The right to vote means the ability to choose elected officials among a range of candidates with competing views. Voting in periodic elections in which opposing candidates vie for public office is the foundation upon which democracies are built. In the United States, the struggle for the right to vote demonstrates an ever‐widening net of individuals who are entitled to franchise.
The Constitutional Right to Vote
Nowhere in the United States Constitution is there an explicit declaration of the right to vote. Initially the Constitution appears to have left that right up to the states, which generally limited the franchise to white male property owners, who were citizens of a certain age, occasionally of a specific religious faith. For example, in Minor v. Happersett (1875), the U.S. Supreme Court rejected a claim by a Missouri woman that as a citizen the Constitution gave her a right to vote. The Court rejected her claim, indicating that citizenship did not necessarily include the right to vote; states could decide who had that right.
Commencing after the Civil War, a series of constitutional amendments were adopted that addressed the right to vote. The Fifteenth Amendment (1870) prohibited states from denying the right to vote on account of “race, color, or previous condition of servitude.” The Seventeenth Amendment (1913) permitted the direct election of U.S. senators. The Nineteenth Amendment (1920) enfranchised women (see Gender). The Twenty‐fourth (1964) banned poll taxes. The Twenty‐sixth (1971) directed states to allow qualified citizens who were age eighteen or older to vote. Finally, the Equal Protection and Due Process Clauses of the Fourteenth Amendment (1868) came to be read as preventing states from enacting suffrage laws that conflict with fundamental principles of fairness, liberty, and self‐government. Yet none of these amendments affirmatively granted the right to vote.
It was not until the 1960s that the Supreme Court affirmatively addressed the constitutional right to vote. In Baker v. Carr (1962), the Court reversed its earlier decision of Colegrove v. Green (1946), holding that the courts could hear disputes involving reapportionment and redistricting (see Reapportionment Cases). Then in Reynolds v. Sims (1964), it embraced the principle of equal representation for equal numbers of people—one person, one vote. More important, in Reynolds the Supreme Court ruled that the right to vote in federal elections was located in the Article I, section 2 of the Constitution description of the House of Representatives as “chosen. … by the People of the several States,” and in the references to the election of senators found in the Seventeenth Amendment.2
Locating a constitutional text to support the right to vote in state elections is more problematic. In Harper v. Virginia State Board of Elections (1966), in striking down the imposition of a poll tax in state elections, the Supreme Court ruled that the right to vote in state elections was located in the First Amendment by way of the Fourteenth Amendment's Due Process and Equal Protection Clauses. Although the tax met traditional constitutional standards, it was neither racially discriminatory nor indefensible as rational policy, but the court found that it unconstitutionally singled out the poor. Yet in Bush v. Gore (2000), the Supreme Court stated that there was no constitutional right to vote in presidential elections because the Constitution, in creating the Electoral College, left it up to the states regarding how electors would be chosen. What all these decisions suggest then is that the constitutional right to vote is highly qualified, resting more in what states cannot do regarding discrimination against specific individuals than in affirmatively granting a right to vote.
Enfranchisement of African‐Americans
The battle by African‐Americans to obtain the right to vote was long and arduous. Originally, the Constitution was silent on the right of African‐Americans to vote; instead, Article I, section 2 only referred to them as “other persons,” counted only three‐fifths of free persons. After the Civil War and during Reconstruction, African‐Americans were permitted to vote and they elected several members of Congress in the South. In 1870 the Fifteenth Amendment made it unconstitutional to deny the right to vote on the account of race.
When Reconstruction ended, so did effective franchise rights for African‐Americans. Many southern states enacted a variety of restrictions on African‐American voting rights. Some states instituted polls taxes that required African‐Americans to pay a fee to vote. Others imposed literacy tests upon African‐Americans that asked them to answer often arcane trivia in order to vote. Still other states enacted laws that declared that individuals could vote only if their grandfather had that right, or used white primaries as a means to exclude African‐Americans from participating in elections. Through these laws, as well as by outright intimidation by the Klu Klux Klan and other groups, African‐Americans effectively were without franchise rights until the 1960s.
The Supreme Court initially upheld literacy tests and poll taxes as constitutionally permissible means by which to maintain a responsible and informed electorate, but in the 1920s Democratic party primaries in which participation was restricted to whites began to crumble under judicial attack in cases such as Smith v. Allwright (1944). By 1953 the Supreme Court in Terry v. Adams dealt the last of what had been a series of blows to that exclusionary practice.
It was not until the 1960s that the Supreme Court and the federal government began to take serious steps to protect the right to vote for African‐Americans. The Twenty‐Fourth Amendment in 1966 made the poll tax illegal, the reapportionment cases declared malapportionment on account of race to be unconstitutional, and these cases also established a constitutional right to vote at the state and federal levels.
The Voting Rights Act
However, it was the 1965 Voting Rights Act that had the biggest impact on African‐American franchise rights. The Voting Rights Act was enacted in 1965 and amended or reauthorized in 1970, 1975, and 1982. Section four of the act outlawed some practices such as literacy tests, section two precluded states from diluting voting on account of race, and other parts of the act provided for new legal remedies and powers of the federal government to intervene to protect African‐American franchise in the states.
The heart of the Voting Rights Act is section 5, which requires some states to preclear any changes in voting laws. The statute requires federal approval (“preclearance”) of all changes in the method of election in “covered” jurisdictions—those identified as having a record of minority disfranchisement. (black disfranchisement was the sole concern in 1965, but the 1975 amendment extended special emergency protection to Latinos, Asian‐Americans, and Native Americans and expanded the definition of disfranchising devices to include the use of English‐only ballots.) The statutory decisions dealt, first, with the question of what constitutes a change in the method of voting (necessitating preclearance) and, second, with the circumstances in which an electoral change can be labeled discriminatory.
In 1965 the preclearance provision had been regarded as merely a hedge against inventive schemes that denied southern blacks access to the polls. In 1969, however, in Allen v. Board of Elections, the Supreme Court enlarged the meaning of a “voting” change to include new districting lines, the institution of at‐large elections or of multimember districts, the relocation of a polling place, and even urban annexations of adjacent suburban or rural areas. In this case, Chief Justice Earl Warren indicated that the Voting Rights Act is aimed at subtle and obvious state restrictions on the right to vote on account of race.
While Allen resolved what the Voting Rights Act covered, another question remained: When was a districting plan, annexation, or other change in a covered jurisdiction without discriminatory purpose or effect? For instance, what sort of change in the location of a polling place or jurisdictional lines was discriminatory?
Different standards came to be applied to different sorts of cases. The strength of the African‐American vote may be diminished when a city annexes suburban territory that contains more whites than blacks. If elections are at‐large, the Court has said (e.g., Richmond v. United States, 1975), a city must compensate its African‐American residents by switching to ward voting and creating as many “safe” minority districts as it can.
With redistricting and other changes, however, retrogression became the issue. The proper question, the Court held, was whether a new districting plan had left black voters less able to elect black representatives—that is, whether they had become relatively worse off. This approach made sense for two reasons. It squared with the initial point of the preclearance provision, which was to guard against attempts to pull African‐Americans back from the gains other provisions had enabled them to make. It also established an administratively viable framework.
Different standards for determining retrogression on voting rights have been addressed by the Supreme Court. In 1980, in Rome v. United States, it suggested that the point of the Voting Rights Act was to promote black officeholding and that only African‐Americans could represent African‐Americans. In Thornburg v. Gingles (1986), the Court interpreted a 1982 amendment to the act, contending that it often times required the creation of majority‐minority districts, that is, to redistrict in ways to make it possible to maximize the ability of minority groups to elect representatives. However in cases such as Shaw v. Reno (1993), the Supreme Court appeared to make the use of race for redistricting to improve minority seats harder to do, ruling that redistricting solely on account of race was unconstitutional.
The Voting Rights Act and the reapportionment decisions have had an enormous influence on the right to vote, especially for African‐Americans, and secondarily for Latinos and Hispanics. As a result of the act, minority registration, voting, and minority officeholding has dramatically increased.
Voting Rights of Other Individuals
In addition to African‐Americans, other groups have had their voting rights addressed by the Courts, Congress, or the Constitution. In 1924 Congress gave Indians the right to vote. In 1920, the Nineteenth Amendment enfranchised women, and in 1971 the Twenty‐sixth Amendment directed states to allow qualified citizens who were age eighteen or older to vote.
However, two groups still do not have constitutionally secure voting rights. Aliens may be denied the right to vote, and in Richardson v. Ramirez (1974), the Supreme Court upheld a state law denying ex‐felons the franchise. As the Richardson case pointed out, many states deny ex‐felons the right to vote, often for life, thereby affecting their rights to participate in elections and the political process. Estimates are that up to six million ex‐felons, many of them people of color, are denied their right to vote.
Overall, by the middle of the 1970s, virtually any citizen over the age of eighteen had the right to vote in federal, state, and local elections. Yet even though most legal barriers have fallen, barely half of the electorate votes in presidential elections, with considerably smaller percentages turning out for state and local races. Among those generally not voting are the young, those with lesser education, the poor, and people of color. In effect, the real electorate today looks much like those who were legally permitted to vote in 1787.
Efforts to increase voter turnout have included voter registration drives and get out the vote programs. In 1993 Congress passed the Motor Voter Act to facilitate voter registration through drivers' license agencies, and in 2002, Congress passed the Help America Vote Act (HAVA) to address many of the problems that arose in the 2000 presidential election. HAVA was written with the aim of establishing uniform voting requirements in federal elections and the updating of voting technology across the different states. It also permitted individuals to cast provisional ballots if there were disputes over the validity of a voter's registration status. Provisional ballots would be counted only when a voter's registration could be confirmed. In the 2004 elections, the manner in which provisional ballots were counted was the subject of much litigation and controversy, especially in the state of Ohio.
In addition to recognizing that the franchise includes the right to cast a ballot, the Court has stated that it also includes the right to have one's vote counted equally. The Reynolds v. Sims decision mandated one person, one vote in terms of reapportionment, but in Bush v. Gore, the Supreme Court also extended that Equal Protection claim to include the right to actually have one's vote counted. This decision was reached as a result of controversies in the 2000 presidential election and disputes regarding how to count certain votes in Florida.
Because of concerns about voter confusion, there was litigation by Democratic presidential candidate Al Gore to request certain ballots be recounted in several Florida counties. The Supreme Court halted the recount, effectively giving Republican George W. Bush a narrow margin of victory in the Florida popular vote, and thereby giving him the state's electoral votes and ultimately the presidency. Bush v. Gore was a controversial decision, but the possible extension of franchise claims to the counting and administration of voting has lead to new concerns to improve the voting technology and registration process, as well as to efforts to challenge felon disenfranchisement laws.
See also Fair Representation; Race and Racism.
Bibliography
- Taylor Branch, Parting the Waters (1988).
- William Gillette, The Right to Vote; Politics and the Passage of the Fifteenth Amendment (1969).
- Bernard Grofman and Chandler Davidson eds., The Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965–1990 (1994).
- Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (2000).
- Frank R. Parker, Black Votes Count: Political Empowerment in Mississippi after 1965 (1990)
— Abigail M. Thernstrom
