How Inequality Impacts Voting Behavior

A perspective on the economics of voting is best seen by looking back at the history of voting in the United States and looking forward to the present and into the future. An examination of our voting rights journey, beginning from its inception in 1787 with the drafting of the Constitution of the United States to the present, concedes economic justice has traditionally been a driver of voting behavior and participation. Civil rights and social justice have been drivers as well. Recognizing the escalation of racial and social justice activism, the makeup of the judiciary, the decisions of the courts, and the implications of those decisions on the Black, Indigenous, and People of Color (BIPOC) electorate supports an inquiry as to whether this pattern may hold true moving forward.

Brief History of Voting in the United States

When the Constitution of the United States was ratified, “We the People,” described less than 6 percent of the population—white landowners who owned property or paid poll taxes. Sadly, more than two centuries after its ratification, 235 years to be exact, we are continuing to fight to ensure and secure the right of all U.S. citizens to exercise their civic responsibility to engage in free and fair elections.

The long march toward ensuring the right to vote began following the Civil War with the post-slavery Civil Rights Act of 1866, which declared “all persons born in the United States to be citizens, without distinction of race or color, or previous condition of slavery or involuntary servitude.” However lofty, this pivotal act excluded Native Americans. And, though the Fifteenth Amendment, passed in 1870, granted all U.S. citizens the right to vote regardless of race, it wasn’t until the Snyder Act of 1924 that Native Americans born in the United States were admitted to full citizenship and able to enjoy the rights granted by this amendment.

Thus, it was by the exhaustive path of the Civil Rights Act of 1866, the ratification of Constitutional Amendment 13: Abolition of Slavery, Amendment 14: Civil Rights (1868), Amendment 15: Voting Rights (1870), Amendment 19: Women’s Right to Vote (1920), the Snyder Act of 1924, the passage of the Civil Rights Act of 1964 (CRA), Voting Rights Act of 1965 (VRA), as well as the passage of an extension to the VRA in 1975 with Section 203 that provided a provision for language minorities—Latinos, Asian Americans, and Native Americans that is currently extended through 2032—that the right to vote was effectively granted to all U.S. citizens over the age of 18, who were not declared mentally incompetent or incarcerated.

The Income Divide and the Civil Rights Movement

The VRA, described by many as the crown jewel of the civil rights movement, resulted in huge voter registration drives for Black citizens. The expansion of the right to vote also created a commensurate lessening of the income divide. After all, historians, economists, and academics have studied statistics and trends in voting and income and come to the unsurprising conclusion that income and voter turnout are intertwined. Historically, and not just in the United States, voters with higher incomes are able to participate in the electoral process more easily, thus engaging in and controlling the legislative debate in terms that will most likely favor their interests. This paradigm became very clear following the enactment of the CRA (i.e., in 1964, Title VII prohibited employment discrimination based on race, color, religion, or national origin, and, in 1968, Title VIII prohibited discrimination in the sale, rental, or financing of housing based on race, color, religion, or national origin). Provisions of the VRA abolished literacy tests and residency requirements, created language minority provisions for ballots, and initially created a preclearance requirement that all jurisdictions with a history of voting discrimination must receive approval from the U.S. Department of Justice before making material changes to their election laws, all of which served to increase the workforce and wages incentivizing voter engagement. The income gap also began to narrow with the National Labor Relations Act of 1966, which increased the minimum wage and led to increases in access to education and health care for BIPOC communities.

New research further exploring the impact of the VRA finds it reduced income inequality between Blacks and whites. However, since the U.S. Supreme Court (SCOTUS) decision in Shelby County v. Holder (2013), counties previously covered by Section 5 of the VRA saw a decrease in public sector wages for Black workers relative to wages for white workers. The impact appears as early as five years after the decision. By contrast, between 1950 and 1980, counties subject to preclearance experienced larger reductions in the Black-white wage gap.

The Economy and COVID-19

The 2020 COVID-19 pandemic had a great impact on the economy. In some ways, it truly highlighted income disparities in the United States. In fact, COVID’s economic impact was first felt by BIPOC and other historically marginalized and underserved communities, as they were generally the first to be furloughed or laid off. As members of these communities often were not in positions to work remotely, they were more susceptible to contracting COVID. There is also a corollary health burden felt by BIPOC and lower-income communities that was exacerbated by COVID.

In the past, economic disparities were an incentive to vote, a reason to engage in the political process and to become a part of the debate. It has been said, “if you’re not at the table, you’re on the menu.” And while that may be true, times have changed, and not for the better for BIPOC and other underserved communities relative to voting rights. We now live in a world where the march for voting rights is no longer a slow and steady march forward but has suffered major steps backward. These developments coupled with increasing income disparities may be a bridge too far for some. There are those who believe the system is rigged against them and that their vote does not count. Although these views are understandable given intensified voter suppression tactics, it is the profound duty of the legal profession, with its calling for the rule of law and equal access to justice, to ensure election integrity and protect our democratic processes.

Twenty-First Century: Effects of Judicial and Legislative Actions on Voting

As we look to other motivators for voter engagement broadly, and BIPOC engagement specifically, there is a consideration for the intensifying momentum and movement building around court decisions and legislative actions addressing not only voting rights but also other social justice issues that have caused unrest and uncertainty within communities across the country on the right, the left, and all that are in between.

Consideration of more recent court rulings and legislative actions may assist in the prediction of the anticipated impact on future voter engagement. We can first begin with the preclearance requirement that was essentially nullified by the U.S. Supreme Court (SCOTUS) in Shelby. Although the Court did not rule on the constitutionality of the preclearance requirement, it did rule that the 40-year coverage formula determining which jurisdictions were covered by the VRA was outdated and, thus, unconstitutional. This determination eviscerated the VRA’s enforcement mechanism, thus rendering it toothless.

SCOTUS in Brnovich v. Democratic National Committee (2021) brings further focus on issues that remind BIPOC communities how the fights of the past are returning as they again must protect their right to vote. Brnovich challenged two Arizona voting-related policies as racially discriminatory, and the July 1, 2021, decision levied another blow to the VRA by making a challenge to discriminatory voting laws more difficult under Section 2, which prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups. This decision effectively makes it more difficult to have faith in or rely on Section 2 of the VRA following the Shelby decision, as the country faces intensified discriminatory and restrictive voting measures across multiple states.

The George Floyd Law Enforcement Trust and Integrity Act of 2021 was passed on a mostly party-line vote of 220 to 212 in the U.S. House of Representatives but was blocked in the evenly divided U.S. Senate in September 2021. This act was a rallying cry for social justice and BIPOC communities, as it addressed the very framework of police reform. Its defeat was a devastating blow to the reform movement and is anticipated to be a motivator for increased voter engagement, as it rallied a broad coalition of support and remains a social justice focus, especially within the Black community.

Most recently, in Dobbs v. Jackson Women’s Health Organization (2022), SCOTUS on June 24, 2022, effectively overturned two landmark decisions, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), and held that the Constitution does not confer a right to abortion. This decision has far-reaching effects, as it abandons decades of precedent while conferring all regulatory power to the states. State legislatures passed “trigger” bans in at least 13 states, which made abortion illegal immediately upon Roe’s reversal or shortly thereafter. The implications of this ruling on voting are anticipated to be considerable, as women are estimated to represent 68.4 percent of voter turnout, and this demographic transcends racial and ethnic lines.

These examples—and there are many more—demonstrate drivers, in addition to the economy, that may outperform the economy in terms of generating significant voter engagement in 2022 and beyond.

Conclusion

Whether our electorate is driven by the economy or social justice, we must ensure the fullest possible participation of all our citizenry, especially historically underserved and marginalized BIPOC communities, in our democratic process. It will take time to reclaim crucial lost ground in the voting rights arena, yet we know that it is critical that the path forward begins now.

We are at a seminal moment in our democracy. As a legal profession, we are honor bound to work to ensure free, fair, safe, and secure elections for all. The ABA Section of Civil Rights and Social Justice has created a new initiative, Perfecting Democracy, to do just that. Our goal is to recruit and connect lawyers and law students with local and national partner organizations that engage in democracy building, voting rights, and election protection. We know that lawyers and law students possess skillsets that can greatly move our democracy forward and that civic engagement organizations across the nation are seeking support from the legal community to ensure the right to vote for so many. Please join us as we work to guarantee that our democracy is secure and vibrant by ensuring access to the ballot for all eligible citizens.