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January 07, 2019 Human Rights

The Right to Vote in an Age of Discontent

by Daniel P. Tokaji

Rarely has the right to vote been so bitterly contested as it is today. From voter ID laws to gerrymandering and even the commissions formed to study our elections, the topic sparks fierce partisan rancor, a reflection of the partisan polarization that now infects almost every aspect of public life in America. In the midst of these battles, it is easy to overlook the larger threats to our system of government that existing voting rights law fails to address—but must, if American democracy is to survive. 

While the word “crisis” is so overused that we have become inured to it, there’s no better word for the immense political dysfunction that the United States now faces. This is reflected not only in the historically low levels of public approval for Congress and the president, but also a demonstrable loss of confidence in democracy itself. More and more Americans, especially millennials, believe that democracy is a “bad” or “very bad” way of running the country. Accompanying this loss of faith in democratic institutions is an alarming decline in the percentage of people who believe that it’s essential to live in a democracy. While the United States is not alone in this respect, the shift in public opinion here is especially dramatic—and especially troubling, given America’s historic leadership role among democratic countries. 

One might fairly ask what all of these problems have to do with the right to vote. The answer, I submit, is everything. 

To understand why, it’s essential to understand the foundation and history of voting in the United States, a story that’s interwoven with the struggle for racial justice. We must also understand the underlying pathologies in the American political system that have given rise to the present crisis of governance—in particular, the sharp increase in both partisan polarization and economic inequality. If these forces are not brought in check, further deterioration of American democracy is all but inevitable. 

The remainder of this article provides background on the right to vote and traces contemporary struggles over its realization. I discuss recent cases involving voter ID and other alleged forms of vote denial, as well as vote dilution cases and racial partisan gerrymandering. The article concludes by turning to a third type of voting rights injury, the disconnection of the vote from its core purpose of ensuring that all members of the political community are given equal consideration—what I call “vote dissociation.” Addressing the deep-seated pathologies in American democracy requires that we recognize vote dissociation as an injury to the right to vote, distinct from vote denial and vote dilution. 

Origins of the Right to Vote

The U.S. Constitution doesn’t expressly confer a right to vote on all citizens. In fact, the original Constitution didn’t include a right to vote at all. Neither the president nor U.S. senators were popularly elected, and the states were given authority to set qualifications and rules for voting in congressional elections. For the most part, only property-holding white men were allowed to vote. 

The idea that the right to vote is fundamental derives from constitutional amendments and judicial decisions following the Civil War. The Thirteenth Amendment (1865) abolished slavery but was silent on the right to vote. The Fourteenth Amendment (1868) conferred citizenship on everyone born or naturalized in the United States and subject to its jurisdiction and prohibited states from denying “equal protection of the laws.” These provisions were primarily designed to ensure equality of former slaves, though they did not expressly guarantee their right to vote. However, the Fourteenth Amendment also provided that states would lose representation in Congress if the right to vote of eligible citizens were denied or abridged. The Fifteenth Amendment (1870) expressly prohibited race discrimination with respect to the vote, though it did not expressly guarantee every adult citizen a right to vote. 

For a few years after the Civil War, the right to vote of newly freed African Americans was actually honored. African Americans were not just able to vote, but were elected to office in large numbers, with over 300 serving as legislators from southern states by the early 1870s. 

Several years later, in Yick Wo v. Hopkins (1886), the Supreme Court declared that voting is “a fundamental political right, because [it is] preservative of all rights.” The idea is that none of our interests are safe unless we’re able to vote. Whatever we want from our government—whether it’s jobs, an education for our children, a safe place to live, health care, or protection for our civil liberties—ultimately depends on being able to vote and elect representatives of our choice who will stand up for these interests. By the same token, if we’re not able to vote on equal terms with other citizens, then none of our other rights are safe. 

In this respect, the right to vote has a distinctly collective cast to it. While we vote as individuals, political organization takes place through groups, especially political parties. The right to vote is therefore associational in that it can only be understood by virtue of our relation to like-minded others—including the candidates, parties, and other voters with whom we seek to join our individual votes. 

The tragic irony is that, at the very moment the Supreme Court first declared the right to vote fundamental, African Americans were systematically being denied this right. The states of the former Confederacy used a variety of now-infamous devices to keep blacks from voting, including literacy tests, all-white primaries, poll taxes, and sometimes brutal violence. Yet for decades, the same Supreme Court that declared the right to vote fundamental did nothing to stop this mass disenfranchisement. Even after the Court eventually invalidated the all-white primary through a series of decisions in the mid-1900s found other ways to keep African Americans from voting. 

This disenfranchisement of southern blacks persisted for almost a century. Women finally won their right to vote in 1920, after a long struggle culminating in the Nineteenth Amendment’s ban on sex discrimination in voting. But African Africans were still kept from voting throughout most of the South until 1965, when President Lyndon Johnson signed the Voting Rights Act. 

There are three big lessons to be learned from this history. The first is that articulation of a right is one thing, realization of that right is quite another. It was one thing to outlaw race discrimination in voting or even to declare the right to vote fundamental. It was much more difficult to honor that promise. 

The second lesson is that progress with respect to the right to vote is neither consistent nor inevitable. It has instead come in fits and starts, with short bursts of rapid progress followed by long periods of stagnation or even retrogression. As explained below, we’re in just such a retrogressive period right now. 

The third lesson is that protection of the right to vote has mostly come through the political process, not from courts. Although lawyers like me may prefer to think of ourselves as heroes, courts haven’t been the prime movers in the struggle to protect and expand the right to vote. While the Supreme Court declared the right to vote fundamental, it was political actors who actually made that right a reality—through the Civil War Amendments, the Nineteenth Amendment, and the Voting Rights Act. 

That said, the courts have sometimes played a constructive role in protecting voting rights. The most notable examples come from the 1960s, when the Warren Court finally made good on its statement that the right to vote is fundamental. In Reynolds v. Sims (1964) and other decisions from this era, the Court understood the principle of “one person, one vote” to be a part of our Constitution, implicit in the Equal Protection Clause of the Fourteenth Amendment. The immediate result was to invalidate state legislative districting schemes, which frequently gave rural dwellers greater representation than those in urban and suburban areas. More broadly, the “one person, one vote” principle served as a rallying cry for those seeking equal voting rights for all, particularly racial minorities. 

A few years later, in Harper v. Virginia Board of Elections (1966), the Supreme Court invalidated the poll tax. Although this device was often used as a means to keep racial minorities from voting, that was not the rationale on which the Court rested. Instead, the Court reasoned that “[w]ealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.” Poll taxes were anathema to equal protection because they effectively excluded less affluent people from equal participation in the electoral process. 

Still, it’s important to remember that protection of the right to vote has mostly come through legislation rather than litigation. In the decades that followed, the Supreme Court often understood the right to vote narrowly. For example, the Court declined to invalidate practices that weaken the voting strength of African Americans, absent evidence of a racially discriminatory intent. It took a 1982 amendment to the Voting Rights Act to stop practices—like at-large elections and skewed legislative districts—that diluted minority votes. 

Important as these laws have been, they didn’t end the struggle over voting rights. To the contrary, they have achieved a new level of intensity—and a distinctive partisan cast—in this century. 

The Right to Vote Today

The idea that all eligible citizens should have an equal vote is deeply engrained in the American consciousness. Yet the very meaning of this ideal is fiercely contested, as much so now as at any time in the last half century. Recent and ongoing voting controversies demonstrate how partisan polarization has changed the public debate over voting rights. 

Broadly speaking, contemporary voting rights issues may be divided into two broad categories. The first is vote denial, which concerns burdens that some people face when trying to participate in the electoral process. The other is vote dilution, which concerns practices that are used to weaken the voting strength of an identifiable group, often defined by race or party affiliation. 

The first generation of voting rights legislation and litigation focused on vote denial, especially practices like literacy tests and poll taxes that were used to keep racial minorities from voting as late as the 1960s. Since the contested 2000 election, we’ve seen renewed attention to alleged burdens on voting, which I’ve termed “the new vote denial.” The most conspicuous example is strict voter ID. A handful of states have enacted laws requiring voters to present government-issued photo identification (like a driver’s license) to have their votes counted. In the United States, the political debate over such laws has a distinctly partisan character. Republicans generally argue that such laws are needed to prevent fraud and promote public confidence. Democrats typically argue that they will impede access, especially for poor people and racial minorities who are less likely to have the requisite ID. 

When voter ID and other burdens on voting are enacted into state law, they are frequently challenged in court. The Supreme Court has adopted a balancing test for assessing claims that such laws violate the constitutional right to vote. In Crawford v. Marion County Election Board (2008), a divided Supreme Court upheld Indiana’s law requiring most voters to present a photo ID. There was no majority opinion, but most of the justices applied a balancing test in such cases—weighing the burden imposed on voters against the state’s interests. Given the scant evidence of real harm to voters presented in Crawford, the Court allowed Indiana’s voter ID law to stand. But it left the door open to future lawsuits, especially where voters produce more convincing evidence that they’re being harmed.

Since Crawford, there have been many cases challenging voter ID laws and other restrictions on voting. Some have survived, while others have been struck down. In Veasey v. Abbott (2016), for example, the Fifth Circuit found that a Texas voter ID law discriminated against minority voters, in violation of the Voting Rights Act. On the other hand, in Frank v. Walker (2014), the Seventh Circuit upheld Wisconsin’s voter ID law. Yet, another court struck down an omnibus voting law in North Carolina that included not just voter ID but also restrictions on early voting, same-day registration, and the counting of provisional ballots. In North Carolina NAACP v. McCrory (2016), the Fourth Circuit found that the state legislature acted with racially discriminatory intent when it adopted this law, noting that the law “target[ed] African Americans with almost surgical precision.” 

The different outcomes in these cases may partly be explained by the strength of the evidence presented in court. In southern states with a checkered racial history, it’s generally easier to prove purposeful discrimination. In addition, the balancing test adopted by the Supreme Court in Crawford may sometimes lead reasonable judges to different conclusions. Two judges may view the same evidence and, quite plausibly, reach different conclusions about the impact on voters. They may also arrive at different conclusions about how well such voting restrictions serve the state’s interests, like fraud prevention and voter confidence. There’s no easy way around this problem. Judges are human, after all. As long as they’re called on to weigh the burdens of a law against its benefits, reasonable minds will often differ on what the result should be. And judges’ perceptions of the harms and benefits flowing from voting laws tend to track their ideological views. 

The battles outside the courtroom mirror those within it—and, if anything, are even more intense. An ongoing example is the commission created by President Donald Trump to investigate electoral integrity. Led by Vice President Pence and Kansas’s controversial Secretary of State Kris Kobach, the commission includes some of the staunchest advocates of voting restrictions but no credible voting rights advocates. This has alarmed many observers, who understandably fear that the commission will exaggerate the extent of voting fraud in the United States in an effort to justify new barriers to participation. 

A similar dynamic is evident in battles over vote dilution. For decades, the Voting Rights Act has been the focal point for lawsuits challenging redistricting plans and other practices alleged to diminish the voting strength of racial minority groups, particularly African Americans and Latinos. As noted above, the 1982 amendments to the Voting Rights Act strengthened protections against minority vote dilution. 

In addition, the Voting Rights Act—until recently—required some state and local government entities to get federal approval for voting changes before they could take effect. This requirement, commonly known as “preclearance,” applied to southern states under the original Voting Rights Act. It was later expanded to some other parts of the country with low rates of registration and participation. But in Shelby County v. Holder (2013), the Supreme Court invalidated the coverage formula used to determine which state and local jurisdictions were subject to preclearance. The consequence was to free those states and localities from the requirement that they get federal approval for new redistricting plans and other changes to their voting laws. 

In the years since Shelby County, a new kind of voting rights claim has emerged. More precisely, the Supreme Court has repurposed an old doctrine—commonly referred to as “racial gerrymandering”—for use in cases where racial minorities are concentrated into a small number of districts in an effort to weaken their collective voting strength. Back in the 1990s, the Court struck down several redistricting plans drawn by democratic state legislatures on the ground that race was the “predominant factor” motivating placement of voters. 

In recent cases out of Alabama, North Carolina, and Virginia, the Supreme Court has applied this doctrine to Republican-drawn districts with a majority or even super-majority of black voters. This type of claim may be thought of as “the new vote dilution” because it makes it more difficult to draw redistricting plans that weaken the voting strength of racial minorities by packing them into a small number of districts. In all these states, republican line-drawers argued that they needed to draw majority or even super-majority black districts to comply with the Voting Rights Act. Because African American voters usually support democratic candidates, packing them into a small number of districts has the effect of making the surrounding districts whiter and more republican. The overall effect is to dilute the voting strength of African Americans and Democrats, while increasing the number of safe republican seats. 

The Supreme Court invalidated this practice in Cooper v. Harris (2017), which challenged two majority-black congressional districts in North Carolina. The evidence showed that the republican-controlled state legislature set a 50-percent-plus-black target, thus making race the predominant factor in drawing the districts. There was no good reason to believe that this concentration of African Americans was necessary to comply with the Voting Rights Act, given that their preferred candidates were already winning up to 70 percent of the vote even where blacks made up less than a majority of the district. 

Perhaps the most important contemporary struggle over the right to vote is over the practice of partisan gerrymandering. It is a longstanding practice for the political party that controls the redistricting process to drawn plans that benefit that party, while weakening its principal opponent. Over time, the technological means for the dominant party to entrench itself in power have become more sophisticated. 

Ohio is an example of how partisan gerrymandering distorts representation and dilutes the votes of those supporting the non-dominant party. Although it is a consummate purple state, three-quarters of Ohio’s congressional districts (12 of 16) are Republican. This was no accident. The plan was designed in 2011 to pack as many Democrats as possible into four districts, thus making the remaining districts solidly Republican. And Ohio’s congressional gerrymander has worked exactly as planned. In the most recent congressional election, Republicans held all 12 of their seats, with the closest race decided by a whopping 19-percentage-point margin. 

The practice of partisan gerrymandering has come under fire for decades, but currently before the Supreme Court is the strongest challenge to partisan gerrymandering ever brought. The plaintiffs in Gill v. Whitford challenge Wisconsin’s state legislative redistricting plan, which has allowed the state’s Republicans to win a safe majority of districts even when democratic candidates garner more votes statewide. The net effect is to dilute the votes of people who support Democrats, compared to those who support Republicans. The plaintiffs argue that Wisconsin’s plan violates the constitutional right to vote under the Fourteenth Amendment and the right of association under the First Amendment. It remains to be seen how the Court will rule but, if it agrees that Wisconsin’s plan violates the Constitution, Gill v. Whitford will be the most significant voting rights decision in decades, limiting a practice that dilutes many citizens’ votes and degrades our democracy. 

The Future of the Right to Vote

Important as the new vote denial and vote dilution cases are, they don’t squarely address the existential crisis that the U.S. political system now faces. In recent decades, the United States has experienced not only a declining level of public confidence in our basic institutions and even democracy itself, but also an alarming rise in partisan polarization and accompanying political dysfunction. As it turns out, the rise in party polarization has accompanied another alarming megatrend: the dramatic increase in economic inequality. 

There’s also good reason to believe that these inequalities are closely connected to the megatrends of partisan polarization and economic inequality, both of which have increased sharply over the past four decades. In fact, if one goes back even further, it turns out that these two things have marched more or less in tandem for at least a century. Although the reasons why remain somewhat unclear, one would certainly expect that political polarization makes it more difficult to address persistent economic inequalities. The continuing inability of government to deal with this problem can only fuel popular discontent with the political system—a feeling that is abundantly evident in the current political environment. That in turn may drive people toward their extremes, thus making political polarization and attendant dysfunction worse.

The continuing viability of American democracy depends on reducing both partisan polarization and economic inequality. That in turn requires us to recognize an injury to the right to vote at the heart of these developments, one that existing vote denial and vote dilution law fail to capture. I use the term “vote dissociation” to refer to the disconnection of the vote from its core purpose of ensuring that the government accords equal concern to all members of the political community. If our system of government is to flourish, perhaps if it is to survive, depends on the right to vote evolving as it has in prior generations. 

To understand why this should be understood as a right-to-vote problem, we must return to the foundations of this right. Recall that the Supreme Court has long declared the right to vote fundamental because it’s preservative of all our other rights. If some citizens are prevented from voting entirely, then they cannot protect their other interests. The most egregious example is the mass disenfranchisement of African Americans during most of the twentieth century, which resulted in their other rights—in education, employment, criminal justice, and every other aspect of life—being systematically violated. So too, dilution of a group’s voting strength prevents them from protecting their other interests. Even after the Voting Rights Act restored the franchise to southern blacks, white Democrats used various devices—like at-large elections and skewed districts—to weaken their voting strength. 

While stopping vote denial and vote dilution are necessary preconditions to a fair political system, they aren’t sufficient to achieve this end. Even if all eligible citizens are able to cast votes and elect their representatives of choice, it doesn’t follow that their political influence will be equal. Inequalities in the process of governance may still give some people a greater voice than others in the decisions made by our government.

This problem isn’t merely hypothetical. A growing body of social science research demonstrates what many people have long suspected: Wealthy individuals and entities really do have much greater influence in government decisions than the rest of us. Legislators are much more responsive to the preferences of their affluent constituents than those lower down the economic ladder. The reasons why are quite complicated but, as one study succinctly puts it, “the rich have been able to use their resources to influence electoral, legislative, and regulatory processes through campaign contributions, lobbying, and revolving door employment of politicians and bureaucrats.” 

These growing disparities of political power are surely connected to the rise and declining faith in democracy that so many Americans are now experiencing. They have only increased in the wake of Citizens United v. FEC (2010), which opened the door to unlimited campaign spending by for-profit corporations and other entities. In a study entitled The New Soft Money (2014), Renata Strause and I traced the effects that nominally independent campaign spending is having on both elections and governance. The bottom line is that it makes our elected officials even more beholden to outside financial interests rather than the constituents they’re supposed to serve. 

Much of this will sound familiar to observers of the U.S. political system. What’s new is the idea that this should be understood as a voting rights problem. If the function of the right to vote, the very reason it’s regarded as fundamental, then the disproportionate power that the wealthy enjoy should be understood as a voting rights problem. This follows not just from the basic principle of one person, one vote, but from the central idea underlying Harper: that wealth or poverty shouldn’t determine one’s voice in the democratic process. 

If we are to address the debilitating problems that American democracy now faces, vote dissociation must be understood as a voting rights injury distinct from either vote denial or vote dilution. This requires us to understand the mechanisms that result in unequal political power—like campaign finance, lobbying, and conflicts of interest—as voting rights problems. Even election law experts don’t usually think of campaign finance and lobbying as affecting the right to vote. But we must start thinking in these terms if we’re to confront the enormous challenges that American democracy now faces. 

While the present condition of American democracy is dispiriting, we might find encouragement in the fact that it has faced grave challenges before. And the right to vote has evolved—though sometimes much too slowly—to meet these challenges. A similar evolution in our understanding and realization of the right to vote is vital now, if we are to confront the profound political dysfunction that the United States now faces. 

Daniel P. Tokaji is Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Law at The Ohio State University Moritz College of Law. His research focuses on election law, the right to vote, and the role of federal courts in promoting a fair and vibrant democracy.