The Fight for Voting Rights
We might think that there would not be any controversies about elections in a country with a 230-year history of democracy. We would be wrong. Americans have argued and continue to argue about many issues: Who should have the right to vote? What regulations are reasonable, and which are just efforts to disenfranchise people for, perhaps, partisan gain? Who should decide, the states or the federal government? A little historical discussion provides some necessary context for understanding current controversies.
The Elections Clause of the US Constitution establishes that the states and the federal government shall share the responsibility of holding national elections. States are primarily responsible for conducting the electoral process, but Congress establishes uniform procedures for federal elections. For example, Congress sets the date for the Presidential general election and requires that states conduct district rather than at-large elections for representatives. The US Constitution states:
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 (Article 1, Sec. 4, clause 1).
The expansion of suffrage occurred at both the state and the national levels. For example, states individually removed property requirements for voting in the pre-Civil War era. A few states (New York, New Jersey, and Pennsylvania) extended suffrage to Black men before the Civil War. The nationalization of voting rights begins with the Fifteenth Amendment to the Constitution, which provided that “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.”
Unfortunately, states and local governments often passed laws undermining the Fifteenth Amendment. After Reconstruction ended in 1877, many states passed discriminatory laws that effectively removed minorities and many poor whites from voting. These included literacy tests and poll taxes. The era of “Jim Crow,” as it came to be called, disenfranchised most African Americans in the South.
In the 1950s and 1960s, Jim Crow became illegal when the civil rights movement, led by organizations such as the National Association for the Advancement of Colored People, the Southern Christian Leadership Conference, and the Student Nonviolent Coordinating Committee, successfully persuaded the US Congress and the US Supreme Court to make the fight for equal rights a federal responsibility. The Voting Rights Act of 1965 was the most significant legislation expanding suffrage at this time. Congress passed this landmark legislation at the urging of President Johnson after the events of “Bloody Sunday” in Selma, Alabama when state troopers attacked peaceful civil rights marchers. The law begins, “An Act to enforce the fifteenth amendment to the Constitution of the United States….”
One hundred years after the end of the Civil War, the enforcement of voting rights for all people, regardless of race and color, led to a dramatic increase in voter turnout. The Act had real teeth. Section 2 stated:
“No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or 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.”
Voters could now go to federal court and have state and local laws overturned. An additional tool to prevent discriminatory practice was Section 5. States with a history of discrimination (voting tests in place in 1964 and less than 50% turnout in 1964) could not change voting laws without “preclearance” from the US Department of Justice. The Voting Rights Act had a revolutionary effect on suffrage. Black voter turnout immediately increased, although it was not until the end of the twentieth century that African American turnout was near that of white voters. In the 2008 and 2012 elections, African-American turnout exceeded white voters (U.S. Census Bureau).
The fight for universal suffrage had been purchased by removing significant authority from local and state governments. Naturally, this would cause resentment and lead to efforts to reclaim authority from the federal government. In 2013, in Shelby County v. Holder, Alabama successfully argued before the US Supreme Court that Section 5, the Voting Rights Act preclearance procedure, was unconstitutional because it treated states differently based on fifty-year-old data and practices. States could now pass voting and electoral laws without needing authorization from the US Justice Department.
In 2021, the US Supreme Court further limited the impact of the Voting Rights Act of 1965 in Bronivich v. Democratic National Committee. The case focused on interpreting Section 2 of the Voting Rights Act of 1965. How was discrimination to be determined: whether there was an intent to discriminate or if there was just a disparate (unequal) impact on different ethnic or racial groups? Arizona had passed new electoral laws, such as one prohibiting “ballot harvesting” or allowing non-family members to collect and deliver ballots. Arizona argued that there was no discriminatory intent, only an effort to increase electoral integrity. Voting rights groups argued that the law imposed a more significant hardship on Native Americans, many of whom lived on reservations in rural areas far away from mailboxes and postal services. Therefore, the Arizona law should be ruled unconstitutional because of the unequal racial impact.
The Court ruled in favor of Arizona. Voting regulations that had no racist intent but had a racially disparate impact were now constitutional. Lower courts should examine the totality of circumstances, weighing the need to safeguard confidence in the electoral process against the increased inconvenience experienced by voters.
Voting regulations are receiving much political attention in the wake of the 2020 elections. President Trump’s arguments that there was voter fraud that contributed to his electoral defeat have led to many Republican-leaning states passing restrictive voting laws such as limiting vote-by-mail ballots, reducing early voting, and increasing identification requirements. On the other hand, more Democratic-leaning states continue working toward making voting more convenient.
In 2021, the House of Representatives, controlled by a thin majority of Democrats, passed sweeping voting rights legislation and many electoral reforms (HR 1). They include national automatic voter registration, uniform regulations for early voting, replacing legislatively-drawn electoral districts with ones drawn by citizen redistricting commissions, campaign finance reform, and returning preclearance for states that experience many allegations of voter disenfranchisement. Conservatives argued that these efforts amount to a federal commandeering of state responsibilities, favoring, instead, the responsibility of states to ensure fair and free elections. The bill died in the Senate in 2022.
The likelihood is that there will be no new national plan to address voting rights. Instead, state policies will diverge more than in the immediate past, although no one is arguing that states will return to the severity of Jim Crow-era disenfranchisement. More Democratic states will continue to liberalize voting regulations; more Republican states, seeking to address voter concerns about fraud, will do the opposite. In California, more counties are adopting the Voter’s Choice Act for the 2022 electoral cycle, making voting more convenient for millions.
Another significant electoral reform in California is the California Voters Rights Act of 2002 (CVRA). The focus of this Act is to encourage locally elected bodies to be ethnically and racially representative of the people they represent. In particular, the concern is that the rights of voters based on race, color, or language to influence the outcome of an election are diluted by at-large elections (where representatives are elected in city-wide ballots).
Residents can use the CVRA to sue local governments, asking that a city switch from at-large elections to district elections. District elections may better reflect neighborhood demographic composition or the general demographics of an entire city. Under the threat of lawsuits, many city councils, school districts, and special districts are rapidly changing their electoral systems. By 2022, at least 88 cities in California changed to district elections. A survey of governments that have replaced at-large with district elections shows increased minority representation (Richomme). The pandemic delayed implementation, but this change will continue in the coming years (League of California Cities).
In summary, voting rights continue to be a very significant issue. Conservatives worry about voter fraud, liberals about voter suppression. In California, the trend is toward making voting more accessible and reforming the drawing of electoral districts to represent all ethnic and racial groups better. However, many of these reforms depend on a federal judiciary to rule that California reforms are consistent with federal law.
