February 11, 2020

Midyear 2020: What the past can teach us about voting rights today

This year marks big anniversaries for two of the most consequential amendments to the Constitution. It has been 150 years since the ratification of the 15th Amendment, which guaranteed the vote to men of all races, and 100 years since women were guaranteed the right to vote with the ratification of the 19th Amendment.

“Celebrating Democracy: 150 Years of Voting Rights,” a program at the ABA Midyear Meeting in Austin, Texas, Friday, Feb. 14, will trace the path of extending the franchise to all Americans and examine how voting rights can be protected in this presidential election year.

Panelist Mimi Marziani is president of the Texas Civil Rights Project, which focuses on voting rights, racial and economic justice and criminal justice reform. She sees eerie similarities between where the country was in 1920 and now.

“Rapidly shifting technology has upended lives; marked economic inequality has pushed power to a monied few; and our government has failed, over and over, to provide for the people,” she says. “One hundred years ago, faced with these challenges, women educated, organized and agitated – breaking preconceived notions about what women could do. Ultimately, these bold, creative activists succeeded in bringing our democracy closer to our constitutional ideals.”

Marziani plans to highlight lessons from that fight that can “guide our collective reform work in 2020."

Panelist Elizabeth Yang, a member of the ABA Standing Committee on Election Law and the Commission on the 19th Amendment and the president of consulting firm WStrong, concurs.  

“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,” she says. Because of this, Yang adds, “We must always be vigilant about protecting our cherished right to vote, upon which this nation was founded.”

Looking back, Yang notes that Article I, Section 2 of the Constitution, as originally drafted in 1787, granted the right to vote to “the People of the several States,” but in reality, that was only about 6% of the population – “generally white males who owned property or met certain religious requirements or paid poll taxes,” she says.

The 15th Amendment following the Civil War “purported to extend the right to all citizens, regardless of race, color or previous condition of servitude,” Yang says. “But the practical effect still left many African-American males disenfranchised due to the use of poll taxes and literacy or ‘good character’ tests.”

And, in 1920, the women’s suffrage movement and the increased role of women in World War I efforts led to the 19th Amendment.

Still, it took another 45 years for the two amendments to truly have an effect, Yang says, with the passage of the Voting Rights Act of 1965, “which abolished literacy tests, poll taxes and other discriminatory barriers to voting, thus ensuring the right to vote to all citizens, male and female, and regardless of race or color,” Yang says.

Even so, hurdles remain, including those resulting from the 2013 Supreme Court decision in the Alabama case of Shelby v. Holder. “The ability of states and localities to make changes to voter registration and voter identification requirements, polling locations and voter roll purges all have been affected by Shelby,” she says.

So, if protecting voting rights is still an issue in 2020, what can lawyers do to help?

Moderator Carl D. Smallwood of Columbus, Ohio, is past president of the Columbus Bar Association and a member of the ABA Commission on the 19th Amendment. He calls bar associations “trusted stakeholders in their communities,” who “speak without a partisan agenda” and “have both the opportunity and obligation to educate the public about the importance of the right to vote, and the importance that every citizen should register and exercise their right to participate in this democratic process.” 

Panelist Holli Welch, a lawyer with Woodhouse Roden Nethercott LLC in Cheyenne, Wyoming, and the ABA Young Lawyers Division representative for Wyoming and Colorado, says lawyers can “do what we do for a living – disseminate correct information.”

Lawyers are “respected advisors,” she says, who “can use our influence to help our community members overcome barriers to voters and feel engaged in the voting process. As part of this, we can be the change we want to see by being an active voter and encouraging others to vote.”

In addition, she calls on young lawyers to be “responsible social media users by critically evaluating all stories and only advancing or sharing those that are credible and from reliable sources.” Welch urges lawyers to volunteer at polling stations, assist in registering voters or getting voters to the polls.”

State Bar of Texas Law Related Education Director Jan Miller of Austin will also be on the panel. The program is sponsored by the National Conference of Bar Presidents, the National Associations of Bar Executives and National Conference of Bar Foundations.