Most Americans probably believe the “right to vote” is one of their most fundamental constitutional rights. It will come as a surprise, therefore, to learn that neither the original Constitution nor the Bill of Rights nor any other provision of the Constitution expressly guarantees the right to vote. Only in the 1960s, when the Supreme Court began to conclude that the Fourteenth Amendment implicitly protected the right to vote, did American constitutional doctrine begin to treat the right to vote as a fundamental constitutional right. Once the Court recognized the right to vote, decisions of the Supreme Court helped revolutionize the way voting was treated under American constitutional law. Most of the law concerning “the right to vote” developed under the Fourteenth Amendment, though important Court decisions also have relied at times on the Fifteenth Amendment.
The reason the original Constitution and the Bill of Rights do not expressly protect the right to vote is that doing so would have been too controversial and divisive at the time. Different states had different rules for who could vote (many states had property-holding requirements and differed on the amount; some states permitted women and free black men to vote, others did not). To create a uniform standard across the country would have required resolving these major differences. The only place where voting is directly recognized in the original Constitution is for choosing members of the House of Representatives; Article I, Section 2 provides that the people eligible to vote for members of the U.S. House will be determined by whom the States let vote for their own house of representatives. Since the Civil War, many constitutional amendments address voting issues, but these amendments are written to prohibit certain bases for denying the vote to some people once the vote is extended to others: the Fifteenth Amendment prohibits racial discrimination in the vote; the Nineteenth Amendment prohibits discrimination based on sex; the Twenty-Fourth Amendment prohibits the use of poll taxes in national elections; and the Twenty-Sixth Amendment prohibits denying the vote to those over 18 years of age.
But in terms of constitutional decisions of the Supreme Court, the two most important provisions with respect to the vote have been the Fourteenth and, to a lesser extent, the Fifteenth Amendments. Although the Fourteenth Amendment was not designed to protect the right to vote and does not expressly mention it, two lines of Supreme Court decisions have provided important protections since the 1960s. In the first line of cases, the Supreme Court created the “one-vote, one-person” doctrine, which requires that there must be fairly equal numbers of people in election districts when electing representatives to a political body—for example, all the congressional districts in a state must have the same number of people. Before the decisions in Baker v. Carr (1962), Reynolds v. Sims (1964), and similar cases, some districts in a state might have had 900,000 people, others only 100,000 people, but voters in each district would elect one representative to Congress. The Court concluded that the Fourteenth Amendment reflected principles of political equality that required each district have, to the extent possible, an equal number of residents, which is what one-vote, one-person means.
The second area of important decisions involves the right to get to the ballot box and cast a vote. Again under the Fourteenth Amendment, the Supreme Court first began to recognize this right in the 1960s, in Harper v. Virginia Board of Elections (1966), Dunn v. Blumstein (1972) and many other cases, the Court decided that restrictions on who could vote would be subject to strict scrutiny, the most demanding judicial standard. Once this standard was announced, the Court quickly held unconstitutional virtually all restrictions on voting other than (1) citizenship; (2) residency in the jurisdiction; and (3) age under 18. To evaluate other regulations on the voting process, the Court in later cases, such as Burdick v. Takushi (1992) has created a two-part test that first requires courts to decide if a burden on the right to vote is “severe” or not. If it is, the regulation can survive only under strict scrutiny, which most regulations fail. But if the burden is not severe, the regulation is much more likely to be upheld. Most current constitutional controversies about regulations of the voting process take place under this Burdick framework and require courts to decide, first, whether a regulation imposes a severe burden on the right to vote.
Added to the Constitution in 1870, the Fifteenth Amendment was the final of the three constitutional amendments enacted during Reconstruction in the aftermath of the Civil War. While the Thirteenth Amendment prohibited slavery, and the Fourteenth Amendment barred states from denying “equal protection of the laws,” the Fifteenth Amendment established that the right to vote could not be denied on the basis of race. Though its express terms prohibit all racial discrimination in voting qualifications, the Amendment was aimed at ensuring the enfranchisement of African-Americans. Section 2 of this short but momentous Amendment also gave Congress the power to enact legislation to enforce the right against race-based denials of the vote. The constitutional meaning of the Civil War was reflected in these three amendments; when the Fifteenth Amendment was passed, it represented the principle that African-American citizens—many of them former slaves—were now entitled to political equality.
Yet the most significant fact about the Fifteenth Amendment in American history is that it was essentially ignored and circumvented for nearly a century. This history illustrates that constitutional rights can be little more than words on paper unless institutions exist with the power to make sure those rights are actually enforced. For the first twenty to thirty years after the Amendment was adopted, black adult men (women were generally not permitted to vote at this time) were indeed permitted to vote—and did so in large numbers. Nearly 2,000 African-Americans were elected to public offices during this period. But starting in 1890, Southern states adopted an array of laws that made it extremely difficult for African-Americans (and many poor whites) to vote. This was the start of what is known as the era of disenfranchisement, and it lasted all the way up until 1965. These laws required people to demonstrate literacy, or prove their good character, or pay certain voting taxes, or overcome other hurdles, before they were permitted to vote. As a result of these laws, African-American voting in the South was kept at extremely low levels from 1890 to 1965, despite the Fifteenth Amendment.
Early on in this process of disenfranchisement, the Supreme Court was asked to hold these laws unconstitutional. But in a 1903 case called Giles v. Harris (1903), the Supreme Court refused to do so; the Court stated that it did not have the power to force Southern states to comply with the Fifteenth Amendment. Later that year, in James v. Bowman (1903), the Court held that the Amendment did not authorize Congress to punish private individuals who interfered to prevent African-Americans from voting.
The Supreme Court did eventually invoke the Amendment to hold unconstitutional a few of the specific laws that sought to block African-Americans from effective political participation. In 1944, for example, the Court held unconstitutional rules that in some Southern states prohibited black citizens from voting in political primary elections. Smith v. Allwright (1944). In a well-known case, Gomillion v. Lightfoot (1960), the Supreme Court held that that City of Tuskegee, Alabama, had violated the Fifteenth Amendment when it re-drew the city’s boundaries from a square to an “uncouth twenty-eight sided figure” that put the residences of nearly all black people outside the city’s boundaries. Yet as of 1965, it was still the case that in Mississippi, for example, only 6.3% of African Americans were able to register to vote.
The situation only began to change dramatically in 1965, when Congress used its power to enforce the Fifteenth (and Fourteenth) Amendment by enacting the Voting Rights Act of 1965 (the VRA). The VRA provided a variety of means for the federal government and the federal courts to ensure that the right to vote was not denied on the basis of race.
In modern constitutional law, the Fifteenth Amendment plays a minor role. The reason is that other, broader sources of law have emerged to protect the right to vote. In the 1960s, the Supreme Court concluded that the Fourteenth Amendment protects the right to vote as a general matter, while the Fifteenth Amendment is more limited to protecting against only race-based denials of the right to vote. In addition, federal statutes, such as the VRA and others, now exist to protect the right to vote as well. When cases involving issues of race and the vote are brought today, they will typically be brought simultaneously under the Fifteenth and Fourteenth Amendments, as well as the VRA.
If a law explicitly imposes different rules by race for access to the ballot, there is little doubt the courts today would hold such a law to violate the Fifteenth Amendment. The one case like this in recent decades came from Hawaii, where a law permitted only Native Hawaiians, not all Hawaiians, to vote for certain officials. The Supreme Court concluded that a law limiting who could vote based on their ancestry was equivalent to a law that limited the vote based on race and that Hawaii’s law therefore violated the Fifteenth Amendment. Rice v. Cayetano (2000). But if a voting law does not impose different rules by race, and is challenged as nonetheless racially discriminatory, the Court has concluded that the challenger must show that the law is based on a racially-discriminatory purpose before the Fifteenth Amendment is violated. Mobile v. Bolden (1980).
Although the Fifteenth Amendment does not play a major, independent role in cases today, its most important role might be the power it gives Congress to enact national legislation that protects against race-based denials or abridgements of the right to vote.
While voting regulations based explicitly on race are clearly unconstitutional under the Fifteenth Amendment, the situation grows more complicated when a practice is not explicitly race-based but may nonetheless depress minority voting. The requirement that voters register in advance, for example, may dissuade some minority voters from registering, yet is almost universally accepted. The mere fact that an otherwise valid election regulation or practice inconveniences some voters does not create a constitutional violation. Current controversies in voting rights often revolve around this problem. Two examples are voter ID laws and the restoration of voting rights to felons.
In the last twenty years, numerous states have enacted laws requiring voters to present proof of identity and/or citizenship at the polls. States argue that these laws help prevent fraud and assure orderly elections. Critics argue that racial minorities, among other groups, are less likely to have such documentation than whites, and that the time and expense of obtaining such documentation constitutes a barrier to minority voting in violation of the Fifteenth Amendment and the Voting Rights Act (VRA).
If such laws can be shown to be racially motivated, they violate the Fifteenth Amendment. But racial motivation is hard to prove, either because the true motives are easily hidden, or because race simply is not a motivation for the law. Absent proof of motivation, do such laws violate the Fifteenth Amendment or the VRA? In Crawford v. Marion County Election Board (2008), the Supreme Court upheld Indiana’s voter ID law. The plaintiffs argued that evidence of fraud that could be combatted by the law was almost non-existent. The plaintiffs, however, failed to produce evidence showing that the law actually had a significant impact on persons who wished to vote. In short, neither side could answer the question: does the law prevent more illegal votes, or deter more otherwise eligible voters from voting?
In light of the lack of evidence on both sides, the Court’s ruling upholding the law appears correct. The Court’s decision left open the possibility that future plaintiffs who could prove discriminatory effect might again challenge the law—and that, too, appears correct.
Restrictions on the voting rights of convicted felons pose similar issues. As of 2015, forty-eight states have placed some limit on voting by convicted felons. In some states, voting rights are restored once the felon has finished a term of incarceration; in others, restrictions remain during parole and/or probation. In eleven states, however, voting rights may be permanently revoked. In recent years, for reasons beyond this discussion, high felony conviction rates have led African-American males to become over one-third of all persons prohibited from voting due to felony convictions. Do such laws therefore improperly burden minority voting rights? Or are restrictions on voting by convicted felons a legitimate public policy and form of punishment?
In Richardson v. Ramirez (1974), the Supreme Court held that disenfranchisement of felons was not a per se violation of the Fourteenth Amendment’s equal protection clause. But in Hunter v. Underwood (1985), the Court held that such a law would violate the Fourteenth Amendment if enacted with a racially discriminatory purpose. Neither case was decided under the Fifteenth Amendment. Constitutionality aside, the wisdom of permanent disenfranchisement may be questioned. Permanent disenfranchisement is a barrier to felons’ ability to successfully reintegrate into society. Moreover, it has become a sore point in much of the African-American community that may not be worth whatever deterrent or punishment effect it adds to a jail term.
This essay is part of a discussion about the Fifteenth Amendment with Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law. Read the full discussion here.
A more enduring conflict has been the use of the VRA to require states to establish “majority-minority” voting districts, in which minority voters comprise a clear majority of total voters. In Allen v. State Board of Elections (1969), the Supreme Court held that the VRA applies not only to laws that directly disenfranchise minorities, but to rules that “dilute” minority voting power by making it harder for a minority group to elect its preferred candidates. For example, if a county’s population is twenty-five percent African-American, and it elects three county commissioners from the county as a whole, and if voting is racially polarized, it is unlikely that any elected commissioner will be the choice of the African-American community. But if the county is divided into three districts, each electing one commissioner, it is possible to create one district with a majority African-American population that can elect that group’s preferred candidate.
The forced creation of majority-minority districts under the VRA undoubtedly helped assure African-American representation in numerous legislative bodies in the 1970s and 1980s. In recent decades, however, the practice has become increasingly controversial. Because African-Americans vote overwhelmingly Democratic, the creation of majority-minority districts effectively packs large numbers of Democratic, African-American voters into a relatively small number of districts—leaving surrounding districts both more white and more Republican. So while more minorities are elected, they are more likely to serve in legislative bodies controlled by the opposing party. Further, some argue that legislators from other districts, which have been “bleached” of their minority voters (who were “packed” into the majority-minority districts), have little incentive to concern themselves with the particular problems of minority communities. Thus, whether majority-minority districting augments or decreases minority political power is increasingly in dispute.
Others argue that the very process of considering race when drawing district boundaries violates the purpose of the Fourteenth and Fifteenth Amendments. Justice Clarence Thomas has described the creation of majority African-American districts as “segregating the races into political homelands that amounts, in truth, to nothing short of political apartheid.” Holder v. Hall (1994) (concurring in judgment).
In Georgia v. Ashcroft (2003), the Supreme Court relaxed the majority-minority districting requirement, holding that considerations of broader minority “influence” were relevant in deciding not to create majority-minority districts. However, this interpretation was overturned by Congress when it renewed the Voting Rights Act in 2006.
Support for majority-minority districting under the VRA depends on many factors, including the degree to which one believes that the United States remains a racially-polarized society, that the interests of whites and minorities are opposed, and that whites and minorities cannot form electoral coalitions. It is also influenced by perceptions of how legislative bodies operate, and whether a minority group’s power is maximized by the ability to elect a small number of its members, or to influence but not control the election of a larger number of legislators. Justice Thomas’s critique is a powerful claim that whatever short-term advantages minority groups may gain from majority-minority districts is more than offset by the long-term damage to race relations and democratic norms.
Current controversies over the right to vote can be divided into two types of claims. The first involves the ability to get to the ballot box and cast a vote: these are called first-generation voting rights claims, because they involve the basic right of being able to vote at all. The second involves the way election districts are designed, even once all eligible voters are properly able to vote; the way districts are designed can affect the distribution of political power between various groups in society, particularly the relationship between political majorities and minorities. These kind of claims, about the fair design of election districts, are called second-generation voting-rights claims.
First-Generation Right to Vote Issues.
The most dramatic issues in this area were fundamentally resolved during the Supreme Court’s “right to vote” revolution in constitutional law during the 1960s. That body of law established that most restrictions on who is qualified to vote (other than those concerning citizenship, residency, and age under 18) will be subject to strict scrutiny—a very demanding standard, which requires the government to show restrictions are necessary to further a compelling governmental interest—and are likely to be unconstitutional. For several decades after this revolution, there was not a lot of controversy or constitutional cases involving the basic right of access to the ballot box for all adult resident citizens.
In the late 2000s, however, constitutional and political controversies arose over how the process of voting was structured and regulated; these controversies did not concern, primarily, who was eligible to vote, but what the ground rules of elections would be. One type of controversy centered on what voters would have to do to prove that they were in fact eligible to vote. A significant number of states passed new laws that required voters to provide more extensive proof and documentation of their identity (such as various forms of photo identification) before they would be allowed to vote. A smaller number of states passed new laws requiring voters to provide greater proof of their United States citizenship than had been required in the past. A second type of controversy emerged over how easy and convenient voting should be. To make political participation easier and more accessible, a number of states in the early part of the 2000s passed laws that permitted voters to register to vote at the same time that they cast their vote, as opposed to many weeks in advance of the election. Even more states passed “early-voting laws,” which enable people to vote not just on one day—election day—but up to several weeks in advance of the election, including on weekends. A number of states that had made voting easier through these kinds of laws have decided in more recent years to cut back on the scope of these options, such as by reducing the number of days of early voting. These cutbacks on access to voting have also triggered constitutional controversies.
This essay is part of a discussion about the Fifteenth Amendment with Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School. Read the full discussion here.
In virtually every state that has enacted new requirements for proof of eligibility to vote or cut back on access to voting, the laws were passed on straight party-line votes: Republicans vote in favor of these laws, Democrats against. That has given an intensely partisan political cast to these constitutional controversies as well. Critics of these laws argue that (1) there is no significant need for new laws concerning proof of citizenship or identity because there is no real evidence that under the previous, long-standing laws, voters who were not eligible were actually voting; (2) these laws are likely to suppress voting and make it more difficult for eligible voters to vote; and (3) these laws are passed for partisan purposes because those more likely to vote Democratic are less likely to have the relevant documents, even when they are eligible to vote. Proponents of these laws argue they help ensure the integrity of the political process. Similarly, critics argue that there is no good reason to cut back on methods that make it easier to vote and that the only reason for doing so is to make it harder for certain groups of voters to vote.
The framework the courts will use to decide whether any of these laws are unconstitutional is set by modern cases like Crawford v. Marion County Election Board (2008) and Burdick v. Takushi (1992): do these laws impose a “severe” burden on the right to vote—or a reasonable, non-discriminatory one; and does the state have a good enough reason for enacting these laws? In Crawford, the Court concluded that laws requiring proof of identity to vote are not per se unconstitutional, but left open the possibility that particular voter-identification laws might be unconstitutional if they imposed a severe burden on the right to vote without sufficient justification. The Supreme Court is just beginning to sort these issues out. At the time of this writing, there are several major cases pending before the Court on these novel issues.
The Constitution also requires that voters—and the ballots they cast—be treated equally during the voting process. That principle flows from Bush v. Gore (2000), which required that in a presidential election all ballots being manually recounted during a disputed election had to be counted under a method that would ensure all ballots would be treated uniformly. The lower courts have applied this principle to hold, for example, that laws cannot permit certain groups of voters to vote early, but not others, without adequate justification.
Second-Generation Right to Vote Issues.
The biggest controversies in this area center on the appropriate role that considerations of race and ethnicity ought to play in the design of election districts. Under the Voting Rights Act, when blacks and whites vote in dramatic opposition to each other—when voting is “racially polarized”—election districts must be designed to make black voters the majority in a certain number of districts, to ensure a fair opportunity of all groups to elect candidates they prefer. But at the same time, the Court has concluded that if states use race too much in the design of districts, the Equal Protection Clause is violated. If that sounds complicated, it is: too little attention to race can violate the Voting Rights Act, but too much attention to race can violate the Constitution. There is also policy disagreement about which way of designing districts is in the best interests of minority voters: are they better off being a majority in a few districts, so that they can control who gets elected there, or are they better off being a significant presence in many more districts, even if they do not constitute the majority in any of them?
These issues are also becoming increasingly complex as America becomes more diverse. Particularly with the dramatic rise in the Hispanic and Asian populations in recent years, the questions of how to design a system of fair political representation—and what role the Constitution plays in that process—have become increasingly complicated.
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