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Less than Fundamental: The Myth of Voting Rights in America

There is a myth among election law experts that voting is a fundamental right in the United States. However, the Supreme Court’s recent Husted v. Philips Randolph Institute upholding Ohio’s voter purge law and Minnesota Voter Alliance v. Mansky striking down Minnesota’s political apparel ban are only the latest examples demonstrating that the right to vote in America is less than fundamental. These cases are part of the second great disenfranchisement in American politics. Like the first one after the end of Reconstruction, this one too aims to rig the election process, entrenching one set of interests in power.

The story of voting rights in America is one of exceptionalism. In 1787 when the US Constitution was drafted the right to vote was absent from the text. The Constitution then (and still to this day because the Electoral College actually picks the president) did not a grant a right to vote for president. Senators were chosen by the state legislatures. While members of the House of Representatives could be selected by the people, who could vote was a matter of state law, franchise was generally limited to property-owning white males, at least 21 years old, who were citizens and members of a church or particular faith.

The traditional story of voting rights in America tells how franchise and democracy expanded over time. First in the 1820s states started dropping property requirements to vote and began allowing qualified individuals the right to pick the electors who selected the president. Then there was the adoption of the Fifteenth, Nineteenth, and Twenty-Sixth Amendments granting the right to vote to freed male slaves, women, and eighteen-year-olds. The Seventeenth Amendment allowed for the direct popular vote of senators. The Twenty Fourth Amendment eliminated the poll tax, and the 1924 Indian Citizenship Act, and the 1965 Voting Rights expanded voting rights to Native-Americans and people of color. These amendments and laws, along with Supreme Court cases such as US v. Classic and Harper v. Virginia Board of Elections, are part of an election law canon supposedly guaranteeing the right to vote as a fundamental right. However, the right to vote in the United State is less than fundamental.

The other side of the story of voting rights in America is how tenuous and contingent the franchise is, and how much pressure there has also been to restrict it. The United States is the only country in the world that still does not have in its Constitution an explicit clause affirmatively granting a right to vote for all or some of its citizens.

The 15th, 19th, and 26th Amendments do not actually grant an affirmative right to vote–they merely prevent denial of the franchise based race, gender, or age. One consequence of this less than fundamental right is that the US has one of the lowest rates of voting among the democracies in the world. Voting is stratified by race, class, and gender. While most legal restrictions that were put in place on franchise in 1787 have been eliminated, in reality the profile of those who vote today is almost identical to what it was back then.

With each push to expand the franchise there is a counterpunch response to contract it. During the first great enfranchisement after the Civil War, Congress enacted civil rights legislation and adopted constitutional amendments during Reconstruction in order to establish voting rights for freed male slaves. It worked–and many blacks were elected to state and federal offices–until Reconstruction ended in 1877 and the Jim Crow Era began. Tools as explicit as lynching were deployed to dissuade African-Americans from voting, but so too were felon disenfranchisement laws, poll taxes, literacy tests, and grandfather laws. These techniques successfully eliminated the right to vote for many for nearly another century.

But then the second great enfranchisement occurred from the 1950s to 1970s. Once the 1965 Voting Rights Act and its subsequent amendments along with the 1993 Motor Voter Act began to make an impact, the backlash began. The first great disenfranchisement was a partisan affair pushed by Democrats. This time it was Republicans.

It began with cries of voter fraud, even though there is no credible evidence that in-person fraud at the polls was a serious problem. The Supreme Court endorsed voter ID laws in its 2008 Crawford v. Marion County, and now 34 states have photo requirements. These ID requirements are especially hard on the poor, people of color, new citizens, and the elderly; many of these groups lean Democrat. In its 2013 Shelby County v. Holder the Court declared part of the Voting Rights Act unconstitutional which emboldened states to take action such as closing polling places or cutting back on early voting. And way back in 1974 the Court endorsed ex-felon disenfranchisement laws in Richardson v. Ramirez, stripping away the right to vote to millions of individuals, many of whom are poor and people of color. Over time other limits on voting have been adopted by states, and the Court has come to accept them as routine and reasonable administrative regulations, failing to look at the impact the rules have on the voter.

Now we have Husted v. Philips Randolph Institute and Minnesota Voter Alliance v. Mansky. Supporters of these cases will say that these decisions either disenfranchise few, are necessary to prevent fraud, or protect free speech. But they also put more burden on voters to ensure they are registered to vote or require them to endure more pressure when they enter the polling place to vote. Voting has become an individual struggle–fighting both against the government and others to cast a ballot. You are essentially on your own to figure out how to vote, and it appears the government will do little to help you. No surprise that Justice Roberts in his Mansky majority opinion refers to the days of the nineteenth century when voting “was akin to entering an open auction place… where [c]rowds would gather to heckle and harass voters who appeared to be supporting the other side.”

Such a scene was intimidating. This is what voting is turning into again. Casting a vote is again becoming an act of courage, meant not for the faint-hearted. Those who will be and are chased away are the very same people who could not vote back in 1787. Whatever the election law fiction claims to be, the right to vote is no less than fundamental.