In Honor of National Voter Registration Day: A Brief History of Voting Rights in America

In honor of National Voter Registration Day, and in an effort to encourage citizens to not only register to vote ahead of state deadlines but also to vote in this year’s election on Tuesday, November 8, I thought I’d provide some general information here about the history of voting rights in this country.

Let’s begin at the beginning. . .

Voting in Colonial America

The 13 colonies imposed land/property or tax-paying requirements on voters. In their view, only these people were sufficiently committed to their communities to vote.

Many colonies also imposed religious tests on voting, barring Catholics and Jews, for example, from participating in elections. These religious tests would later be repealed.

The American Revolution

The American Revolution was fought, in part, over the issues of voting and representation in Parliament. American colonists rejected the notion of “virtual representation” – the idea that English members of Parliament could represent the interests of the colonists in North America, even though the colonists had no say in electing those representatives. Hence the language in the Declaration of Independence: “Governments are instituted among Men, deriving their just powers from the consent of the governed[.]” (emphasis added).

The Abolition of Property Requirements in the 19th Century

The 19th century saw the abolition of property requirements for voting and thus began a new era of universal white manhood suffrage.

Note that during this time, only a few states (like Maine, Massachusetts, Vermont, and others) allowed African Americans to vote without significant restrictions. In most other places, African Americans – whether slave or free –  could not vote.

Also during this period, women property holders in New Jersey, who had once had the right to vote, now lost it.

The Fifteenth Amendment

The Fifteenth Amendment to the Constitution granted African American men the right to vote. It declared 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.”

Although ratified on February 3, 1870, the promise of the 15th Amendment would not be fully realized for almost a century. Through the use of poll taxes, literacy tests, intimidation, violence, and other Jim Crow-era means, Southern states effectively disenfranchised African Americans during this period. It was not until the passage of the Voting Rights Act of 1965 that a majority of African Americans in the South would be registered to vote.

 

The Nineteenth Amendment

In 1776, Abigail Adams wrote to her husband John Adams: “I long to hear that you have declared an independency. And, by the way, in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.”

John Adams responded to his wife’s letter (in a similarly teasing tone) and declared that men were not really the “masters” of women but were “subject to the despotism of the petticoat.” Adams and his contemporaries, like those who preceded them, failed to make codifying women’s rights a priority.

Although the Seneca Falls women’s rights convention of 1848 adopted a specific call for women’s suffrage, it would take an additional 72 years of lobbying and protesting for most women to gain the right to vote.  The amendment was first introduced in Congress in 1878, but was not ratified until August 18, 1920.

The Nineteenth Amendment reads:

“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 Voting Rights Act of 1965

The Voting Rights Act of 1965 was an act to enforce the 15th amendment to the United States Constitution, and was signed into law 95 years after that amendment was ratified. In that 95 year period, African Americans in the South faced near insurmountable obstacles to voting, including, literacy tests, poll taxes, a variety of bureaucratic restrictions, intimidation, physical violence and economic reprisal. As a result, there were few registered black voters in the South.

Political protests and reactionary violence in 1964 brought renewed attention to the issue of voting rights for African Americans. In particular, the murder of voting-rights activists in Mississippi and attacks on peaceful marchers in Selma, Alabama, allowed President Lyndon Baines Johnson and Congress to pass the voting rights bill on August 5, 1965.

The legislation outlawed literacy tests and provided for the appointment of federal examiners to help register qualified citizens to vote. By the end of 1965, 250,000 new black voters had been registered, one-third by Federal examiners. By the end of 1966, only 4 out of the 13 southern states had fewer than 50 percent of African Americans registered to vote.

The 24th Amendment and the Abolition of the Poll Tax

At the time of the passage of the 24th Amendment by Congress in 1962, five states (Virginia, Alabama, Mississippi, Arkansas and Texas) maintained poll taxes. which disproportionately impacted poor African American voters. The Amendment was ratified in 1964 and reads:

“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 any poll tax or other tax. The Congress shall have power to enforce this article by appropriate legislation.”

The 26th Amendment: Old Enough to Fight, Old Enough to Vote

The debate over lowering the voting age from 21 to 18 began during World War II and intensified during the Vietnam War, when young men who could not vote and therefore influence war policy were being conscripted to fight in the Vietnam War.

In 1970, Congress passed the Voting Rights Acts Amendments, which sought to lower the minimum age of voters in both state and federal elections from 21 to 18. In response, the Supreme Court ruled in the case of Oregon v. Mitchell (1970) that Congress had the right to regulate the minimum voting age in federal, but not state and local, elections.

In response to this case and mounting political pressure, Congress passed the 26th Amendment in March 1971. The states quickly ratified the Amendment, which went into effect in July of that year. The 26th Amendment reads:

“The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age. The Congress shall have the power to enforce this article by appropriate legislation.”

The fight over voting rights continues

The Voting Rights Act of 1965 was amended and reauthorized in 1970, 1975, 1982, 1992 and 2006. In 2013, the United States Supreme Court in Shelby County v. Holder

ruled 5-4 that Section 4 of the Voting Rights Act of 1965 was unconstitutional. Section 4 lays out the formulas for how the Justice Department enforces Section 5 of the Voting Rights Act. Section 5 requires that the states identified with a history of discrimination  obtain approval from the federal government before they can make changes to their election law. Section 4 formulas as of 2013 mandated that “Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia in their entirety; and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota” ask for preclearance for electoral law changes. After Shelby County v. Holder, these states are free to make changes to election law or district maps without approval from the Justice Department.

Without Section 4, the Justice Department has fewer legal resources for challenging election law it finds discriminatory.

The Supreme Court found Section 4 unconstitutional because of the age of the coverage formulas. The Supreme Court’s opinion notes: “voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, ‘the Act imposes current burdens and must be justified by current needs.’”

In other words, the Supreme Court is telling Congress, “if you want to keep Section 5, you better make new rules.”

Since the Supreme Court’s decision, Congress has yet to amend the Voting Rights Act in light of the Court’s concerns. Furthermore, many states have enacted laws that shift early voting and voter registration times or impose new voter-ID requirements. Conservatives argue that these laws are designed to counter voter fraud or help shrink stage budgets. Liberals argue that the laws are designed to disenfranchise college students and African Americans, who typically vote in favor of Democratic candidates. There is active litigation over these statutes across the country.

Similarly, there is an ongoing debate over whether convicted felons who have served their time in prison should be allowed to vote. A handful of states bar felons from voting unless they successfully petition to have their voting rights restored.

 

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