US Voting Rights

Introduction to US Voting Rights

The right to vote has been a contentious issue in the US since the inception of the country. There was no specific right to vote or qualifications to vote drafted into the US Constitution. Each state was left to develop individual standards on how to run their voting and election processes. During the early years of the US, the right to vote was traditionally limited to white men who owned property, with a few states permitting freed African-Americans to vote. Prerequisites used to determine who was permitted to vote in the states included characteristics such as race, sex, property ownership and wealth. Religious requirements were also widely used to determine voting and office-holding eligibility: early versions of the constitution of South Carolina only allowed Protestants to vote, Delaware required every elected official to affirm belief in both the Old and New Testaments of the Christian Bible and the state of Maryland did not extend voting rights to Jewish individuals until 1828.

In 1790, the Naturalization Act was passed, which restricted those who were eligible for naturalized citizenship to free, white immigrants. Functionally, this meant that voting in nearly all US states remained limited to those free white males who were citizens. Several states allowed women to vote temporarily, such as New York, Massachusetts, New Hampshire and New Jersey. By 1807, however, even those states had repealed their formerly permissive laws.

The Nineteenth Century

The nineteenth century was a time of great upheaval in the arena of voting rights. It began with voting limited to only free white males, and ended with several states beginning to relax their restrictions. The development of these new voting regimes dovetailed with the fight for citizenship pursued by immigrants, Native Americans and women.

In 1848, as a reaction to the lack of citizenship rights for women, a women's rights convention was held in Seneca Falls, NY, where speakers — including Frederick Douglass, Elizabeth Stanton and Lucretia Mott — called for universal suffrage. The groups from this convention eventually split to pursue separate avenues of citizenship rights, specifically focusing on women and African-Americans. The same year as the convention, the Mexican-American War ended, and US citizenship was granted to all Mexicans living in territories conquered by the US. While this was a significant step toward more individuals obtaining the right to vote, many states instituted even more prerequisites in response to the annexation, such as English-language requirements.

The dispersion of voting rights took a small step forward in 1856, when North Carolina became the final US state to remove property ownership as a prerequisite voting requirement. By that time, the right to vote had extended to include virtually all white men. Following the end of the US Civil War, the Fourteenth Amendment was passed granting citizenship to all former slaves. However, citizenship remained restricted to males and women were, again, classified as non-citizens. Although this was one of the first major expansions in American voter rights, many voting-based regulations remained in the hands of the individual states.

African-Americans were not the only ethnic groups struggling with the relationship between citizen and voter in nineteenth century America. In 1876, the US Supreme Court ruled in US v. Cruikshank that Native Americans were not citizens, and in 1882 the Chinese Exclusion Act barred those of Chinese heritage from becoming citizens, and, consequently, from voting.

As a response to the Cruikshank decision, the Dawes Act was passed in 1887. The legislation created a path to citizenship for Native Americans, although it required them to renounce their tribal affiliations. Women were also making inroads during the late 1800's. Finally, in 1890, some states began to grant women the right to vote as Wyoming became the first state in the "modern era" to enshrine women's suffrage in its state constitution. The states of Utah, Colorado, Idaho, Washington and California quickly followed suit.

The Twentieth Century

The 1900's were arguably the most significant century in terms of steps taken to expand those included in the body of voters across the US, in both state and federal elections. In 1919, any Native American who had served in the military during World War I was granted citizenship. The Nineteenth Amendment to the US Constitution, which guaranteed women the right to vote in both state and federal elections, was ratified the following year. And the Native American population gained additional ground in 1924 with the passage of the Indian Citizenship Act. Although they could thereafter become citizens, Native Americans were still the targets of voter discrimination through various state policies and voting requirements.

During this same time period in many southern states, only white voters were permitted to participate in Democratic primaries. These so-called "all-white" primary elections were used to maintain control of state governments during an era when the Democrat who won his party's nomination inevitably carried the general election. In 1944, the US Supreme Court ruled in Smith v. Allwright that "all-white" primary elections were unconstitutional. Up through the 1960's, however, several states continued to use both poll taxes and literacy tests to keep certain groups from influencing elections throughout the country. In 1964, the Twenty-Fourth Amendment banned the use of poll taxes in federal elections, but it was not until 1966 that the Supreme Court ruled in Harper v. Virginia Board of Elections that poll taxes in state elections also violated the Fourteenth Amendment's Equal Protection Clause. This constituted the removal of a significant barrier to voting in the United States. Another major step came in 1965 with the passage of the Voting Rights Act (VRA), which is discussed in depth below.

The late 1900s brought young voters back into the picture around the time of the Vietnam War with the ratification of the Twenty-Sixth Amendment, which lowered the voting age in the US to 18 years old — the minimum age for being drafted into the military. Finally, another significant barrier was removed in 1975 when an amendment to the VRA was passed requiring certain voting materials such as notices, forms and instructions to be provided in languages other than English.

The Twenty-First Century

State voting laws have continued to be at issue for the past decade as political battlegrounds form in states where laws may significantly shape voter turnout. Another group that has been fighting disenfranchisement is convicted felons. In 2001, the National Commission on Federal Election Reform encouraged states to allow felons to regain their right to vote once their sentence is completed. Several states prohibit all those convicted of felony crimes from voting in the state for an indefinite period of time.

Other legal challenges, particularly in the run-up to the 2012 presidential election, have centered around early voting. In particular, the Attorney General of Ohio appealed a US Court of Appeals for the Sixth Circuit decision that state election officials could not abolish an early voting procedure that had been in place since 2004 because it would disenfranchise those unable to vote on Election Day. The US Supreme Court subsequently denied Ohio election officials' stay application. Conversely, the US District Court for the Middle District of Florida issued a ruling that Florida does not have to provide 96 hours of early voting access.

The Voting Rights Act

The Fifteenth Amendment to the US Constitution guarantees that "[t]he 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." Ratified in 1870 as one of the so-called "Reconstruction Amendments," it aimed to alleviate the systemic suppression of African-American voters in the aftermath of the US Civil War. While the amendment and many other pieces of federal and state legislation initially succeeded at protecting the suffrage of African-American voters during Reconstruction, US President Rutherford B. Hayes' order to withdraw federal troops from the South in 1877 hampered enforcement. Following the return of "home rule" in the South, many of the southern states passed Jim Crow laws that sought to disenfranchise African-American voters through the use of literacy tests and poll taxes. Widespread voter intimidation was also prevalent.

The growing fervor of the civil rights movement during the 1960s underscored the deficiencies of existing federal anti-discrimination provisions. Following violent civil rights protests in the US during the spring and summer of 1965, particularly in Selma, Alabama, US President Lyndon B. Johnson called on Congress to adopt meaningful voting rights legislation in a landmark address before a joint session of the US Congress on March 15, 1965. Two days later, President Johnson introduced legislation which would eventually become the VRA after its swift passage in both houses of Congress. President Johnson signed the bill into law on August 6, 1965, approximately 95 years after the ratification of the Nineteenth Amendment.

The VRA has many provisions, but emphasis is typically placed on Sections 2 and 5.

Section 2

VRA's Section 2, which comports closely with the language of the Fifteenth Amendment, created a nationwide prohibition on the use of discrimination to deny individuals the right to vote. Section 2 is a permanent provision and does not require periodic congressional approval. It was further amended in 1982 to prohibit any voting procedure that had a discriminatory result, including the perennial redrawing of voting district lines. However, the US Supreme Court ruled in Bartlett v. Strickland that the VRA does not require voting district lines to be drawn favorably towards minority candidates if the minority in question represents less than 50 percent of the population in that district.

Section 5

Section 5 of the VRA, which creates a scheme of federal anti-discrimination enforcement that is typically referred to as "preclearance," is the more controversial and substantial section. The section requires that the US Department of Justice (DOJ) "preclear" all attempts to change "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" in any jurisdiction which is considered "covered." Although all jurisdictions which had fewer than 50 percent of the eligible population voting were considered "covered" under the original law, jurisdictions (including cities and counties) which had a history of discrimination or were found to be in violation of Section 2 were also included. Jurisdictions seeking preclearance have the burden of proof to establish that proposed changes to election guidelines have neither the purpose nor effect of discriminating based on race or a person's status as the member of a "language minority group," including "persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." The preclearance enforcement scheme was upheld by the US Supreme Court in their 1966 decision, South Carolina v. Katzenbach.

Entire states currently considered "covered" under the VRA include: Alabama, Alaska, Arizona, Louisiana, Mississippi, South Carolina and Texas. Additionally, certain cities, counties and townships in California, Florida, Georgia, Michigan, New Hampshire, New York, North Carolina, South Dakota and Virginia are also considered "covered." The VRA also includes a provision whereby covered jurisdictions may "bail out" of Section 5 by seeking a declaratory judgment from the US District Court for the District of Columbia. The 1982 amendments to the VRA established that jurisdictions must demonstrate nondiscriminatory behavior in the decade prior to the filing with the district court and that, while the action is pending, the jurisdiction has taken affirmative steps to improve minority voting opportunities. Individual cities and jurisdictions may "bail out" separate from their home state; currently only 14 counties in Virginia and the cities of Kings Mountain, North Carolina and Sandy Springs, Georgia have successfully "bailed out" of Section 5.

Contemporary Issues

The VRA was renewed with near legislative unanimity on July 26, 2006, despite attempts by southern Republican lawmakers to amend or repeal the Act based on concerns over excessive federal oversight. More recently, Section 5 of the VRA has been the source of renewed controversy, as lawsuits in jurisdictions including Texas, Alaska and South Carolina have sought to invalidate the preclearance enforcement scheme. On February 27, 2013, the US Supreme Court held oral arguments in the case of Shelby County v. Holder, questioning whether Congress exceeded its constitutional authority by renewing Section 5 of the VRA. Justice Antonin Scalia was particularly vocal in questioning whether political popularity of the provision rather than constitutional protection of vulnerable populations motivated continued reauthorization of Section 5.

On June 25, 2013, the Supreme Court issued an opinion [PDF] striking down Section 4 of the VRA, which defined the formula for which jurisdictions are covered under Section 5. The Court upheld Section 5 and said Congress could constitutionally enact a new formula.

Voter ID Laws

Today, there are 32 states in the US that require voters to present identification at the polls in order to vote, including 17 states that have passed laws requiring a photo ID.

Voter ID laws have become increasingly controversial as the 2012 presidential election approaches, precipitating legal challenges in several states. In September 2012, the Pennsylvania Supreme Court heard oral arguments to determine the constitutionality of Pennsylvania's voter ID law. The Pennsylvania law requires all voters to present a state or federal government-issued photo ID when they vote. Those who do not have a valid photo ID can cast a provisional ballot, which will be counted provided that they furnish a valid photo ID within six days.

The American Civil Liberties Union (ACLU) challenged the lower court's ruling allowing the law to stand. The ACLU, along with 10 citizen plaintiffs, brought the case against Pennsylvania Governor Tom Corbett, who signed the voter ID bill into law in March 2012. On October 2, 2012, the Pennsylvania Commonwealth Court issued a preliminary injunction preventing the law from taking effect for the 2012 presidential election. Although the injunction was to remain in effect only through November 2012, and the Pennsylvania Supreme Court later vacated the decision, thus upholding the voter identification law. In February 2013, lawyers for the ACLU convinced state officials to suspend enforcement of the voter identification law until after the 2013 primary elections.

This controversy has not been isolated to Pennsylvania during the last year.

In August 2012, a three-judge panel in the US District Court for the District of Columbia unanimously rejected a similar Texas law requiring voters to present photo ID to election officials before casting their ballots. In striking down the law as unconstitutional, the judges concluded that the law is "the most stringent [of the photo ID laws] in the country" and would "almost certainly have a retrogressive effect," namely "strict, unforgiving burdens on the poor." The Texas judges found that the retrogressive effect within this law necessarily invalidated it under Section 5 of the VRA.

The Center for American Progress (CAP) released a report in April 2012 criticizing the tide of recently-passed state voter ID laws as an attempt by conservatives and lobbyists to "return to past practices of voter suppression to preserve their political power." The report details new restrictions on registration in six states and laws in nine states that require voters to show a government-issued photo ID, concluding that these measures are motivated by a desire to prevent the more than 21 million voters who do not have these IDs from participating in elections.

Prior to that, in March 2012, a Wisconsin judge ruled the state's voter ID law requiring a voter to display photo ID when entering a polling place unconstitutional. The court issued a temporary injunction barring the law from taking effect, and the Wisconsin Supreme Court refused to consider appeals, leaving the matter to the Wisconsin Court of Appeal, which found the law unconstitutional in May 2013.

The ACLU, the ACLU of Wisconsin and the National Law Center on Homelessness & Poverty National Law Center on Homelessness & Poverty also filed a federal lawsuit seeking to invalidate the Wisconsin law, as did the Advancement Project in February 2012.

In February 2012, South Carolina Attorney General Alan Wilson filed suit against the DOJ over its ruling that barred South Carolina from enforcing its voter ID law. The South Carolina law, nominally enacted to prevent voter fraud, would have required residents to present a current government-issued ID to cast a ballot. However, Assistant US Attorney General Thomas Perez stated that the voter ID requirement resulted in significant racial disparities and that South Carolina had not met its burden to show that these disparities would not have a discriminatory effect. The US District Court for the District of Columbia allowed the law to take effect starting in 2013.

In August 2011, the South Carolina Senate Minority Caucus filed an objection with the DOJ, asking for rejection of the new voter ID law. They argued that the new law is too restrictive because it requires voters to have both a valid and current identification, which would exclude persons whose licenses are revoked or suspended. This objection followed a previous attempt by several South Carolina civil rights groups, including the ACLU and the League of Women Voters of South Carolina, who argued in their letter to the DOJ that the new voter ID law would have a discriminatory effect. A three-judge panel of the US District Court for the District of Columbia, after finding that the South Carolina voter ID law does not discriminate against racial minorities, ruled [PDF] that the law would be allowed to go into effect in 2013. In November 2011, Mississippi voters approved a ballot measure to implement a voter ID law.

Debate over these laws has sparked controversy leading up to presidential and congressional elections in November 2012 and beyond, with mixed results. The Georgia courts upheld a voter ID law requiring voters to present one of six possible forms of identification in March 2011 and Virginia Governor Bob McDonnell signed a similar bill into law in May 2012. The Virginia General Assembly took further action in February 2013 when it passed two bills, S.B. 719 and H.B. 1337, which further limited acceptable forms of identification at the polls. On March 25, 2013, Virginia's governor signed the bills into law.

On March 19, 2013, the Arkansas legislature approved a bill that required voters to show identification prior to voting. The new law would allow any registered voters to obtain photo identification at no cost if they did not have alternative identification. Arkansas Governor Mike Beebe vetoed this bill six days later, saying that it would create unnecessary costs and bureaucracy and potentially disenfranchise voters. The contention between the governor and the legislature in Arkansas ended on April 1, 2013, when the Arkansas House of Representatives joined the Arkansas Senate in overriding the governor's veto and instituting the new law. The law is set to go into effect January 1, 2014.

Similar legislative provisions have either been vetoed by executive authorities, Circuit overturned by federal appellate courts or preemptively challenged by civil rights groups.

In the midst of this legal turmoil, the Brennan Center for Justice released a report in July 2012 detailing the burden on Americans who need to obtain government-issued photo ID in order to comply with restrictive state voter ID laws. This report, "The Challenge of Obtaining Voter Identification," was the first comprehensive assessment of the difficulties that eligible voters face in obtaining free photo ID in order to vote.

According to the report, the 11 percent of eligible voters who lack the required photo ID must travel to a designated government office to obtain one, and vote restrictive states are legally required to provide a photo ID free of charge. However, in those states, more than 10 million eligible voters live more than 10 miles from their nearest ID-issuing office that is open more than two days a week. Of those 10 million eligible voters, more than one million fall below the federal poverty line and almost 500,000 of those eligible voters do not have access to a vehicle. In addition, the report documented the idiosyncratic hours of certain ID-issuing offices, making it difficult for eligible voters to obtain a state ID. Ten states — Alabama, Georgia, Indiana, Kansas, Mississippi, Pennsylvania, South Carolina, Tennessee, Texas and Wisconsin — now carry the most restrictive "no photo, no vote" type of voter ID law. In order for their laws to take effect, Mississippi, South Carolina and Texas must receive VRA Section 5 preclearance from the DOJ.

Voter ID laws, like the ones discussed above, are not recent phenomena. In May 2005, the National Conference of State Legislatures — a body which tracks state law developments — found that 26 states had considered new proposals for voting laws. The most important issue under review in many states was proof of identity for valid voters. This issue raised two general competing viewpoints: that more restrictions and regulations were needed to counter fraud and another that the voting process should be easier and opened up to more people.

In April 2008, the US Supreme Court upheld an Indiana voter identification statute requiring voters to present photo identification as a prerequisite to voting. The court concluded that, despite arguments that the legislation makes it difficult for minorities, the elderly and the impoverished to participate in elections, the law does not put an undue burden on the right to vote and therefore does not violate the US Constitution.

Prior to that, in August 2007, a federal judge upheld Arizona's voter ID law — Proposition 200 — requiring voters to provide photo identification before voting. The ruling followed an October 2006 US Supreme Court decision that allowed Arizona to enforce the identification law during the 2006 midterm elections. On March 18, 2013, the US Supreme Court heard oral arguments to consider the legality of Proposition 200's requirement that voters show "proof of citizenship" in addition to photo ID. In June 2013, the Court struck down the proof of citizenship requirement as preempted [PDF] by federal law.

In July 2006, Georgia's earlier attempt to implement photo identification cards for voters was challenged by the ACLU and other voting rights advocates, who filed a motion in federal district court seeking a preliminary injunction, arguing that the bill authorizing the cards violates the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964, and that it constituted a poll tax in violation of the Twenty-Fourth Amendment. Unlike the original law, SB 84 would have provided free voter ID cards. However, the statute was challenged for imposing burdens on Georgia citizens without increasing protections against voter fraud. The motion read, in part:

The 2006 Act imposes a severe burden on the poor, the elderly, the infirm, and the less literate who either cannot afford a car, or are no longer able to drive, and who are, therefore, the least mobile of our citizens and least able to make a special trip to the county registrar's office to obtain a "Georgia identification card" or to navigate the requirements of voting absentee.
In April 2006, the DOJ approved the new Georgia law, as required by the VRA, certifying that the DOJ does not find that the law has a racially discriminatory purpose or that minority voters would be worse off.

Related legal action concerning voter fraud has been taken in Florida, where a judge for the US District Court for the Southern District of Florida ruled [PDF] that the state may continue purging its voter rolls of suspected non-citizens, despite opponents' outcry and invocation of the VRA.


Timeline

6/27/2013: Supreme Court issued final orders of term

6/25/2013: Supreme Court struck down part of Voting Rights Act

6/17/2013: Supreme Court struck down Arizona voter proof of citizenship requirement

5/30/2013: Wisconsin appeals court ruled voter ID law was constitutional

5/3/2013: Florida legislature passed bill to extend early voting

4/1/2013: Arkansas legislature overrode governor's veto of voter ID bill

3/25/2013: Arkansas governor vetoed voter ID legislation

 ...[more]

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