Posted by For many years American students have been served a large portion of codswallop in their history and government classes. They have been told that the United States is a democracy, even though the basic institutions created in the Constitution are largely anti-democratic. These include, as I’ve discussed before, the Electoral College, the Senate, and the Supreme Court. There is one more issue I want to discuss: the historic tendency of American governments to limit the franchise.
Americans revolted because the British Government was seen to violate its own constitution. The Declaration of Independence lists twenty-seven grievances including: “He (King George III) has dissolved Representative Houses repeatedly;” “He has obstructed the Administration of Justice;” “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures;” “He has affected to render the Military independent of and superior to the Civil power;” “For imposing Taxes on us without our Consent;” and “For depriving us in many cases, of the benefits of Trial by Jury.” All of these offenses were seen as a trampling on the rights of the colonists as Englishmen.
The Founding Fathers wanted a system of government just like the one they were leaving, only without the King, and one that respected its own constitution. The British constitutional monarchy was not a democracy, but an oligarchy. According to the UK National Archives, the electorate in England and Wales consisted of 214,000 men, less than 3% of the total population. In Scotland, the electorate was even narrower. The franchise was equally limited in America before the Jacksonian Revolution. In 1824, the number of Americans who voted for President was 3.6% of the population.
The ruling oligarchs in colonial America wanted limited representative government, based on Locke’s ideas of natural rights and Montesquieu’s idea of a “a balance of power.” The core of the U.S. constitution is the Bill of Rights, which protects American freedoms from the overreach of their government. However, as I mentioned in previous posts, the Constitution had many anti-democratic elements baked into it: the Electoral College, the Senate in which representation was by state rather than by population, and the indirect manner in which Senators were chosen.
The representative government designed by the Constitution was to be a government of the elite by the elite and for the elite. Four score and seven years later as the franchise expanded, Lincoln could famously say, “government of the people, by the people, and for the people…” But it wasn’t until 1912 that the 17th Amendment was ratified allowing for the direct election of senators by the people.
The Right to Vote. In 1845, Congress mandated that the vote to elect presidential electors would be taken on the first Tuesday after the first Monday in November. Americans vote in November because that is the time when the harvest would have been completed, but winter weather wouldn’t be too disruptive. Americans vote on Tuesday, to give time for our forefathers to go to church on Sunday, travel to the polling location on Monday, and vote before Wednesday, which was the day when many farmers marketed their produce. Originally the exact day in November was up to the states, but with the invention of the telegraph in 1843, which allowed everyone to know simultaneously what voters in other states were doing, Congress decided to mandate a uniform date to choose electors. States still decided when the polls opened and shut, and so Virginia, still apparently worried about the farmers, opens the polls at 6:00 AM and closes them at 7:00 PM.
Voting in other countries most typically takes place on Sunday. Voting on Sunday makes it easier for people to get to the polls. Thus, it is not surprising that the United States is has the 36th lowest percentage of voters (as a share of voting age population) among 42 mostly European and Asian countries. It should be noted that in states where voting by mail is normal, voter participation is equal to or greater than that of Europeans.
Expanding the Franchise. There have been seven major expansions to the right to vote in America:
- From 1824 to 1856 vote extended to all white men
- 1868: Citizenship is defined to include former slaves; voting laws are still the province of the states
- 1870: 15th Amendment passed. It states that the right to vote cannot be denied by the federal or state governments based on race. However, soon after, some states begin to enact measures such as voting taxes and literacy tests that restrict the actual ability of African Americans to register to vote. Violence and other intimidation tactics are also used.
- 1887: Dawes Act gives citizenship to those native Americans who give up their tribal affiliations.
- 1920: the 19th Amendment is ratified expanding the franchise to women.
- 1961: 23rd Amendment ratified allowing citizens of Washington D.C. to vote for President.
- 1964: The Voting Act is passed as is the 24th Amendment, outlawing various mechanism the states have used to keep African-Americans from voting.
- 1971: The 26th Amendment extends franchise to anyone over the age of eighteen.
Voter Suppression. America has a long and dishonorable tradition of trying to limit the franchise, particularly of minority voters. As a result, in 1965, Congress passed the Voting Rights Act, which did away with some of the worst elements of voter suppression in the Southern states. The Act banned the use of literacy tests, provided for federal oversight of voter registration in areas where less than 50 percent of the non-white population had not registered to vote, and authorized the U.S. attorney general to investigate the use of poll taxes in state and local elections.
In 1964, the 24th Amendment made poll taxes illegal in federal elections; poll taxes in state elections were banned in 1966 by the U.S. Supreme Court.
But forty-seven years later, on June 25, 2013, the Supreme Court of the United States, by a 5-4 decision, agreed with lawyers for Shelby County, Alabama, and ruled that the formula the Voting Rights Act used to determine which jurisdictions needed preclearance was unconstitutional. (the 1965 Voting Rights Act contained a provision that required certain jurisdictions with a history of voter discrimination to get preclearance from the U.S. Attorney General or from the U.S. District Court in D.C. before they made any changes to their voting procedures).
The 1965 coverage formula included the whole of Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia; and some subdivisions (mostly counties) in Arizona, Hawaii, Idaho, and North Carolina. This formula was amended in 1968. At first the provisions only held for five years, but Congress kept on amending the bill and in 2006 extended the preclearance provision for another 25 years. However, the decision in Shelby County v. Holder gutted the preclearance provisions robbing Congress of its legislative powers. The result was predictable. A study by Desmond Ang found that the impact of the preclearance provisions of the Voting Rights Act were large and persistent. He estimated the increase in voting because of the law was between 4% and 8%, was entirely driven by increased participation of minorities. and has lasted forty years.
Moreover, Shelby v. Holder was only the first step. Vann R, Newkirk II argues “that the Shelby County v. Holder decision committed violence against the Fourteenth Amendment itself, of which the Voting Rights Act is a distant descendant.” He goes on to say, “The results have been predictable. Voter-identification laws, which experts suggest will make voting harder especially for poor people, people of color, and elderly people, have advanced in several states, and some voting laws that make it easier to register and cast ballots have been destroyed. For many of the jurisdictions formerly under preclearance, voting became rapidly more difficult after the Shelby County decision, particularly for poor and elderly black people and Latinos.”
Jeremy Duda cites the example of Texas. “Texas sprang into action virtually the moment the Supreme Court announced its decision, announcing that a photo ID law that had been blocked by a federal court would now go into effect. Texas’s law prohibited forms of photo identification that minority voters were disproportionately likely to use, such as student IDs and state employee IDs, Hebert said. But it did allow forms of identification disproportionately used by white people. For example, 91 percent of the people who have licenses to carry firearms in Texas were white. Texas’s law permitted the use of those IDs to vote, even though they were available to noncitizens, undermining GOP lawmakers’ rationale that the photo ID law was intended to prevent undocumented immigrants from voting.”
Is Voting a Right? Although the “right to vote” is mentioned more often in the U.S. Constitution than any other right, some scholars hold that “the right to vote” is not equal to, for example, the “right to assemble.” Garrett Epps, writing in The Atlantic, notes that “Scholars and courts often note that the Constitution nowhere says, ‘All individuals have the right to vote.’ It simply rules out specific limitations on ‘the right to vote.’ A right not guaranteed in affirmative terms isn’t really a “right” in a fundamental sense, this reading suggests.” However, as he goes on to say, “Linguistically, our Constitution is more in the rights-preserving than in the right-proclaiming business. The First Amendment doesn’t say ‘every person has the right to free speech and free exercise of religion.’ In the Second, the right to ‘keep and bear arms’ isn’t defined, but rather shall not be ‘abridged.’ In the Fourth, ‘[t]he right of the people to be secure … against unreasonable searches and seizures’ isn’t defined, but instead ‘shall not be violated.’ In the Seventh, ‘the right of (civil) trial by jury shall be preserved.’ And so on.”
Why, then, if voting is a right, are there so many attempts to limit it? And why do the Courts find these limitations constitutional? The answer seems to be that courts rule in favor of election security rather than voter rights.
Fivethirtyeight presented a long list of court cases and other election news on October 24. The central point is this: Republican officials and organizations are trying to suppress voting across the nation, generally on the basis of election security. For example, an “election-related order came down from the Supreme Court on October 21. By a 5-3 vote, with conservatives in the majority and liberals dissenting, the court blocked a district court judge’s ruling that kept Alabama state officials from preventing counties in the state from providing curbside voting, a measure designed specifically to help voters with disabilities or those at risk of catching COVID-19 who were uncomfortable waiting with other voters in an indoor space.” Interestingly, this practice was permitted in 2016 and 2018. The only thing that’s changed since then is that we are facing a deadly pandemic.
Take Back the Court, a group committed to enlarging the Supreme Court, found that 79% of Republican-appointed judges and 37% of Democratic-appointed judges voted against litigants seeking freedom to vote, ballot access, or lowered signature requirements.
What’s the public interest here? Abridging the “right to vote?” Increasing the contact between voters with disabilities and other voters who may be infectious with Covid-19? What’s the rationale for limiting the franchise? Most of the rationales have to do with the bogus claim that the vote needs to be secured. Texas Governor Greg Abbot in defending the absurd idea of one drop box per county said, “The State of Texas has a duty to voters to maintain the integrity of our elections. As we work to preserve Texans’ ability to vote during the COVID-19 pandemic, we must take extra care to strengthen ballot security protocols throughout the state. These enhanced security protocols will ensure greater transparency and will help stop attempts at illegal voting.” The majority in the Supreme Court’s decision to allow Alabama to limit curbside voting offered no opinion.
This is no longer unusual. Adam Liptak, writing in the New York Times, says, “At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas, and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida. Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning.”
According to Time Magazine, “after the prolonged litigation battle, Alabama voters who are disabled, elderly or have underlying conditions were back where they started: deciding whether to put their health at risk to fulfill the witness and ID requirements or vote in person—or not vote at all.”
But even without resorting to the courts some states have acted to restrict voting through administrative action. Take, for example, the number of polling places. Vice News estimates that states have reduced polling places by 21,000 for the 2020 election. This is happening in both red states and blue, for good reasons and bad. The good reasons include the expected increase in mail-in ballots and the difficulties in getting poll watchers during the epidemic. The map below shows this reduction by state.
Is not the right to vote the bedrock “right” of a democracy? Would a true democracy permit numerous hindrances to voting? I return to what I wrote when I opened this post: “For many years American students have been served a large portion of codswallop in their history and government classes.” The United States of America is many things, but a democracy is not one of them.