Voting rights in the United States

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The issue of voting rights in the United States has been contentious over the country's history. Eligibility to vote in the U.S. is determined by both Federal and state law. Only citizens can vote in U.S. elections, and who is (or who can become) a citizen is governed on a national basis by Federal law. Each state determines which citizens have the right to vote in that state, but over time national laws in the form of Constitutional amendments and Federal legislation such as the Voting Rights Act have imposed some national restrictions and standards on state-level voting laws.[1]

There have been several similar, but somewhat separate movements to extend voting rights to groups of people who had been disenfranchised through a variety of legal (and sometimes extra-legal) means.

At least four of the fifteen post-Civil War Constitutional amendments were ratified specifically to extend voting rights to different groups of citizens. These extensions state that voting rights cannot be denied or abridged based on "race, color, or previous condition of servitude" (15th Amendment, 1870), "on account of sex" (gender) (19th Amendment, 1920), "by reason of failure to pay any poll tax or other tax" (24th Amendment, 1964), "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" (26th Amendment, 1971). In addition, the 17th Amendment provided for the direct election of United States Senators.

The "right to vote" is explicitly stated in the U.S. Constitution (in the above referenced Amendments), but only in reference to the fact that the franchise cannot be denied or abridged based solely on the aforementioned qualifications. A state may choose to fill an office by means other than an election, such as by letting a political party choose a replacement until the next election for an affiliated legislator upon death or resignation without raising a constitutional issue.[2] The "right to vote" may be denied for other reasons, for example; some states have precluded convicted felons from voting. According to a recent Supreme Court decision, "The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College."[3]

Contents

[edit] Milestones of national franchise extension

[edit] Removal of voting rights exclusions

Each extension of voting rights has been a product of, and also brought about, social change.

[edit] Religion test

In several British North American colonies, before and after the 1776 Declaration of Independence, Jews, Quakers and/or Catholics were excluded from the franchise and/or from running for elections [5].

The Delaware Constitution of 1776 stated that "Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office, shall (...) also make and subscribe the following declaration, to wit: I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration." [6]. This was repealed by article I, section2. of the 1792 Constitution: "No religious test shall be required as a qualification to any office, or public trust, under this State." [7]. The 1778 Constitution of the State of South Carolina stated that "No person shall be eligible to sit in the house of representatives unless he be of the Protestant religion" [8], the 1777 Constitution of the State of Georgia (art. VI) that "The representatives shall be chosen out of the residents in each county (...) and they shall be of the Protestant religion" [9].

With the growth in the number of Baptists in Virginia before the Revolution, the issues of religious freedom became important to rising leaders such as James Madison. As a young lawyer, he defended Baptist preachers who were not licensed by (and were opposed by) the established state Anglican Church. He carried developing ideas about religious freedom to be incorporated into the constitutional convention of the United States.

In 1787, Article One of the United States Constitution stated that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature". More significantly, Article Six disavowed the religious test requirements of several states, saying: "[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

In Maryland, voting rights and eligibility as candidates were extended to Jewish Americans in 1828. [10]

[edit] African Americans and poor whites

See also: Fifteenth Amendment to the United States Constitution
See also: Disfranchisement after the Civil War

At the time of ratification of the Constitution, most states used property qualifications to restrict the franchise; the exact amount varied by state, but by some estimates, over half of white men were barred from voting. [11] In some states, free men of color who met property qualifications also possessed the vote, a fact that was emphasized in Justice Curtis's dissent in Dred Scott v. Sandford:

Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens. [12]

The Supreme Court of North Carolina upheld the ability of free African Americans to vote before they were disfranchised by decision of the North Carolina Constitutional Convention of 1835. At the same time, convention delegates relaxed religious and property qualifications for whites.[13] Alabama entered the union in 1819 with universal white suffrage provided for in its constitution. Its actions in the late 19th century disfranchised poor whites as well as blacks.

The Fifteenth Amendment to the Constitution, one of three adopted in response to the American Civil War, prevented any state from denying the right to vote to any male citizen twenty-one years old or older on account of his race. This was primarily related to protecting the franchise of freedmen, but it also applied to non-white minorities such as Mexican Americans in Texas. The state governments under Reconstruction adopted new state Constitutions or amendments designed to protect the ability of freedmen to vote. The unsettled environment after the war regularly erupted with violence as groups tried to protect their power. Particularly in the South, in the aftermath of the Civil War, whites started working to limit the ability of freedmen to vote. In the 1860s, secret vigilante groups like the Ku Klux Klan (KKK) used violence and intimidation to keep freedmen in a controlled role and reestablish white supremacy. Nonetheless, freedmen registered and voted in high numbers, and many were elected to local offices through the 1880s.

In the mid-1870s there was a rise in more powerful paramilitary groups, such as the White League, originating in Louisiana in 1874 after a disputed election; and the Red Shirts, originating in Mississippi in 1875 and growing in North and South Carolina; as well as other "White Line" rifle clubs. They operated openly, were more organized than the KKK, and directed their efforts at political goals: to disrupt Republican organizing, turn Republicans out of office, and intimidate or kill blacks to suppress black voting. They worked as "the military arm of the Democratic Party."[14] For instance, estimates were that 150 blacks were killed in North Carolina before the 1876 elections. Economic tactics such as eviction from rental housing or termination of employment were also used. Black voting was suppressed and white Democrats regained power in the South by the late 1870s. Then the legislators worked to create more complicated voter registration or election requirements, which reduced black voting more permanently.

African Americans were a majority in three southern states following the Civil War, and represented over 40% of the population in four other states. While they did not elect a majority of African Americans to office during Reconstruction, whites feared and resented the political power which they exercised.[15] After ousting the Republicans, whites worked to restore white supremacy.

From 1890 to 1908, ten of the eleven former Confederate states completed political suppression by ratifying new constitutions or amendments which incorporated provisions to disfranchise blacks and poor whites. These included such methods as a poll tax, record keeping, timing of registration in relation to elections, felony disenfranchisement focusing on crimes thought to be committed by African Americans,[16] complex residency requirements, and a literacy test. Focusing on both blacks and poor whites ensured that there would be no coalition between them as had arisen in the elections of 1894, when Populist-Republican tickets wrested power away from Democrats. Prospective voters had to prove the ability to read and write the English language to white voter registrars, who in practice used subjective requirements. Blacks were often denied the right to vote on this basis. Even literate blacks were often told they had "failed" such a test, if in fact, it had been administered. On the other hand, illiterate whites were sometimes allowed to vote through a "grandfather clause" which waived literacy requirements if one's grandfather had been a qualified voter before 1866, or had served as a soldier, or was from a foreign country. As most blacks had grandfathers who were slaves before 1866, they could not use the grandfather clause exemption. Selective enforcement of the poll tax was frequently also used to disqualify black and poor white voters.

Voter registration and turnout dropped sharply in southern states. The feature "Turnout in Presidential and Midterm Elections" at this University of Texas website demonstrates the dramatic fall-off in voting in Texas and other Southern states compared to the rest of the US as these provisions took effect. It also demonstrates the long continuation of disfranchisement in the South into the 20th century.[1]

African Americans quickly began legal challenges to such provisions in the 19th century, but it was years before any were successful before the U.S. Supreme Court. Booker T. Washington, better known for his public stance of trying to work within constraints Tuskegee University, secretly helped fund and arrange representation for numerous legal challenges to disfranchisement. He called upon Northern allies to raise funds for the cause.[17] The Supreme Court's upholding of Mississippi's provisions, in Williams v. Mississippi (1898), encouraged other states to follow the Mississippi plan of disfranchisement. African Americans brought other legal challenges, as in Giles v. Harris (1903) and Giles v. Teasley (1904), but the Supreme Court upheld Alabama constitutional provisions.

From early in the 20th century, the newly established National Association for the Advancement of Colored People (NAACP) took the lead in organizing or supporting legal challenges to segregation and disfranchisement. Gradually they planned the strategy of which cases to take forward. In Guinn v. United States (1915), the first case in which the NAACP filed a brief, Supreme Court struck down the grandfather clause in Oklahoma and Maryland. Other states in which it was used had to retract their legislation as well. The challenge was successful.

Nearly as rapidly as the Supreme Court determined a specific provision was unconstitutional, however, state legislatures developed new statutes to continue to disfranchise African Americans, minorities and poor whites. In Smith v. Allwright (1944), the Supreme Court struck down the use of state-sanctioned all-white primaries by the Democratic Party in the South. States developed still other restrictions on black voting. The NAACP continued with steady progress in legal challenges to disfranchisement and segregation.

The Twenty-fourth Amendment was ratified in 1964 to prohibit poll taxes as a condition of voter registration and voting in federal elections. Full enfranchisement of citizens was not secured until after the American Civil Rights Movement gained passage by the United States Congress of the Voting Rights Act of 1965. Congress passed the legislation because it found "case by case litigation was inadequate to combat widespread and persistent discrimination in voting." Activism by African Americans thus helped secure an expanded and protected franchise that benefited all Americans.

The bill provided for Federal oversight if necessary to ensure just voter registration and election procedures. The rate of African-American registration and voting in Southern states climbed dramatically and quickly, but it took years of Federal oversight to work out the processes and overcome local resistance. In addition, it was not until the U.S. Supreme Court ruled 6-3 in Harper v. Virginia Board of Elections (1966) that all state poll taxes (for both state and federal elections) were officially declared unconstitutional as violating the Equal Protection Clause of the Fourteenth Amendment. This removed a burden on the poor.

[edit] Women

See also: History of women's suffrage in the United States

A parallel, yet separate, movement was that for women's suffrage. Outstanding leaders of the suffrage movement included Susan B. Anthony and Elizabeth Cady Stanton. In some ways this, too, could be said to have grown out of the American Civil War, as women had been strong leaders of the abolition movement. Middle and upper class women generally became more politically active in the northern tier during and after the war.

Wyoming became the first state to allow women to vote on the same basis as men. Some other states also extended the franchise to women before the Constitution was amended. With ratification of the Nineteenth Amendment, women were granted the right to vote in time to participate in the Presidential election of 1920.

Another political movement that was largely driven by women in the same era was the anti-alcohol Temperance movement, which led to the Eighteenth Amendment and Prohibition.

[edit] Young people

See also: Twenty-sixth Amendment to the United States Constitution

A third voting rights movement was one in the 1960s to lower the voting age from twenty-one to eighteen. This movement was given far greater impetus by the Vietnam War, as it was noted that most of the young men who were being drafted to fight in it were too young to have any voice in the selection of the leaders who were sending them to fight. This, too, had previously been a state issue, as several states, notably Georgia, Kentucky, and Hawaii, had already allowed voting at a younger age than twenty-one. The Twenty-sixth Amendment, ratified in 1971, required all states to set a voting age no higher than eighteen. As of 2008, no state has opted for an earlier age, although some state governments have discussed it.[18] Nineteen states, however, permit people who will be 18 on or before the general election to vote in primary elections and caucuses.[2]

[edit] Inmates /Prisoners

Felon voting rights is a state issue, so the laws are different from state to state. Some states allow only individuals on probation and ex-felons to vote. Others allow individuals on parole, probation and ex-felons to vote. As of July 2007, only Maine and Vermont allow incarcerated individuals to vote.

Fourteen states, eleven of them in the South, ban anyone with a felony conviction from voting for life, even after the person has served the sentence. According to the Sentencing Project 5.3 million Americans are denied the right to vote because of a felony conviction. [19] The number of people disenfranchised amounts to approximately 2.42% of the otherwise-eligible voting population.[20][21] This is in sharp contrast to European nations, which allow ex-felons to vote after serving sentences and in some cases allow prisoners to vote.

The United States has a higher proportion of its population in prison than any other Western nation, and more than Russia or China. The dramatic rise in the rate of incarceration in the United States, a 500% increase from the 1970s to the 1990s due to criminalization of certain behaviors, strict sentencing guidelines and changes in philosophy, has vastly increased the number of people disfranchised because of the felon provisions. Given the prison populations, the effects have been most disadvantageous for minority and poor communities.[22]

[edit] Durational Residency

The Supreme Court of the United States struck down one-year residency requirements to vote in Dunn v. Blumstein 405 U.S. 330 (1972).[23] The Court ruled that limits on voter registration of up to 30 to 50 days prior to an election were permissible for logistical reasons, but that residency requirements in excess of that violated equal protection as granted under the Fourteenth Amendment according to strict scrutiny.

[edit] Special Interest Elections

Even after the above restrictions on the franchise were lifted for general elections, several locales retained similar restrictions for specialized local elections, such as for school boards, bond issues, or water storage districts. Property restrictions, duration of residency restrictions, and, for school boards, restrictions of the franchise to voters with children remained in force. In a series of rulings from 1969 to 1973, the Court ruled that the franchise could be restricted in some cases to those "primarily interested" or "primarily affected" by the outcome of a specialized election, but not in the case of school boards or bond issues, which affected taxation of all residents.[2] Property restrictions for public votes for water storage districts were, however, upheld. In Ball v. James 451 U.S. 335 (1981) the Court further upheld a system of plural voting where votes for the board of directors of a water reclamation district were allocated on the basis of the area of land owned in the district.[2]

The Court placed restrictions on party political primaries as well. While states were permitted to require voters to register for a party 30 days before an election, or to require them to vote in only one party primary, they were not allowed to prevent a voter from voting in a party primary if the voter has voted in another party's primary in the last 23 months.[2] The Court also ruled that a state may not mandate a 'closed primary' system and bar independents from voting in a party's primary against the wishes of the party itself. (Tashijan v. Republican Party of Connecticut 479 U. S. 208 (1986))[24]

The Office of Hawaiian Affairs of the state of Hawaii, created in 1978, limited voting eligibility and candidate eligibility to the native Hawaiians on whose behalf it manages 1,800,000 acres (7,300 km²) of ceded land. The Supreme Court of the United States struck down the franchise restriction under the Fifteenth Amendment in Rice v. Cayetano 528 U.S. 495 (2000), following by eliminating the candidate restriction in Arakaki v. State of Hawai‘i a few months later.

[edit] Voting rights today

Adult citizens of the United States who are residents of one of the 50 states or the District of Columbia may not be restrained from voting for a variety of protected reasons, stated in the aforementioned 15th, 19th, 24th and 26th Amendments.

[edit] Overseas and nonresident Citizens

US citizens residing overseas who would otherwise have the right to vote are guaranteed the right to vote in Federal elections by the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986.[25] As a practical matter, individual states implement UOCAVA. Generally, they have implemented it only for Uniformed Services voters and for overseas voters who maintain a residence in the U.S.

U.S. citizens who do not meet residency requirements (e.g., insular area residents and nonresident expatriates) are not afforded Congressional representation, and are not enfranchised to vote in federal elections.

[edit] District of Columbia

Main article: District of Columbia voting rights

Residents of the nation's capital, Washington, D.C., have neither effective local control nor full representation in the U.S. House or Senate. The Twenty-third Amendment gave the District of Columbia three electors and hence the right to vote for President. In 1978, Congress proposed a constitutional amendment that would have allowed the District a seat for representation in the Congress as well. This amendment failed to receive ratification by sufficient number of states within the seven years required.

Since then, Congress has consistently refused to offer for ratification a constitutional amendment that would give District of Columbia residents either representation in both the Senate and the House, as if the District were a state, or, as has also been proposed, voting representation in the House only. Additionally, Congress has continued to use its constitutional jurisdiction over the District "in all cases whatsoever" to countermand the expressed will of District voters through laws passed by their local elected officials. For this reason, many Washington residents call their city "The Last Colony", the home of "taxation without representation".

[edit] Accessibility

There is also concern with regard to voting rights (or accessibility) for those who are disabled; and with regard to voting rights for those whose primary language is not English. Federal legislation such as the Americans with Disabilities Act of 1990 (ADA), the National Voter Registration Act of 1993 (NVRA, or "Motor-Voter Act") and the Help America Vote Act of 2001 (HAVA) address some of these concerns of the disabled and non-English speaking.

[edit] Ability to be a candidate

Closely related to the right to vote, is the right of citizens to be a candidate and to create a political party. Yet, as is the case with voting rights, there may be controversy in how persons qualify as candidates or create political parties that may be recognized. States often have age limits and residency requirements for candidates. They also may impose difficult and expensive petitioning rules for certain candidates or parties to be listed on the election ballot.

[edit] Noncitizens

Main article: Right of foreigners to vote in the United States

More than 40 states or territories, including colonies before the Declaration of Independence, allowed non-citizens who satisfied residential requirements to vote in all elections. This in part reflected the strong continuing immigration to the US. Some cities (Chicago), towns or villages (in Maryland) today allow non-citizen residents to vote in school or local elections. Cities in Massachusetts, for instance, have worked with the state legislature to introduce such a proposal. As of 2008, state legislature proposals on non-citizen residents' voting either have been or are being submitted on the matter in New York, Connecticut, Maine, Texas and California.[citation needed]

[edit] References

  1. ^ Voting Rights History Two Centuries of Struggle ~ Civil Rights Movement Veterans
  2. ^ a b c d US Constitution Annotated, Justia, <http://supreme.justia.com/constitution/amendment-14/92-voter-qualifications.html>. Retrieved on 2008-04-18 
  3. ^ GEORGE W. BUSH, et al., PETITIONERS v. ALBERT GORE, Jr., et al., Supreme Court of the United States, December 12, 2000, <http://www.law.cornell.edu/supct/html/00-949.ZPC.html>. Retrieved on 2008-02-22 
  4. ^ The American Indian Vote: Celebrating 80 Years of U.S. Citizenship, Democratic Policy Committee, October 7, 2004, <http://democrats.senate.gov/dpc/dpc-new.cfm?doc_name=sr-108-2-283>. Retrieved on 2007-10-15 
  5. ^ Williamson, Chilton (1960), American Suffrage. From property to democracy, Princeton University Press 
  6. ^ Constitution of Delaware, 1776, The Avalon Project at Yale Law School, <http://www.yale.edu/lawweb/avalon/states/de02.htm>. Retrieved on 2007-12-07 
  7. ^ State Constitution (Religious Sections) - Delaware, The Constitutional Principle: Separation of Church and State], <http://members.tripod.com/candst/cnst_de.htm>. Retrieved on 2007-12-07 
  8. ^ An Act for establishing the constitution of the State of South Carolina, March 19, 1778, The Avalon Project at Yale Law School, <http://www.yale.edu/lawweb/avalon/states/sc02.htm>. Retrieved on 2007-12-05 
  9. ^ Constitution of Georgia; February 5, 1777, The Avalon Project at Yale Law School, <http://www.yale.edu/lawweb/avalon/states/ga02.htm>. Retrieved on 2008-03-27 
  10. ^ An Act for the relief of Jews in Maryland, passed February 26, 1825, Archives of Maryland, Volume 3183, Page 1670, February 26, 1825, <http://www.msa.md.gov/megafile/msa/speccol/sc4800/sc4872/003183/html/m3183-1670.html>. Retrieved on 2007-12-05 
  11. ^ Francis Newton Thorpe, The Constitutional History of the United States, 1765-1895, <http://books.google.com/books?id=JVw0AAAAIAAJ&pg=PA97&lpg=PA97&dq=franchise+extension+landless+united+states&source=web&ots=JksZs3TmVA&sig=9iLrqx20BEn5_VKZeDLu5Oytty4&hl=en#PPA88,M0>. Retrieved on 2008-04-16 
  12. ^ Dred Scott v. Sandford, Curtis dissent, Legal Information Institute at Cornell Law School, <http://www.law.cornell.edu/supct/html/historics/USSC_CR_0060_0393_ZD1.html>. Retrieved on 2008-04-16 
  13. ^ The Constitution of North Carolina, State Library of North Carolina, <http://statelibrary.dcr.state.nc.us/nc/stgovt/preconst.htm#1835>. Retrieved on 2008-04-16 
  14. ^ George C. Rable. But There Was No Peace: The Role of Violence in the Politics of Reconstruction, Athens, GA: University of Georgia Press, 1984, p.132
  15. ^ Gabriel J. Chin & Randy Wagner, "The Tyranny of the Minority: Jim Crow and the CounterMajoritarian Difficulty," 43 Harvard Civil Rights-Civil Liberties Law Review 65 (2008)
  16. ^ Gabriel J. Chin, "Reconstruction, Felon Disenfranchisement and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth?," 92 Georgetown Law Journal 259 (2004)
  17. ^ Richard H. Pildes, "Democracy, Anti-Democracy, and the Canon", Constitutional Commentary, Vol.17, 2000, p.13-14, accessed 10 Mar 2008
  18. ^ Carl Weiser (April 18, 2004), Should voting age fall to 16? Several states ponder measure., The Enquirer, <http://www.enquirer.com/editions/2004/04/08/loc_votingage09.html>. Retrieved on 2008-01-05 
  19. ^ http://www.corrections.com/news/article/16076 Prospect for change, a push for voter rights]
  20. ^ State Felon Voting Disenfranchisement Laws, felonvotingprocon.org, May 10, 2007, <http://www.felonvotingprocon.org/pop/StateLaws.htm>. Retrieved on 22 March 2008 
  21. ^ Estimated Felon Disenfranchisement Totals, felonvotingprocon.org, December 31, 2004, <http://www.felonvotingprocon.org/pop/DisenTots.htm>. Retrieved on 22 March 2008 
  22. ^ Jeff Manza, Christopher Ugger, and Marcus Britton, "The Truly Disfranchised: Felon Voting Rights and American Politics", Northwestern University, 3 Jan 2001, accessed 21 Mar 2008
  23. ^ Oyez: Dunn v. Blumstein, 405 U.S. 330, Oyez 
  24. ^ Tashjian v. Republican Party of Connecticut, Justia, <http://supreme.justia.com/us/479/208/index.html>. Retrieved on 2008-04-18 
  25. ^ REGISTRATION AND VOTING BY ABSENT UNIFORMED SERVICES VOTERS AND OVERSEAS VOTERS IN ELECTIONS FOR FEDERAL OFFICE, U.S. Department of Justice, Civil Rights Division, Voting Section, <http://www.usdoj.gov/crt/voting/42usc/subch_ig.htm>. Retrieved on 2007-01-05 

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