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Voting Rights

Basis in the Constitution

 

The right to vote is embedded in several passages of the Constitution. It is first found in article one, section four (otherwise known as the "Elections Clause"). It reads: 

“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.”  U.S. Const. Art. I § IV.

Originally, only white, land-owning or tax paying men could vote. Over time, however, the right to vote would be won by other groups:

  • “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.” U.S. Const. amend. XV (granted African Americans and former male slaves the right to vote).

  • “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.” U.S. Const. amend. XIX (granted women the right to vote).

  • “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.” U.S. Const. amend. XXIV (eliminated poll taxes as a precursor to voting, making it easier for poor and minority citizens to vote).

  • "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.” U.S. Const. amend. XXVI (granted those over eighteen the right to vote).

Additionally, the right to vote is implicated in the 17th Amendment. This Amendment provides for the direct election of senators by voters rather than state legislatures. Originally, state legislatures would elect two senators for six-year terms. However, state legislatures would sometimes become gridlocked when controlled by different parties, leading to persistent vacancies in the senate. Therefore, the 17th Amendment was passed in order to end stalemates and streamline senatorial elections. It also had the effect of creating more direct representation as people voted for their senators, rather than state legislatures choosing them.

 

More Information: Elections Clause

More Information: 15th Amendment

More Information: 17th Amendment

More Information: 19th Amendment

More Information: 24th Amendment

More Information: 26th Amendment

Former Limitations on the Right to Vote

 

Although the 15th Amendment guaranteed the right to vote for African Americans in 1789, certain “legal” limitations continued to exist that made it persistently difficult for African Americans to exercise this right. Below are a few examples:

  • Poll Tax (requiring voters to pay a fee for voting, which many Black Americans and poor white persons could not afford). Poll taxes were so prolific that an amendment was necessary to eliminate them.

  • Literacy Tests (requiring voters to pass a test, such as reading a part of the constitution and explaining it, before voting).

  • “Grandfather” Clauses (requiring proof that previous generations had voted before a citizen could vote; obviously, this did not include recently enfranchised Black voters).

 

More Information:

Further Reading:

Voting Rights Legislation

 

Due to the widespread and prolific use of Jim-Crow voting laws detailed above, Congress passed the Voting Rights Act of 1965. The Act provided that “No voting qualifications or prerequisites to voting, or standard, practice, or procedure shall be applied by any state or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” Pub. L. 89-110, 79 Stat. 437. In short, the Act prohibited racial discrimination in voting. In recent years, the Voting Rights Act has become more limited in scope, and less enforceable. Opponents of the Act argue that society has progressed past the need for close monitoring of state voting laws by the federal government. They say that the forces which inspired discriminatory voting laws in the past—racism, white supremacy, and desire for political superiority—have long faded into history. Supporters of the Voting Rights Act contend that these forces remain and in fact thrive today. They say that robust federal oversight is necessary to maintain the right to vote and avoid stepping back through time. 

More Information:

Further Reading:

Significant Supreme Court Cases

 

Many significant decisions have been made by the Supreme Court regarding the right to vote. Below are just a few examples that serve as an overview of how the Court has ruled on voting rights issues:

United States v. Reese (1876): The 15th Amendment does not protect the right to vote, it only prevents exclusion from voting based on race (upheld discriminatory voting laws such as poll taxes and literacy tests).

Yick Wo v. Hopkins (1886): The right to vote is a fundamental right protected under the Equal Protection Act of the 14th Amendment.

Guinn v. United States (1915): Originally upheld the constitutionality of literacy tests.

Baker v. Carr (1962): Held that courts can hear challenges to malapportionment of state legislatures under the Equal Protection Act of the 14th Amendment.

Reynolds v. Sims (1964): The Court said that the Equal Protection Clause of the 14th Amendment required that seats in a bicameral state legislature be apportioned on a 1:1 population basis (establishing the “one person, one vote” rule). 

Richardson v. Ramierez (1974): Ruled that states can disenfranchise felons even after they have served probation and parole.

Crawford v. Marion County Election Board (2008): State laws requiring voter ID are constitutional on their face. In its reasoning, the Court places the interest of the state in preventing fraud over the interest of the citizen attempting to vote free of restriction.

Shelby County v. Holder (2013): Shelby County v. Holder had to do with two sections of the VRA: Section 5 and Section 4(b). Section 5 required certain states with pervasive histories of voter discrimination to get federal preclearance for any changes to their voting laws. Section 4(b) contained the formula for determining which states would be subject to this federal preclearance. The Supreme Court struck down section 4(b), which rendered section 5 obsolete. This made it easier for states with a history of voter discrimination to pass changes to their voting laws without federal oversight.

Brnovich v. Democratic National Committee (2021): Section 2 of the VRA prohibits states from passing a law that denies or abridges the right to vote based on race or color. Arizona voting laws discounted out-of-precinct ballots and banned non-relative neighbors/friends from delivering mail-in ballots. Opponents of these laws argued that they disproportionately affected people of color, violating Section 2 of the VRA. The Supreme Court held that these laws did not violate the VRA. The Court established five “guideposts” when considering voting policies—focusing on the state’s interest in preventing fraud. Justice Kagan’s dissent focused on the discriminatory effect of the laws, arguing that there was a disparate impact on minority voters.

Additional Historical Resources:

 

Further Reading:

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