Voter Suppression Part 1: The Background

The question of voter suppression has roiled our politics for the last year. Just like many other wedge issues (see gun control and abortion), the two sides have different names for the issue. Your “election security” is my “voter suppression.” So, what is going on?

Here are the main takeaways for Part 1:

• The “founding fathers” were skeptical of true democracy and limited the franchise to those men who owned property, in other words, to the upper class.
• Over the 225 years since the Constitution was ratified the franchise expanded: first to all white males, then to black males and to native Americans and then to women.
• There is no constitutional right to vote enumerated in the Constitution; thus, the Supreme Court has tended to uphold stricter voting rules as long as they are not clearly racially discriminatory.

Is There a constitutional “Right to Vote?” 

The Constitution is silent about the “right to vote.” As The Conversation observed in August, 2020, “The Bill of Rights recognizes the core rights of citizens in a democracy, including freedom of religion, speech, press and assembly. It then recognizes several insurance policies against an abusive government that would attempt to limit these liberties: [the right to bear] weapons; the privacy of houses and personal information; protections against false criminal prosecution or repressive civil trials; and limits on excessive punishments by the government.  But the framers of the Constitution never mentioned a right to vote.”

This is a feature of the constitution, not a bug. The “founding fathers” were no fans of popular democracy, so they designed a government that was particularly strong in protecting minority rights and freedoms but was mostly silent on the rights of the majority.  The article cited above goes on to say, “They were creating a radical experiment in self-government paired with the protection of individual rights that are often resented by the majority. As a result, they did not lay out an inherent right to vote because they feared rule by the masses would mean the destruction of – not better protection for – all the other rights the Constitution and Bill of Rights uphold. Instead, they highlighted other core rights over the vote, creating a tension that remains today.”

Louis Renè Beres, writing in USNews, says, “On these matters, the written record is unambiguous. For Edmund Randolph, [ex-Governor of Virginia and author of the “Virginia Plan],” the evils from which the new country was suffering originated in the “turbulence and follies of democracy.” Quite regularly, Elbridge Gerry [Massachusetts delegate to the Constitutional Convention] spoke of democracy as “the worst of all political evils,” and Roger Sherman [Connecticut delegate to the 1787 Convention and author of the “Connecticut Compromise”] hoped that “the people…have as little to do as may be about the government.” Hamilton  charged that the “turbulent and changing” masses “seldom judge or determine right,” and very fervently sought a suitably “permanent” authority to “check the imprudence of democracy.”

How does the Supreme Court feel about reducing the franchise and what does race have to do with it?  The Roberts Court has decided two critical voting rights cases:

1. Shelby v. Holder. In 2013, in a major decision, the Supreme Court voided one section of the Voting Rights Act of 1965, which, inter alia, prohibits eligible districts from enacting changes to their election laws and procedures without gaining official authorization. Section 4(b) defines the eligible districts as ones that had a voting test in place as of November 1, 1964, and less than 50% turnout for the 1964 presidential election.  The Court, in the opinion of a 5-4 majority (split along conservative-liberal lines), held that Section 4 of the Voting Rights Act is unconstitutional. The opinion held, that as a matter of fact, the conditions when the bill was passed in 1965 were no longer extant in 2013, and thus, the restrictions placed on the states by the Voting Rights Act were outdated and posed an undue burden on the states.
2. Brnovich v. Democratic National Committee. In 2020, the Supreme Court considered a challenge to Arizona’s new election laws which 1) voided any ballot cast in the wrong precinct and 2) made it a crime for any person other than a postal worker, an elections official, or a voter’s caregiver, family member, or household member to knowingly collect an early ballot—either before or after it has been completed. What is critical here is the allegation by the DNC that both the State’s refusal to count ballots cast in the wrong precinct and its ballot-collection restriction had an adverse and disparate effect on the State’s American Indian, Hispanic, and African American citizens in violation of §2 of the VRA. Additionally, they alleged that the ballot-collection restriction was “enacted with discriminatory intent” and thus violated both §2 of the VRA and the Fifteenth Amendment.  Derek Muller, writing for Scotusblog said, “The court rejected the challenge to Arizona’s laws. The two rules affected a tiny fraction of voters, and there was little disparity between how minority and non-minority voters behaved. The rules were well within the “usual burdens of voting,” especially given ample opportunities to vote.”

What follows from these decisions are two major points:

1. Muller goes on to say “Every voting rule, the court explained, places some burden on voters. Voting inevitably takes time and travel, even when going to the mailbox. And the court embraced the argument that “mere inconvenience” alone will not be sufficient to win under the Voting Rights Act. An open process that has the “usual burdens of voting” will typically not violate Section 2.”
2. The constitutionality of restrictions on voting depends on whether or not these restrictions are discriminatory. When you pare away all the extraneous verbiage, both cases depend on whether or not protected groups are discriminated against or not.  In other words, laws that restrict the ability of all voters to vote are constitutional. Essentially the Court has decided that there is no inherent constitutional “right to vote.”

The chart below details the impact of the 1965 Voting Rights Act on voter registration on selected Southern states.  As can be seen, in general, both white and black registration increased after the bill was passed, the impact on many black voters in the South was enormous (an increase from 7% to 60% in Mississippi and from 20% to 48% in Alabama).

It is important to note, as SCOTUS has in these two cases, that the burden of voting has decreased substantially, even before last year’s pandemic. Take the Arizona laws that SCOTUS considered in Brnovich v. DNC.  Arizona’s election laws permit online voter registration, early voting, and no-excuse absentee voting.  Arizona requires voters to present non-photo identification at the polls (including, for example, bank statements, utility bills and the like).  In contrast, while New York permits on-line registration and early voting, it does not allow no-excuse absentee voting.

The history of expanding the franchise.

First, as we’ve noted before, the right to vote has been among the most ill-defined of all the rights enumerated in the United States Constitution.  According to Jill Lepore, perhaps 6% of the entire American population was eligible to vote in the first presidential election.  Excluded were those younger than 21, all women, all slaves and other blacks and a large number of white men who didn’t have sufficient property, although Donald Ratcliff argues that many more white men were able to vote than is often asserted.

Nevertheless, the franchise was quite limited, and it took the better part of two centuries to expand it to all adults over the age of 18. The following table shows how the franchise has slowly expanded since 1789. Between the 1778 ratification of the constitution and the election of 1824 the franchise was limited to white men with property.  Although property restrictions on voting were already gradually being eliminated in both original states and new states such as Vermont, Kentucky, and Tennessee, it was the election of Andrew Jackson which saw the expansion of the franchise to all white males as a political philosophy to be articulated and promoted.

The chart below shows what has happened to actual voting as a percentage of total population.  Note the surge in 1828 (extension of suffrage to non-property-owning white men), the drop from 1890 to 1910 (when Southern states disenfranchised most African Americans and many poor whites), and another surge in 1920 (extension of suffrage to women).

The next post will look at the current political and judicial debate over voting rights.