to participate in the affairs of the church
· Women were robbed of their self-confidence and self-respect, and were made totally dependent on men. https://nationalwomenshistoryalliance.org/history-of-the-womens-rights-movement/
Under old English common law named coverture or couverture, married women were denied the right to contract, to own property, and to work outside the home without their husband’s approval. The legal theory was that the married couple were one and the one was the husband, and he was in full legal control of everything, including his wife’s body. If this sounds like the Taliban in Afghanistan (or some evangelical preachers in the US), you would not be far off.
It took 72 years before women won the right to vote with the adoption of the 19th Amendment in 1920. Women were sent to jail, went on hunger strikes, were beaten, threatened and spat on by those opposed to the right to vote. They lost in the Supreme Court and in many legislative battles before finally prevailing; they lost their lives in tragedies like the Triangle Shirt Waist Factory fire; they persisted. The earliest victories for women’s suffrage were in sparsely populated frontier states like Wyoming and Montana, Idaho and Utah. The battle for women’s suffrage was fought state by state, and at a national level, and then again at the state level for ratification of the 19th Amendment. It involved alliances with temperance groups, labor, churches, African American leaders beginning with Frederick Douglas who attended the founding Seneca Falls Convention, and the era’s progressive movements. It finally succeeded in the aftermath of World War 1 during which women worked in the factories, the fields, the army hospitals, and many other front-line jobs supporting the nation’s war efforts. Many of the other elements of the women’s reform movement were not achieved until the second wave of activism beginning in the 1960’s through today. Elements from the 1848 Convention are still being debated and fought including passage of the Equal Rights Amendment, adequate childcare, equal pay, and women’s control over their own reproduction.
Native Americans rights to vote
Our nation was built on dispossessing, killing, massacring, and confining to reservations the Native Americans who had lived here for over 12,000 years. Needless to say, we also denied them citizenship and the rights to vote. https://constitutioncenter.org/blog/on-this-day-supreme-court-says-tax-paying-indians-cant-vote In the particularly egregious Supreme Court decision of Elk v. Wilkins, 112 US 94 (1884), the US Supreme Court held that a resident of Omaha, Nebraska of Native American descent had no right to vote because he had been born on a reservation and therefore could not become a US citizen, absent naturalization. Justice John Marshall Harlan in dissent, points to the 14th and 15th Amendment and the 1866 Civil Rights Act as guaranteeing citizenship and voting rights for Native Americans who were not living on tribal reservations (reservations governed by tribal sovereignty). The follow up legislation under the Dawes Act of 1887 gave Native Americans the right to become US citizens but only if they took individual ownership of a share of the tribal lands; in other words, it broke up tribal reservations where tribes held land ownership in common in exchange for citizenship and voting rights. In 1924 after World War I, Congress enacted the Indian Citizenship Act, which confirmed that all Native Americans no matter whether they lived on reservations or not were US citizens and had the rights to vote for the elected officials of their choice.
Six states nevertheless continued to deny Native Americans the right to vote. After World War II, in the case of Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456 (1948), the Arizona Supreme Court overturned its earlier decisions disqualifying Native Americans from voting based on the “guardianship” principle (that Native Americans living on reservations were under US guardianship). https://casetext.com/case/harrison-v-laveen In a comparable case (Trujillo v, Garley, 1948) a three-judge federal district court over-ruled the provisions of New Mexico’s Constitution which were being used to deny Native Americans their rights to vote. https://www.intermountainhistories.org/items/show/251 See discussion of the significance of the case in the context of the Native American movement for respect for tribal sovereignty at https://digitalcommons.odu.edu/cgi/viewcontent.cgi?article=1044&context=history_etds This was not the end of it, in a disputed election in 1962, the loser of the race for Lieutenant Governor challenged whether Navajo Indians living on the reservation were residents of New Mexico entitled to vote. The New Mexico Supreme Court in a lengthy analysis of Native American rights concluded that yes, they were entitled to vote, and their votes had to be counted. Montoya v. Bolack (1962) https://www.casemine.com/judgement/us/59149c31add7b0493463fd71 Native Americans were still denied voting rights based on literacy tests, language tests, and poll taxes until the reforms of the Voting Rights Act of 1965 abolished them.
Asians’ rights to vote
The Chinese came to the US starting in the 1850’s for the Gold Rush and then the building of the Transcontinental Railroad. Anti-Chinese sentiment was stirred up first in California and spreading throughout the Western US, claiming they were depressing wages and taking jobs from whites. Chinese were beaten and killed and herded into Chinatowns. This led to the passage of the Chinese Exclusion Act of 1882; it not only forbade immigration of new Chinese immigrants, but it denied naturalization and citizenship and voting rights to those Chinese already living and working here. These exclusions were steadily extended and expanded until eventually the Act was repealed in 1943 in the middle of World War II when we were allied with the Chinese against the Japanese.
The Japanese immigrants faced similar exclusions and restrictions on their rights to naturalize and become citizens, to own property or pursue careers and economic opportunities. https://history.house.gov/Exhibitions-and-Publications/APA/Historical-Essays/Exclusion-and-Empire/First-Arrivals/ I hope you will take a moment to read Ozawa v. United States, 260 US 178 (1922) https://www.law.cornell.edu/supremecourt/text/260/178 holding that only free white Caucasian persons and Africans can be naturalized. Rising tensions between the US and Japan over immigration exclusions were part of the buildup to WW II, and Japanese Americans were then rounded up and held in internment camps during WW II – a fate not comparably experienced by German Americans or Italian Americans during the war. The McCarran Walter Act of 1952 finally repealed the exclusion of Asians from immigration and Naturalization; however, it adopted a formula for country-by-country quotas that continued discrimination in immigration based on one’s country of national origin. Finally in the Immigration and Naturalization Act of 1965, discrimination in the nation’s immigration and naturalization policies was banned – “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.”
Mexican Americans rights to vote
Mexico fought a war, really it was a series of wars with invading American settlers starting in Texas and then in California, and then with the US back in the 1830’s and 1840’s. Big parts of what had been Mexico, including California, Arizona, Texas, Colorado, Utah, Nevada and New Mexico, were acquired by the US. Under the treaty of Guadalupe Hidalgo ending the war, the Mexican and Native American inhabitants of these previously territories became US citizens. A variety of obstacles were established in Texas, California and the Southwest to prevent voting by the new US citizens of Latino descent – including poll taxes, literacy tests, English language requirements to vote. https://www.azcentral.com/story/news/politics/arizona/2020/09/13/arizonas-history-suppressing-black-latino-native-american-voters/5771359002/ After all of these obstacles to Latino voting were made illegal by the Voting Rights Acts of 1965 and 1975, voter suppression tactics switched to ID requirements, intimidation, and closures of and changes in convenient local polling places. Even the distinguished Supreme Court Justice William Rehnquist had established and participated in voter suppression tactics (caging) aimed at Latino and black voters in Arizona under the auspices of a program called “Eagle Eye”. https://www.nypl.org/sites/default/files/wang_-_chapter_4.pdf Voter suppression was the tip of the iceberg for Latinos’ experience living in the US; lynching, forced deportations of US citizens, mob violence, segregated schools were far too commonplace. In immigration raids in California and the Southwest, US citizens of Mexican descent were rounded up and shipped across the border to Mexico. https://www.history.com/news/the-brutal-history-of-anti-latino-discrimination-in-america
Impacts of First and Second World Wars on voting rights
The First and Second World Wars were fought to save democracy. It was hypocritical, to put it mildly, to ask soldiers to fight for the democratic values of their nation, then tell them they could not vote when (if) they returned. So, when African American, Native American, Asian American, and Mexican American soldiers returned home from the war to face systemic discrimination in voting, housing, education, and other public services, they challenged them in the courts, in the legislatures, and in protests on the streets. The great civil rights movements of the 1950’s and 1960’s had their roots in churches, in unions, in the returning war veterans, in the patriotic sentiments and universal sacrifices of the nation during the war effort and in the horrors of Nazi Germany and the Holocaust. The US was on the defensive about its racism, segregation and denial of basic human rights for its own citizens at exactly the same time it was trying to appeal to the nations newly emerging from the overthrow colonialism and western imperialism throughout Africa and Asia. The US was in a competition of ideas, ideologies and ideals throughout the world with the rise of communism throughout Europe, Asia, Africa, Central and South America.
Progress
The courts were the first to breach the barriers of racial segregation in education, housing, and other public services. Courts in Arizona and New Mexico struck down the state barriers to Native American voting. The entrenched political power of the Southern Democrats using the filibuster blocked any Congressional action to secure voting rights. Whites and blacks were beaten, jailed, harassed, and killed when they sought to register black voters or integrate public educational institutions. Local law enforcement in too many communities was complicit with the resurgent Ku Klux Klan in a renewed terror campaign against local black citizens. After the killings and beatings of demonstrators and civil rights organizers trying to help people to register and to vote, and the assassination of President Kennedy in Dallas, Texas, Congress and Johnson Administration finally summoned the will to break the filibuster by Southern Democrats in the Voting Rights Act of 1965. This was a bi-partisan bill of Republicans and Northern Democrats enacted over the deeply entrenched powers of Southern Democrats who fought it with every legislative obstacle imaginable. The cloture vote in the Senate was 70-30; the final bill passed 79 to 18 (Democrats were split 49-17; Republicans were nearly unanimous 30-1).
The original Voting Rights Act of 1965 prohibited specific state actions like a literacy test that had been used to deny African Americans and others their rights to vote; it also included blanket provisions to prevent racial discrimination in voting (Section 2), and it adopted a pre-clearance procedure for states with a demonstrated history of racial discrimination that wanted to change their voting laws (Section 5). It was amended on a bi-partisan basis in 1970, ‘75, ‘82, ‘92 and 2006 to expand the scope of its protections and to overrule Supreme Court decisions that limited its reach. For example, after the US Supreme Court in Mobile v. Bolden 446 US 55 (1980) held that Section 2 only outlawed intentional discrimination, Congress in the 1982 amendments to the Voting Rights Act clarified that Section 2 applied to the totality of state actions with a discriminatory impact on minority voting rights. https://www.justice.gov/crt/section-2-voting-rights-act#sec2
Poll taxes
Poll taxes were abolished by the 24th Constitutional Amendment. These were flat per capita taxes that were established in the late 19th Century throughout the South, as a way to keep African Americans from voting. If you did not pay the poll tax, you could not vote. In 1962, Congress passed the 24th Amendment abolishing the poll tax, and it was quickly ratified in all but the Southern states and took effect in 1964, but only for federal elections. Virginia was one of 5 Southern states that continued to use the poll tax to qualify and disqualify voters for state elections. The Supreme Court in Harper v. Virginia Board of Elections 383 U.S. 663 (1966) held that poll taxes violated the Equal Protection Clause of the 14th Amendment in state and local elections. The court over-ruled its earlier precedent in Breedlove v. Sullivan and held “The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races." Id. at 377 U.S. 568. We say the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it.”
Reapportionment
In its landmark decision in Reynolds v. Sims, 377 U.S. 533 (1964), the Supreme Court invalidated state reapportionment schemes that violated the constitutional principle of one man one vote. States had originally designed their electoral districts when most people lived on farms, and then they had not changed them as people moved into fast growing industrial cities; this preserved and enhanced the powers of rural voters at the expense of urban voters. For example at the time, “in the Utah State Legislature, the smallest district had 165 people, the largest 32,380. In the Vermont General Assembly, the smallest district had 36 people, the largest 35,000. Los Angeles County, California, then with six million people, had one member in the California State Senate, as did the 400 people of Alpine County.” https://en.wikipedia.org/wiki/Reynolds_v._Sims As Chief Justice Earl Warren speaking for an 8-1 majority said “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. ... And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.” Reynolds v. Sims, 377 U.S. 533 (1964)
The unanimous Supreme Court held the Alabama Legislature could not draw district lines to disadvantage of African American voters. Gomillion v. Lightfoot, 364 US 339 (1960) Gomillion was the first of many successful challenges to racial gerrymandering. The Supreme Court twenty years later in Mobile v. Bolden, supra, held that plaintiffs must show a racially discriminatory intent under the Voting Rights Act. Congress then in the 1982 amendments to the Voting Rights Act decided that the proper standard was a racially discriminatory impact.
Age
At the height of the Civil Rights movement, Presidents Kennedy, Johnson and Nixon decided to intervene against a guerilla insurgency, really a civil war, in the far away country of Vietnam. They cited the need to protect democracy (in a nation without a democracy and with rotating governments installed by the US) from the surge of communism in Southeast Asian nations. Many young Americans too young to vote were conscripted and sent to fight this war. Many Americans of all ages, but particularly young college students, rebelled against the senseless slaughter, the lies and the weak justifications for the war. In 1972, Congress passed the 26th Amendment stating that persons over age 18 may vote in federal elections; states may not discriminate based on age; the states promptly ratified; President Nixon signed it, and it was in effect for the 1972 federal elections. Some state and local election officials have continued to make it hard for college students to vote, raising questions of proper state residency and refusing to accept college student ID’s as proper identification documents. Imagine the California college students whose parents live in New York City and may be paying part of the tuition; where does the student live and vote. Congress enacted subsequent legislation to make it easier for elderly and disabled persons living in institutional settings like nursing homes to vote. They have yet to take any action(s) to protect the voting rights of college students. Older voters are now far more likely (76%) than young voters (51%) to participate in elections. https://www.census.gov/newsroom/press-releases/2021/2020-presidential-election-voting-and-registration-tables-now-available.html
There has been a lot of effort in some states to encourage voting by young voters, including opportunities for early voting registration. There was a big increase in youth voting in the 2020 presidential election; however, it was particularly low (32%) in South Dakota and quite high (62%) in Colorado; those states which made the greatest efforts to encourage youth voting had much higher participation rates. https://circle.tufts.edu/latest-research/half-youth-voted-2020-11-point-increase-2016
Rights to Vote for US Citizens living in US Territories and Washington DC
In 1961 with the passage of the 23rd Amendment, Washington DC citizens got the right to vote in presidential elections; they have three votes. However, they still have no voting representation in either the US Senate or House of Representatives. US citizens residing in Puerto Rico, the US Virgin Islands, American Samoa, the Northern Mariana Islands, and Guam have no right to vote for President, Senators or US Representatives (voting) in federal elections. That’s 3.5 million American citizens in all. You have probably never heard of the Insular Cases; they were decided in 1901 and basically held that the US Constitution applies only in part, and definitely not in full, to the islands like Puerto Rico and Guam, acquired by the US as part of the Spanish American War, and to the islands like the US Virgin Islands purchased from Denmark in the lead up to the First World War. https://www.yalelawjournal.org/forum/after-aurelius-what-future-for-the-insular-cases This was during a period of time when the US was empire building across the Pacific and throughout the Caribbean. We had also acquired Alaska and Hawaii, and we were fighting an insurgency in the Philippines because many native Filipinos did not wish to be joined against their will to the growing American empire. The Supreme Court in Downes v. Bidwell 182 US 244 (1901) had to decide whether the provisions of the US Constitution regarding uniformity of taxation applied to the newly acquired territory of Puerto Rico. The 5-4 majority opinion created the fiction of “unincorporated territories” which were not fit to become states and “incorporated territories” which possessed the sorts of attributes which would make them fit to become states at some point in the future to be determined by Congress. Puerto Rico’s status as a Spanish speaking colony with many devout members of the Catholic religion and a darker hue of skin color was clearly troubling to the court’s majority as to whether Puerto Ricans would ever be fit for statehood, and in the background lurked a concern by the justices that the Philippines was even less appropriate for becoming a US state. The court’s majority, however, was clearly persuaded of the need for strategic global assets such as the Panama Canal Zone or coaling stations across the Pacific to support American commerce. Justice Harlan’s dissent was straightforward, if these territories are acquired by whatever means as US territories, the protections of the US Constitution apply. As to whether to admit them as states and to give voting rights in federal elections, both majority and the dissenters agreed that this was a political decision best left to Congress. I would suggest that 120 years as a US territory is plenty enough time for Congress to decide to admit these US citizens to the full rights of US citizenship including participation in federal elections deciding our common futures.
Felon voting rights
Another group that is disenfranchised are convicted felons – an estimated 5 million US citizens. https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/ African American males bear the highest burdens of disenfranchisement due to felony convictions. https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/ State policies vary from “they may vote while in prison” (Vermont and Maine) to “they may never vote again” (Kentucky and Virginia). https://www.aclu.org/issues/voting-rights/voter-restoration/felony-disenfranchisement-laws-map Most states allow felons to recover their voting rights either after they have served their prison terms, or after prison, parole and probation have been completed. https://felonvoting.procon.org/state-felon-voting-laws/ Florida voters passed Amendment 4 with nearly a 2/3rds vote to allow felons, other than murderers and persons convicted of sex crimes, to regain the franchise after their prison term, plus probation and parole terms had been served or expired. The Florida legislature and Governor, concerned about losing elections due to the increased voting rights for felons who had served their time, then tacked on a requirement that all fees, fines and court ordered restitution must also be paid, thereby disenfranchising about a million Florida citizens before the last election. https://felonvoting.procon.org/state-felon-voting-laws/ The Supreme Court and the 11th Circuit upheld the Florida legislature’s actions against the claim that it was a poll tax or wealth tax in violation of the 24th Amendment. https://www.npr.org/2020/07/17/892105780/supreme-court-deals-major-blow-to-ex-felons-right-to-vote-in-florida North Carolina state courts are considering challenges to voting rights for felons who have completed their probation and parole but have unpaid court costs or fines – about 56,000 persons. https://www.democracydocket.com/alerts/north-carolina-supreme-court-rolls-back-voting-rights-win-for-former-felons/
In Richardson v. Ramirez 418 US 24 (1974), the Supreme Court in a 6-3 majority decision held that Section 2 of the 14th Amendment allowed states the latitude to restrict felons from voting. Re-reading the dissenting opinion of Justice Marshall, it seems to me that he has the stronger argument, that the phrase “rebellion or other crime” in Section 2 of the 14th Amendment was linked to the efforts of Congress to deter the ex-Confederate states from excluding African-Americans from voting after the Civil War. It is now being used in conjunction with mass incarceration to reduce and dramatically diminish African American male voting in the ex-Confederate states -- the very obverse of the amendment’s intention. See Figures 3 and 5 in https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/
The Supreme Court backsliding
The Supreme Court has lately become an arm of the GOP, rather than the stalwart defender of American voters and our democracy. In Bush v. Gore 531 US 98 (2000), it interfered with the counting of the ballots in Florida to hand the presidential election to George Bush. Bush was ahead by 327 votes, and there were outstanding challenges to the vote count and ballot irregularities in places like Palm Beach County, Broward County and Miami/Dade County; the Florida Supreme Court ordered a manual recount in the contested counties; the Supreme Court enjoined the recount and awarded the state’s vote to candidate Bush. Chief Justice Rehnquist joined by Justices Alito and Thomas put forward an unsupported theory that the state legislature (not the courts nor the executive) is the fount of all power in elections. https://www.propublica.org/article/why-bush-v-gore-still-matters
In 2020 Trump and his legal team ran with this theory in their efforts to persuade state legislators and state executives to overturn his electoral defeat – i.e. the decisions of a state’s voters can be thrown out by the state legislature. When the state of Texas sought to throw out the votes of all the swing states that Trump lost in 2020, that was a bridge too far for all nine justices. https://www.supremecourt.gov/orders/courtorders/121120zr_p860.pdf
In Shelby County v. Holder, the Supreme Court held that Section 5 of the Voting Rights Act was unconstitutional. https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf That section applied pre-clearance review by the Department of Justice to restrictions on voting rights in states with a sustained history of suppressing minority voters. The Supreme Court’s reversal was based on two factors: 1) all states should be treated uniformly, and 2) conditions had changed over the past 50 years and the singling out of certain states for pre-clearance had to be justified by up-to-date data and findings, not by data and findings and a coverage formula from the early 1960’s when racial discrimination was pervasive. Freed of federal oversight, states immediately sought to curtail voting rights. https://www.brennancenter.org/our-work/policy-solutions/effects-shelby-county-v-holder And immediately thereafter, minority voters’ participation in federal elections fell sharply in 2016. https://www.hks.harvard.edu/research-insights/policy-topics/politics/impacts-voting-rights-act-and-supreme-courts-shelby-ruling
In Brnovich v. DNC 594 US --- (2021) https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf, the Supreme Court upheld two Arizona voting rights restrictions against a claim they violated Section 2 of the Voting Rights Act. The restrictions in question were disqualification of one’s ballot for voting in the wrong district on election day and for having someone other than an immediate family member drop off your ballot at the spot(s) designated for ballot collection. Justice Alito, writing for the majority found the adverse impacts on assuring opportunities for minority voting were de minimis given that Arizona also offered mail in ballots and 30 days of early voting, and that the racial animus expressed by the legislation’s chief proponent should not be imputed to the rest of the Arizona legislature who voted for the restrictions. He emphasized the enormous progress achieved under the Voting Rights Act in eliminating racial discrimination in voting and was not concerned with its vestiges nor the rise in state’s efforts to suppress voting post the Shelby County decision. In the dissent, Justice Kagan pointed out the enormous difficulties of travel and the extremely poor mail service for Native Americans on the Navajo Indian reservation, to the highly disproportionate impact on minority voters of disqualifications for out of precinct voting, and to the frequent changes of voting precincts in minority neighborhoods. She noted that Arizona alone accounts for 1/3rd of all ballots disqualified for out of precinct voting in the nation, that Arizona disqualifies ballots for out of state voting at 11 times the rate of the second-place state, and she pointed out that most other states do not penalize out of precinct voting by disqualifying the voter’s entire ballot. Finally, she noted the narrowness of the recent Presidential election in Arizona and the impacts of even modest restrictions on election results, the cumulative impacts of discrimination against Native Americans, and the growing efforts by many states to suppress voting post the Shelby County decision.
Soldiers voting
In 2001 in response to the New York City bombings of the World Trade Center and the Pentagon, the US began a war against Al Qaeda in Afghanistan, which we then chose to spread to Iraq, Yemen, Somalia, to other hot spots of Al Qaeda and then to ISIS, including Syria, Iraq and Mali. This war has continued over twenty years, and it was fought by a paid professional army, rather than by the conscripted and volunteer army of Vietnam. Our armed forces now comprise nearly 45% minorities. Hispanics are the fastest growing share of the military and non-Hispanic whites are a steadily declining share of the military. Non-citizens (legal permanent residents) comprise about 35,000 members of the US military, with the largest numbers coming from Mexico and the Philippines. https://citizenpath.com/immigrants-military/ They can be eligible for expedited naturalization on completing their service. https://www.military.com/join-armed-forces/eligibility-requirements/the-us-military-helps-naturlize-non-citizens.html
While individuals are in the military and out of the country, governments must make special arrangements to assure they are able to vote and to have their votes fairly counted. In 2020, less than half of military troops serving overseas voted; better information and improved assistance to young military voters could and should improve the poor turnout. One fifth of military voters stationed overseas reported that they tried to vote in 2020, but were unable to successfully do so. https://electionline.org/electionline-weekly/?utm_medium=email&utm_campaign=November%2011%202021&utm_content=November%2011%202021+CID_fb98e93380dc0e59d61475d94c172939&utm_source=Campaign%20Monitor&utm_term=Read%20More#tab-1 One might ask what these men and women are going to say and do when they return from overseas service and find their families, friends and communities are also confronting severe obstacles in certain states to exercising their franchise to select the elected representatives of their choice. Maybe it’s time for the US military establishment and state and local governments to fix this disgraceful mess.
Immigrants and voting
Legal permanent resident immigrants cannot vote unless and until they become naturalized citizens. There are roughly 45 million immigrants living in the US – about 14% of the nation’s population. This is roughly the same percent of the US population as during the 1890’s and early 1900’s. About one million individuals from across the globe are admitted with legal permanent residency each year, and about 800,000 became naturalized citizens in 2018.
Over twenty million immigrants are naturalized citizens and can vote; 12 million are legal permanent residents and cannot vote unless and until they are naturalized, at least 5 years after they have their legal permanent residency, and 11 million are undocumented workers, many have lived in this country for long periods of time and often they live in the shadows and under constant fear of deportation. Immigration patterns to the US are shifting, with the plurality now coming from Asia rather than from Central America and Mexico. Immigration is increasingly critical to maintaining the US labor force as US birth rates have declined precipitously, and boomers are aging and retiring. https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/ Eligible immigrant voters have doubled in the last twenty years, and they are concentrated in a handful of large states, California, Texas, Florida and New York. https://www.pewresearch.org/hispanic/2020/02/26/naturalized-citizens-make-up-record-one-in-ten-u-s-eligible-voters-in-2020/
Immigrants encounter a great deal of hostility, physical harassment, violence and discrimination from groups and individuals with nativist and white supremacist leanings. Ex-President Trump and many of his associates and disciples have been in the forefront of fomenting this hostility, but the hostility has deep roots back to and before the Know-Nothings of the 1850s, which harnessed anti-immigrant, anti-Catholic and anti-Semitic sentiments in their rise to political influence. Today’s vilification and harassment of Latinos, Asians and immigrants generally has had two opposing impacts on voter turnout for immigrants; both deterring it and spurring it to such a degree that voting among naturalized citizens of Asian and Latino backgrounds recently surpassed voter turnout among US born citizens and Asian and Latino descent. https://www.pewresearch.org/hispanic/2020/02/26/naturalized-citizens-make-up-record-one-in-ten-u-s-eligible-voters-in-2020/ Two thirds of Americans have a positive view of immigrants and immigration, and only 24% believe they are a burden, taking away jobs and costing government to educate them and pay for their health care, but there is a wide split by party affiliation – 88% of Democrats and 41% of Republicans believe immigrants benefit the nation through their hard work and talents. https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/
We now have a class of people who can’t vote but must and do pay taxes, who work in the lowest paid, riskiest jobs but do not qualify for most public benefits. They have been doing the essential jobs during the pandemic with little to no protection when they and their family members get sick. This is not healthy in a democracy; it’s a return to medieval serfdom, albeit with the difference that these workers are not tied to the land. The right path forward is legalization for those undocumented workers who are here for the long term, and a path for them to seek legal status, and then towards naturalization and citizenship if they choose. As a nation, we are not about to round up and deport 11 million fellow human beings. We must begin to regularize the status of undocumented workers and to do so in conjunction with more effective border controls and deportation procedures. One would hope that now is the time to do so. Congress, not the Executive or the courts, must make these changes, but the polarization between the party positions on this issue is extreme. And the legislative hurdles are high due to Senate filibuster and budget reconciliation rules. President Bush tried but failed to get the votes in the Senate; President Obama tried but failed to get a hearing for the bill in the House even after it passed the Senate. President Biden is seeking to build necessary bi-partisan consensus in a Congress polarized by the extreme wings of the parties and still highly dysfunctional from the toxic messaging and behavior of our past President. We cannot even make the necessary progress to regularize the status of the Dreamers, even though 74% of public favors such action. https://www.pewresearch.org/fact-tank/2020/06/17/americans-broadly-support-legal-status-for-immigrants-brought-to-the-u-s-illegally-as-children/ The last President to make meaningful progress was President Reagan in 1986 with his signing of IRCA, OBRA and SLIAG, which opened a path to legal status for 3 million undocumented workers and helped to pay for emergency and maternity care for some of the low income undocumented. “Upon signing the act at a ceremony held beside the newly-refurbished Statue of Liberty, Reagan said, "The legalization provisions in this act will go far to improve the lives of a class of individuals who now must hide in the shadows, without access to many of the benefits of a free and open society. Very soon many of these men and women will be able to step into the sunlight and, ultimately, if they choose, they may become Americans.’" Reagan, Ronald. (November 6, 1986) Statement on Signing the Immigration Reform and Control Act of 1986. Collected Speeches, Ronald Reagan Presidential Library. Retrieved August 15, 2007. We will need to replace the diehard opponents in Congress who are blocking federal legislation to implement the public’s support for these changes. You can see the remarkable evolution in public attitudes favoring and opposing immigration reforms at https://news.gallup.com/poll/1660/immigration.aspx
Partisan gerrymandering and state reapportionment lines
Since the early 1800’s, states have been drawing lines for voting districts to favor the party and powerful interests in power – a practice known as gerrymandering after one of its earliest practitioners, Massachusetts Governor Eldridge Gerry. The Supreme Court in the 1960’s put some limits on this practice. First in Baker v. Carr, they articulated the fundamental democratic principle of “one man, one vote” – i.e. voting districts have to be equal in population and consistent with the most recent decennial census. Second, in Gomillion v. Lightfoot, they barred racial gerrymandering. That still left plenty of room for partisan gerrymandering, and both parties have done so very effectively, taking the real choices away from voters in order to protect their incumbents and partisan advantages. The techniques include “packing” and “cracking” a party’s most loyal voters to assure voting districts with a sharp partisan advantage. Several states, including Arizona, California, Colorado, Michigan, and Washington state, have taken this line drawing power back from the state legislature and appointed instead independent commissions to draw the district lines. In Arizona State Legislature vs. Arizona Independent Redistricting Commission 576 US 787 (2015), the US Supreme Court in a 5-4 decision upheld the state’s voter initiative shifting the line drawing powers from the legislature to an independent commission. In Rucho vs. Common Cause, 588 US -- (2019), the US Supreme Court held that extreme partisan gerrymandering was a political question for Congress to decide, a political thicket that the federal courts should avoid. It commended the efforts of independent state commissions, Congressional action, state constitutional amendments, and state Supreme Court decisions to put an end to this unjust, but in their view not unconstitutional, practice.
Reapportionment and the census
We have just completed the decennial census. It showed population growth in the cities and decline in the rural regions. In the 2020 Census, the US had the slowest population growth (7.4%) since the 1930’s. Within that growth, the South and West gained the most and the Northeast and Midwest grew the least. Urban and suburban areas grew substantially while most rural communities lost population. Hispanics (23% population growth), Asians and mixed-race individuals grew the most, while whites declined as a percent of the US population by 8.6%. We became a far more ethnically diverse nation over the last decade. Hawaii and California were the most ethnically diverse states, followed closely by Nevada, Maryland, DC, Texas, New Jersey, New York, Georgia, and Florida. One might expect that some of the practitioners of extreme partisan gerrymandering will seek to negate the political consequences of these population shifts.
What’s next for the US?
We are in a time of ferment at the end of 20 years of war, and in the middle of a pandemic the likes of which are not seen since 1919; we are in the midst of vast technological changes, threats to our planetary survival, economic earthquakes, and a reordering of the nation’s priorities. Our futures are as bright or dim as we Americans choose to make them. It is up to American voters to make vitally important decisions about our future and the viability and directions of our institutions. I would submit that a pack of lies, virulent anger and scapegoating, threats to our elections and to our election officials are not a particularly good way to get to the decisions so necessary to the survival and flourishing of our society. Nor are gridlock and stasis, sticking our heads in the sand while the earth rapidly changes all around us the best way for the US to go forward. We need to have faith in the democratic process, not subvert it to respective partisan advantage. We need to embrace our many challenges as the opportunities which they are; we must engage in crafting the best possible solutions for which we are able to craft a working consensus and to move forward and to keep adjusting them as we go. And we must include every single American in this process.
Lucien Wulsin
11/13/21