Most important, in practice, our elected officials decide who can vote for them and how to conduct elections. Who is elected matters, and it matters who votes.
The United States has yet to achieve full participation in elections by all eligible citizens. This means that we are governed not by the will of the whole people, but by the will of a minority of eligible voters. The history of voting in the United States is one of fits and starts. The right to vote must be won over and over again. In 1776, only white men with property enjoyed the franchise. After the Civil War, newly enfranchised African American men exercised their rights in sufficient numbers to elect African American representatives to state legislatures and Congress. When President Rutherford Hayes pulled federal troops out of the South in 1877, however, former Confederate states felt free to reinstate minority white rule with Jim Crow laws. They imposed property ownership, literacy tests, poll taxes, and other conditions designed to exclude formerly enslaved persons from voting. (I ask my graduate students to take one of these deliberately confusing literacy tests; no can answer all the questions, much less correctly, in the short time originally prescribed for prospective voters of color.)
White backlash against Brown v. Board of Education (1954) spurred state laws and locally improvised intimidation to prevent African Americans from voting. Not until the Voting Rights Act of 1965 was there renewed federal enforcement of their right to vote. The act required states with a history of discrimination to obtain federal preclearance before instituting changes in their voting laws or practices. But Shelby County v. Holder, 570 U.S. 529 (2013) effectively ended federal preclearance by finding that the historical data on discrimination did not necessarily represent current practices. Since then, many states—not all in the South—have adopted new conditions on voting to deter or exclude disfavored voters. The Lawyers Committee for Civil Rights under Law reports that 340 instances of racially discriminatory voting practices by state and local governments have been found or litigated between 1994 and 2019.
The Section of Civil Rights and Social Justice (CRSJ) got a closer look at contemporary obstacles to voting and fair elections in our Fall 2019 Meeting in Atlanta, Georgia, where we launched our Fair Elections and Voting Rights Initiative. Experts in election law and practice described indefensible violations of human rights. For example, young adults helping citizens to register to vote were charged with voter fraud carrying a penalty of 10 years in prison and a $100,000 fine, for a mistake in transcribing the spelling of a person’s name. Polling places were removed from neighborhoods occupied predominantly by people of color. Voting districts have been gerrymandered to favor a particular political party. Campaigns have falsely advertised that voting for members of a disfavored political party will take place on a date after the actual election. Voting machines malfunctioned. Polling places lack paper ballots or records to verify or audit election results.
In 2019, Georgia and Wisconsin each purged between 100,000 and 200,000 people from the voter rolls. A court halted Texas’s effort to purge 90,000 voters, many found to be newly naturalized citizens. North Carolina’s new voter ID law is being challenged on the ground that it is likely to deter Latinx and African American citizens from voting.
Other states, however, are safeguarding the human right to vote. Newly elected Governor Andy Beshear granted voting rights by executive order to 100,000 Kentuckians with past criminal convictions. Governor Phil Murphy of New Jersey signed legislation granting voting rights to 80,000 citizens on probation or parole. Students in Rhode Island are suing the Governor to obtain an education in civic responsibilities, including voting and jury service.
This issue of Human Rights offers an excellent set of articles examining obstacles to voting—both historical and contemporary—and explores where lawyers can make a difference. Read them and be inspired to take action to ensure that all eligible voters cast their ballots and have them counted.
The legal profession has stepped up to represent and support the right to vote and fair election processes. CRSJ is doing its part, including educating the public with webinars and two programs at the ABA Midyear Meeting in Austin, Texas: “One Person, (N)one Vote: Gerrymandering with the Help of the Disenfranchised” and “From Separate But Equal to Affirmative Action: Where Are We 70 Years After Sweatt v. Painter?” Women voters, especially women of color, have been a decisive factor in recent elections and may decide who becomes our next president and which party controls the Senate and the House of Representatives.
"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. Constitution, Amendment XIX (Aug. 18, 1920)
The Section enthusiastically supports ABA President Judy Perry Martinez’s celebration of the 100th anniversary of the Nineteenth Amendment in 2020. Politicians should never forget Abigail Adam’s admonition to “remember the ladies.” Nor her warning that women “will not hold ourselves bound by any laws in which we have no voice or representation.” No American should be bound by any law in which they have no voice or representation. Thus, no American citizen should be denied the vote.