Differing Perspectives on the History of Voting Rights and Implications Today
A look into the Independent Nature of State and Local Government Elections
By John Fortier – Resident Scholar, American Enterprise Institute
The American government was designed with a heavy dose of federalism. Perhaps nowhere is this more prevalent than in American elections, which are mostly governed by state law and administered by local officials but where federal law takes precedence in certain key areas. This federalism of elections frustrates some. The lack of uniformity, the difficulty of reform, the complexities of elections compared to other countries are all common complaints. But federalism in elections does have virtues: the nationwide corruption prevention, the experimentation, the tailoring of voting practices to fit state and local customs and needs. For better or worse, we are likely to maintain our decentralized election structures. As we see from recent reform efforts, we may adopt nationwide reforms in some limited areas where there is broad-based support, but most of our reforms will be varied state and local.
The U.S. Constitution Enshrines the Idea of Federalism in Elections
Article I, Section 4, Clause 1: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…”
This constitutional division was borne out by our national history. State laws have been primary and dominant, and local governments are the primary administrators of elections. This makes American elections some of the most decentralized in the world. While some have argued that the Constitution does not give all power to run federal elections to the states, Congress can only weigh in with national laws if it wants to override state laws.
Consider the differences in state practices. States have different hours at polling places, different laws about the certification and purchase of voting machines, great differences in mail-in ballot restrictions, differences in early voting rules. Some other examples are the varying rules about voter identification with some requiring photo identification, others requiring a signature or simply to state your name and address, different rules about felon voting, different implementation of modes of voter registration, and different rules about counting and certifying the vote.
How Does the U.S. Voting System Compare?
Most countries in the world have a fair amount of uniformity in voting. Even countries that have influential states or provinces with local governments often have similar ballots, government offices that appear on the ballot, and election administration.
This is not the case in the US. America is one of the few countries without a national electoral commission. Additionally, local governments vary widely in size and organization. For example, elections are run by local officials in Los Angeles County, with a population of over ten million, and in small towns with a population under 100. Depending on which state you live in, you might see a Secretary of State, Attorney General, Land Commissioner, or judge on the ballot. At the local level, you might see mayors, city councilors, school boards, library trustees, sheriffs, coroners, or dog catchers.
Modern Federal Legislation for Elections
Despite this diversity in elections, Congress has weighed in on certain areas with a national standard. Key examples include voter registration regulation, funds for upgrading voting technology and voter registrations systems, and overseas absentee ballot legislation. Similarly, while elections have been funded almost exclusively at the state and local level, Congress did step in with federal funding after the 2000 election for the purchase of new voting technology and again in recent years for election security and dealing with the election run during the pandemic.
Election reform in the coming years is likely to be done primarily at the state and local levels. Take, for example, the recent For the People Act, an example of federal legislation proposed by congressional Democrats. It is an ambitious bill taking on large areas of the voting process: encouragement of voting by mail, automatic registration, federal public financing for political campaigns, and redistricting reform to name a few. In each of these areas, there are strong partisan as well as regional divides and tension between national law and local election practices. This is not to say that some national reforms might not be enacted, but they will be difficult to achieve and will require some level of partisan, state, and regional consensus.
Mail-in Ballots Lead to more Differences Between States
The real action has been and will be in the states, reflecting the fact that on many issues there is no consensus between the parties on a vision for running elections. Take for example the issue of voting by mail. Prior to 2020, there had been a thirty-year trend of increased voting by mail and over twenty percent of all ballots were cast by mail in 2016. But this trend varied state by state. Some states, such as Oregon and Washington, had moved to nearly 100% voting by mail. Others, especially in the northeast, looked more traditional with the vast majority of votes cast on Election Day at polling places. With the COVID-19 pandemic, voting by mail skyrocketed to over 40% of ballots cast. With this greater interest in voting by mail and changes in state laws, there was also an emerging division between Republicans and Democrats on voting by mail. Large majorities of Democrats favored voting by mail, while large majorities of Republicans preferred voting in person.
Blue states, like New Jersey, have been enacting laws to move to more voting by mail. Republican-controlled states like Georgia and Texas returned to their pre-COVID-19 roots and enacted laws that pointed in the direction of more voting in person at early voting sites and on Election Day.
While there has been controversy over these efforts, it does show the workings of federalism. If we had a national consensus on this issue, federal legislation would have an easy path to passage. But, as it stands, states are reflecting differences in the philosophy of the parties. That is the federalism that we have come to expect in voting and that is not likely going away.
Jim Crow Returns to Deconstruct Voting Rights
By Walter Suza – Adjunct Associate Professor, Iowa State University
The Long Road to Voting Rights for All
“Those who cannot remember the past are condemned to repeat it.” — George Santayana.
The Founding Fathers declared in 1776 that “All men are created equal, that they are endowed by their Creator with certain unalienable Rights.” Yet they still left out women and ignored the injustice of slavery. Even after the 13th Amendment was passed to abolish slavery in 1865, Southern states still refused to grant equality to Black people. Instead, they created Black codes and used them to subjugate former enslaved Africans and trap them in predatory labor contracts. Then came the 14th Amendment of 1866, which would have granted citizenship and equal protection to former enslaved Africans, yet still failed to grant them the right to vote.
Then came the 15th Amendment of 1870, which tells us: “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.” Instead, Southern states enacted Jim Crow laws, which subjected African Americans to egregious abuse, including poll taxes, literacy tests, intimidation, and violence to deny them their voting rights.
Even though the 15th Amendment bestowed Congress with the power to protect voting rights, it would take an additional 50 years for the 19th Amendment to pass in 1920 to protect women’s right to vote yet Black women still struggled to vote.
Sacrifices for the Right to Vote
“All we wanted to be was ordinary citizens,” said Medgar Evers, a Black civil rights activist who was shot and killed by a member of the Ku Klux Klan in Jackson, Mississippi in 1963, a couple of months before Dr. Martin Luther King’s “I Have a Dream” speech. Although Evers was denied a chance to see the Dream, he died holding a t-shirt with the inscription, “Jim Crow Must Go.”
He would not be the last to spill his blood. James Earl Chaney, Michael Henry Schwerner, and Andrew Goodman were murdered for their participation in the 1964 Freedom Summer to register Black voters in Mississippi.
Jim Crow persisted and armed Southern politicians with the filibuster, an insidious tool that they used to kill civil rights bills. The most notable example being when Sen. Strom Thurmond of South Carolina spoke for 24 hours and 18 minutes to try to kill the 1957 Civil Rights Act. Seven years later, several Southern senators used the filibuster in their attempt to kill the Civil Rights Act of 1964.
African Americans would endure more suffering to earn their right to vote. Civil rights protesters marching from Selma to Montgomery witnessed and experienced flesh torn apart in the jaws of canines, skulls fractured by batons, lungs suffocated by teargas, and skin peeled from the flesh by water cannons so the Voting Rights Act could pass in 1965.
The Return of Jim Crow
Despite this history, in 2013, the decision by the Supreme Court in Shelby County v. Holder weakened the Voting Rights Act by reducing transparency and fairness because of race. Last month, the Supreme Court did more damage to the Civil Rights Act through a 6-3 vote to kill a provision meant to protect minority voters from state laws that make it harder to vote.
The nation is also witnessing a relentless onslaught on voting rights fueled by the lie that the 2020 presidential election was rigged. Reaction to the lie resulted in the Jan. 6 insurrection and a coordinated effort in several GOP-led states to enact sweeping measures to suppress voting. The Brennan Center for Justice reports that in 17 states, 28 laws have been passed to make it difficult to vote by reducing early voting days or limiting access to voting absentee or by mail.
Jim Crow has returned. “This is Jim Crow in the 21st Century. It must end. We have a moral and Constitutional obligation to act,” said President Joe Biden in his response to the passing of restrictive voting laws in Georgia.
Obstructing the Solutions to Our Problem
The moral truth is that power once solely in the hands of white men denied African Americans and white women their right to vote. Through civil strife, today that power is meant to be in the hands of each American voter. Yet the political reality births skepticism that GOP lawmakers would use their power to make it easy for everyone to vote. This is why it does not make sense that Senators Joe Manchin and Kyrsten Sinema would still favor the filibuster, which was used by GOP senators just last month to stop the advancement of the For the People Act.
One would expect our sworn leaders to protect the Constitution, yet the John Lewis Voting Rights Advancement Act and the For the People Act, which would protect voting rights, have stalled in the Senate. “I believe that partisan voting legislation will destroy the already weakening binds of our democracy, and for that reason, I will vote against the For the People Act,” Manchin wrote in an op-ed in the Charleston Gazette-Mail.
What else has the strength to weaken our democracy than denying people their right to vote? How else can we protect the rights of millions who will be disenfranchised if we do not expand people’s access to the ballot box?
The Dangers of Voting No
By voting no, the lawmakers will vote against a bill that will make it easier to vote, end congressional gerrymandering, reform federal campaign finance laws, increase protection from foreign interference in U.S. elections, and strengthen government ethics rules. By voting no, the lawmakers will disregard the human suffering and loss during the Civil Rights movement. By voting no, the lawmakers will disregard the truth that African American men and women were lynched for fighting for our right to vote. By voting no, the lawmakers will disregard the truth that Dr. Martin Luther King was murdered because he fought for our right to vote.
To vote no is to ignore the long and bloody journey to voting rights. In an evenly split U.S. Senate, the no vote against the For the People Act is a bullet to the heart of democracy. John Lewis will turn over in his grave.
Protecting American Democracy
Let us not forget that Iowa was the final state to ratify the 15th Amendment, making it possible for Thomas Mundy Peterson to become the first Black man to vote. Let us not forget that Tennessee was the final state to ratify the 19th Amendment after its state legislator, Harry T. Burn took heed of his mother’s plea and used his vote to break a tie, making it possible for white women to vote.
John Lewis said: “The vote is precious. It is the most powerful non-violent tool we have in a democratic society.” Let us protect America’s democracy by not repeating the history of voter suppression. Let us protect our sacrosanct right to vote by supporting the John Lewis Voting Rights Advancement Act and the For the People Act.
This article is part of Divided We Fall’s “Constitutional Questions” series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are – and are not – implemented today. If you want to read more pieces like this, click here.
I read (For a week) the entire “Voting Rights Act”. In that act the authors attempted to fix problems than only months before they denied existed (Manipulation of votes in the Voting Machines” “Packing Votes in Drop Boxes” and more. Buried in “Finance Reform” was a poorly concealed bribe for partisan votes by instituting a 6 dollar for every 1 dollar raised (from tax payers) for for all candidates.(that 6:1 payout was named for small donations”.
This so called voter rights act would in fact end States rights to manage elections within their own states.
There is a case to be made about maintaining the spirit of the Constitution of the United States, which decentralizes political power through a federal system. John Fortier and I would likely find common ground regarding the enduring value and strength of (small r on purpose) republican self-government. Moreover, Fortier cites an often undervalued strength of decentralized elections – the reduced ability to manipulate or corrupt the process. However, the argument that the current push for “election integrity” in some states is reflective of the intention of the American Founding is neither compelling nor accurate. The attention Fortier pays to the lack of consensus between Democrats and Republicans, (while true; and is a factor that cannot be politically ignored) is not of much value when discussing the Constitution or the responsibilities of governments. Politicians and candidates, as well as jurisdictions, might chose to organize through partisan lenses. However both the tension stated by Fortier and organizational constructs are merely politically, not legally, substantial. Even if his argument about federalism and voting rights was compelling, a single political party (Democrats are not cooperating with any of these bills) passing bills which are clearly designed to maintain power through a reduction of who can vote, or to protect what is essentially minority rule, is neither within the spirit or letter of the original, or heretofore-amended Constitution; but more so reflects the fear of factions and demagogues expressed by leading founders.
It is clear that election “integrity” bills being pushed and signed into law in certain states are a smokescreen to better ensure Republican electoral victories. These bills were rarely ever mentioned prior to the 2020 election. They only appear now because former President Trump, who de facto leads the Republican Party, has traded in absolute fictions about election fraud. Despite the fact that virtually all election authorities, courts, and Congress affirmed what officials from the Departments of Homeland Security and Justice have concluded – that the election was free and fair, and the results were legitimate – Trump is doing exactly what he did in 2016 when Ted Cruz beat him in the Iowa primary, and when Hillary Clinton beat him the popular vote, fabricating lies about election fraud, and undermining the integrity of our institutions to sooth a bruised ego. Thus, we can readily discern that the preponderance of these bills are not rooted in any harking to the political philosophy of the founding, nor are they an effective piece of public policy for ensuring integrity or access to the polls. They are political tools, dressed up as integrity measures. Walter Suza suggested this as a new form of Jim Crowe, one that is not only racially influenced, but is also motivated by a far less clearly understood political and cultural divide.
The point about national corruption prevention made by Fortier, while salient, is frankly moot in any originalist interpretation of the Constitution, because in the original Constitution there are no national elections. In fact voters were only able to vote for one office at the federal level (representative in the House). Localized and state-run elections being baked into the framework was arguably to leverage already understood, and already in place election management infrastructure (even under British colonial rule there were elections in America). The reliance on this infrastructure was adhered to even for ratification of the Constitution – where ratifying conventions were held in the individual states. Specifically, state legislatures did not adopt the new Constitution, but states approved through ratifying conventions because the Constitution’s pact is between the people living in the states, not between the states themselves. As the famous, Patrick Henry lamented the document begins with “We the people,” not we the states. Nevertheless, the politics of 1787 and ratification management harnessed the infrastructure for practical and philosophical purposes. Now, such practicalities are less germane as the world has become a much smaller place, and our nation is no longer one small, precarious upstart republic nestled in a hemisphere dominated by Europe’s royal courts, but is one of only a few true global superpowers. Suffice to say that the dynamics of modernity are different and relevant, in as much as the politics and practicalities of antiquity were to our founders.
Furthermore, and perhaps most importantly, we the people, have since amended the Constitution 27 times to either make deliberate changes to what was originally intended or amendeded; or to affect the unintended consequences of what was originally written. Seven of these amendments (about 25%) specifically relate to elections and or voting rights, notably, Amendments XXVI, which provides for universal suffrage for all citizens over the age of 18 in general and primary elections. To ensure that constitutionally enshrined right, Congress (i.e. the federal government, not the states) was vested with the power to enforce that right via “appropriate legislation.” Whether we here in this debate agree or disagree that broadened federal power to enforce access to the polls is a good or bad thing, it is clear via the Constitution of the United States that Congress has that power. It is also rather clear why in the XXVIth Amendment (and others, XXV and XXIV) the people gave this power to Congress. As Suza indicated there is a long history of the states failing to afford these protections when left to their own devices. When passed, these amendments recognized that failure, and changes were made so as to protect and broaden the number of people who can participate in our elections. Thus, these current bills, which remove people from voter rolls are the antithesis of that noble history. Even if we ignore the absurd claims that these bills fix problems with dead people voting, and rampant technological fraud (which do not exist) they clearly go against the grain of the voting rights protections that have been subsequently enshrined in the Constitution through the amendment process.
Protecting voter rights through Congressional legislation is not some betrayal of the brilliance of our founding, but is reflective of the historical arch of its brilliance. Our system of government can be changed to meet the evolution of society and modernity, and our people have long sought to bring more voices to the polls, so that those we elect to represent us are a greater reflection of who we are in our entirety. The promises of our founding have heretofore, more-than-less, been continuously labored toward. These dressed-up integrity bills are neither within our founding spirit, or the historical arch of making our democratic-republic better and more representational. Therefore, we must look at the obviously unnecessarily restrictive measures for what they are – attacks on the voting public, and a perversion of that brilliant founding and the arch of our national history.