November 25, 2019 Article 3

Ensuring Access to the Ballot Box

Elizabeth Yang

History of Voting in the United States

The ability to vote is the trademark of any healthy and vibrant democracy, and in fact the United States of America was founded on this very important premise. But, as often is the case, the reality was very different from the perceived belief that most hold—that in 1787 the Constitution granted the right to vote to all citizens. The truth is that Article I, Section 2 of the Constitution refers to “the People of the several States” having the right to vote for members of the House of Representatives. Practically speaking, at that time “the People” were not all citizens; instead they were white males who either owned property, met certain religious requirements, or paid poll taxes, and at that time represented approximately 6 percent of the adult population. From this well-known, or perhaps not so well-known, fact of history we can begin to see that the struggle to expand the right to vote started with its very inception.

By 1850, all states had abolished property and religious requirements, and thus the number of adult white males who were entitled to vote grew, but poll taxes and literacy tests remained. In 1868, the 14th[JD1]  Amendment granted citizenship to all people born or naturalized in the United States. In 1870, following the Civil War, the 15th Amendment was adopted, which stated, “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.” As in the case of the adoption of the original Constitution, the practical effect of the 15th Amendment still left many African American males disenfranchised due to the use of poll taxes, literacy or “good character” tests, and grandfather clauses, which allowed anyone who had voted before 1866 or was a descendant of someone who had voted before then, to be exempt from restrictions to voting. In 1920, as a result of the women’s suffrage movement and the increased role of women in World War I efforts, the 19th Amendment extended the right to vote to women. In 1964, poll taxes were abolished through the adoption of the 24th Amendment. Finally, in 1971, in the midst of heavy student protests against the Vietnam War, the 26th Amendment lowered the age of voting from 21 to 18 years of age.

The voting-related amendments to the Constitution can be seen through important stages of our history and provide a framework for extensions of suffrage in the United States. The Revolutionary War brought the birth of the United States of America and the right to vote; the Civil War led to the recognition of African Americans as citizens, and thus entitled to vote; World War I and the women’s suffrage movement extended the right to women; and finally the Vietnam War lowered the voting age to 18. But, the most pivotal and meaningful expansion of the right to vote was realized through the civil rights movement of the 1960s. The Voting Rights Act of 1965, considered by many to be the crown jewel of the civil rights movement, serves as the basis of current and future efforts to ensure equal access to the ballot box for all Americans. The Voting Rights Act was created to provide a more current foundation and procedure, almost like a floor without a ceiling, to rectify a history of racial discrimination in voting and to provide a vehicle for protecting the right of eligible citizens to participate in our electoral process going forward.

History of the Voting Rights Act (1965–2019)

In 1965, the Voting Rights Act was enacted, with the purpose of increasing voter registration and participation by all citizens. The act repealed literacy tests and other devices that had been used as a means of suppressing the right to vote in jurisdictions with a history of discrimination. The key prongs of the act were Section 2, which prohibited the denial of voting rights on account of race or color, and Section 5, which required that covered jurisdictions (defined as jurisdictions with a history of discrimination, that used a test to deny the right to vote, and had registered less than 50 percent of the voting age population by November 1, 1964) to seek approval from the federal government before making certain changes to their election laws or electoral processes. Thus, Section 5 jurisdictions, generally located in the South, could not make any changes to election laws or voter registration and voting procedures without the preclearance of the U.S. attorney general, who would be responsible for determining whether or not such changes would have a discriminatory effect. As an example, proposed changes in those covered jurisdictions, to such details as polling hours, voter registration requirements, and voting machinery, would have to be precleared by the U.S. Department of Justice. The act also provided for federal examiners for voter registration and federal election observers. Following the enactment of this act, nearly one million new African American voters were registered to vote.

In 1970, the act was extended for another five years and all literacy tests were banned in all states and jurisdictions.

In 1975, the Voting Rights Act was extended for another five years and amended to require that oral assistance or bilingual ballots (in the minority languages of American Indians, Asian Americans, Alaskan Natives, and Spanish-heritage citizens) be offered in political subdivisions where at least 5 percent of the population or more than 10,000 voting-age citizens belong to a single language minority group and have limited English language proficiency. Today, as an example of this, Los Angeles County, the largest electoral jurisdiction in the nation, with 4.7 million registered voters, is required to provide bilingual assistance to native speakers of Armenian, Chinese, Cambodian/Khmer, Farsi, Korean, Spanish, Tagalog/Filipino, and Vietnamese.

In 1982 and 1992, the Voting Rights Act was extended again, with additional extensions to bilingual voting assistance.

The most recent renewal of the Voting Rights Act was signed into law on July 27, 2006, as The Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act. The act was renewed for another 25 years and serves as a testament to the importance of the civil rights movement in its original enactment in 1965, as each of the named individuals played a prominent role in the civil rights movement.

On June 25, 2013, the Supreme Court ruled in Shelby County v. Holder, a case which sought to have Section 4b, which mandated the coverage formula that defined covered jurisdictions, and Section 5, which mandated preclearance of covered jurisdictions, of the Voting Rights Act declared unconstitutional. The Court invalidated Section 4b, ruling that it was unconstitutional and accepting the argument that the coverage formula was based on 40-year-old data and thus dated. The Court did not rule on Section 5, so in theory pre-clearance still exists. Unfortunately, reality is again far from theory in voting rights, as Shelby removed the ability to define which jurisdictions should be covered by Section 5. Simply put, without Section 4b there can be no Section 5, the end result being that a key protective element of the Voting Rights Act has been rendered toothless. Congress could develop a legislative remedy by creating a new coverage formula; however, given the current state of partisanship in Washington, DC, such action does not seem likely in the near future.

Current Challenges to Ballot Access

Elections in the United States are administered at the state and local levels, as delegated in the U.S. Constitution. Thus, the current state of voting rights can be best seen through a comparison of legislation and trends in the various states. There are many issues to consider, but these selected below are intended to help inform a discussion of recent U.S. Supreme Court decisions, policy debates, and very real ideological differences, and how these matters impact the right to cast a vote.

Voter Identification Laws

Voter identification continues to be a subject of much scrutiny. In fact, the Help America Vote Act of 2002, a concerted national election reform package enacted after Bush v. Gore, mandates that first-time voters who register by mail must show identification, either photo or paper, in order to vote for the first time. The issue also landed on the steps of the Supreme Court over a decade ago, in 2008, with Crawford v. Marion County Election Board. The Court ruled that Indiana’s law requiring identification to vote did not violate the Constitution. Even with this recent history, in many ways voter identification is the embodiment of the struggle for a fundamental consensus in this area of state policy. Some believe that voter identification is necessary to ensure that the correct individual is voting, and thus identification serves as a deterrent to voter fraud; others believe that voter fraud is nonexistent and is simply another way to effectively disenfranchise certain parts of the population. For some, the prospect of presenting voter identification at the polls is easy: just open your wallet and show your driver’s license and you’re done—identity confirmed. But, for some, they just don’t have any government-issued identification. These people tend to be elderly, members of minority populations, homeless, and impoverished individuals. Currently, 34 states require some form of identification to vote. Statistics would suggest that Shelby has had an impact on the ability of states to enact stricter voter identification laws, as they are no longer required to seek preclearance before enacting changes. The challenge in voter identification is not in its existence; rather it is ensuring that if identification is required that the burden of having such a document is not a meaningful barrier to voting.

Felon Disenfranchisement

Felon disenfranchisement is the practice of prohibiting felons from voting, either permanently or for the period of incarceration or probation or parole. There is no standard view on this practice among states. The Supreme Court ruled it constitutional in 1974, with Richardson v. Ramirez. Currently two states, Vermont and Maine, allow felons to vote while incarcerated. Fourteen states and the District of Columbia prohibit felons from voting while incarcerated, but automatically reinstate voting rights upon release. Twenty-two states prohibit felons from voting while incarcerated and during parole or probation, and their rights are automatically reinstated following those proscribed periods, though fines and penalties may have to be paid. And finally, 12 states: Alabama, Arizona, Delaware, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee, Virginia, Wisconsin, and Wyoming, are amongst the strictest in the nation with no automatic reinstatement of rights after completion of sentence and parole or probation; some even require a pardon from the governor. In 2016, it is estimated that over 6 million otherwise eligible voters were unable to vote due to their status as felons or due to prior felony convictions. Studies have shown that this practice has been shown to disproportionately affect communities of color. Recent trends tend toward automatic reinstatement or loosening barriers for reinstatement, with Florida as the most recent example. This seems logical as studies have shown that successful reentry into society by former felons is affected by their ability to become a part of the community: by that logic reinstatement of voting rights should lead to lower recidivism (relapse into criminal behavior) rates.

Voter Roll Purges

Purging the voter roll is the practice of removing registered voters from the official voter registration list due to inactivity, death, or relocation out of the jurisdiction. This is another situation where there exists a tension in the administration of elections between the desire to have accurate voter rolls versus disenfranchising people by inappropriately removing them from the rolls. The problem is that once a voter has been removed from the rolls, they may not have an immediate remedy that will allow them to vote easily in the next scheduled election. The Supreme Court ruled on this matter very recently in 2018, in Husted v. A. Philip Randolph Institute, when it determined that Ohio’s controversial practice of purging voters if they failed to vote in consecutive elections was constitutional. Statistics show that Shelby has had a direct effect on increasing the volume of voter purges. The Brennan Center estimates that 17 million voters were purged from the rolls between 2016 and 2018; and of those purged, the rate was 40% higher in jurisdictions that were previously covered by preclearance under the original Section 5 of the Voting Rights Act. A possible solution to inaccurate voter purging may lie with technology, but as is often the case, technology in the election administration arena is often constrained by the need to keep the process as secure as possible. The practical effect of such constraints is that often different state-wide databases are not able to share information nor is there a national voter registration database. In the meantime, states should focus on providing meaningful and adequate notice and hearing to those whose rights to vote will be removed by voter roll purging.

Individuals Must Be Vigilant

The road to voting and electoral participation is, unfortunately, often a long and bumpy road, as we see from the need for so many constitutional amendments to create our basic framework to vote. The Voting Rights Act was created to ensure that the franchise of voting is open and accessible by as many eligible citizens as possible. Current events, politics, and society, of course, can influence trends in election law. Also, political ideology can be very rigid and cause a certain amount of intransigence or unwillingness to reach consensus. All of these factors, from both good and bad actors, remind us that, as individuals, we must always be vigilant about protecting our cherished right to vote, upon which this nation was founded.

Elizabeth M. Yang is President of WStrong, a business coaching and consulting firm, committed to solving problems, meeting challenges, and building teams, and dedicated to individual and institutional well-being and advancement. She is a national expert in election law and is currently a member of the American Bar Association Standing Committee on Election Law and its Commission on the 19th Amendment. Elizabeth also served as the Director of the Standing Committee for over two decades, where she focused on programming, policy development, and initiatives that highlighted the important role of the American Bar Association in the field of election law. She is an innovative and accomplished author, public speaker, and team builder who believes in mentoring and creating paths for advancement for her colleagues and associates. Ms. Yang earned her BA in Rhetoric and Communications Studies from the University of Virginia and a JD from Syracuse University College of Law.