The long arc of history of American democracy has bent toward extending voting—the country’s most basic and possibly most-taken-for-granted right.
Today, 150 years after ratification of the 15th Amendment to the U.S. Constitution, the number of African-Americans registered to vote and actually voting in the U.S. has dramatically increased. In some parts of the South, turnout by blacks is greater than whites.
Women, having fought their own decades-long battle over prejudice and entrenched social norms, doubled the size of the electorate when the 19th Amendment was ratified 100 years ago in 1920 and eventually became a political force as their votes diverged from those of men.
But gains in extending the franchise have not come without a fight—including a century of violence, intimidation, and repression in the case of African-American voters—as well as setbacks. Legislation that makes it more difficult for a wide array of citizens to vote, although far different in scale and type from that used generations ago, continues to this day.
And with the 2020 presidential election fast approaching, a daunting new issue—critical health concerns about the prospect of in-person voting during a pandemic—is stirring debate and challenging our ideas about how best to preserve and protect voting rights for all Americans.
“Of course, we are much better off than we were at the time of the 15th or the 19th,” says Nathaniel Persily, JD ’98, the James B. McClatchy Professor of Law. “But we still have a long way to go. There are newer, subtler barriers to the franchise now than there were when we had literacy tests and poll taxes let alone disenfranchisement of wide swaths of the American population.”
Today, battles over the right to vote are driven more by a desire for partisan advantage, Persily says. And the intensity of those battles, he notes, has risen to fever pitch since Bush v. Gore made clear that even a few votes can change the course of history. Meanwhile, progress for women has been significant.
“The 19th Amendment has been stunningly effective. There is no place in the country where women find it more difficult to vote than men,” says Pamela Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law and Stanford Supreme Court Litigation Clinic co-director.
The guarantees of the 15th Amendment, Karlan notes, have been much more elusive. “The promise that race would play no role in citizens’ ability to vote was a dead letter for over 100 years,” she adds. “Barriers to voting, some of them deliberately set, still exist.”
Many of those barriers have been enacted in states that were once required to get approval from the Department of Justice under the Voting Rights Act of 1965, the federal law that re-started the journey to full citizenship for African-Americans. The Supreme Court struck down those pre-clearance provisions in 2013 in the case of Shelby County v. Holder, saying the formula for determining the covered states was unconstitutional.
One group hit particularly hard remains: the 60 million Americans living with disabilities who face physical and other barriers to voting despite heightened public consciousness and new statutory protections.
“It is difficult to applaud democratic values when up to one-fifth of the electorate has problems voting,” says Rabia Belt, associate professor and an expert in the voting rights of disabled people.
And state laws, some dating back to the 19th century, disenfranchise citizens for reasons of mental incapacity. The Spectrum Institute, a disabilities rights group, estimates that as many as 3,200 disabled Californians under legal conservatorship lose their right to vote each year. In 2016, the state amended its law to give these citizens more protections.
But such discriminatory laws remain on the books in more than 39 states, and while it is unclear how vigorously they are enforced, Belt says there is also little political will to repeal them.
Restrictions on who can vote are as old and as diverse as America itself. At the establishment of the United States, voting was limited to property-owning adult men. Working class people were seen as dependent and lacking a sufficient stake in the community to have a say over its governance; similar reasons were used to disenfranchise people on government relief or under legal guardianship. And people who committed crimes were felt to have forfeited their right to vote.
Battles over voting have played out with changes in the nation’s economy and social structure. In the latter part of the 19th century, as blacks were increasingly disenfranchised in the South, the North focused on immigrants, particularly the Irish, who were seen as a source of “instability, corruption, and mob rule,” says Robert Gordon, professor of law.
“Northern politicians went on a kind of purge of what they considered to be lower orders of the electorate,”
Gordon says. “It was a way to reconstruct the electorate into one that was more comfortable and less threatening.”
Native Americans, too, were denied the vote because they were deemed members of “quasi-foreign nations,” says Gregory Ablavsky, associate professor of law and an expert in legal issues of the early American West. At the same time, many felt the cost of gaining political rights—reduced tribal sovereignty and assimilation into the American mainstream—was too high.
When Congress finally granted citizenship to all Native Americans in 1924, the question of voting rights was left up to the states, where in some cases they remained disenfranchised until the 1950s and 1960s. “It was similar to Jim Crow,” Ablavsky says. “Native peoples were made citizens but without equality or meaningful rights.”
Today, a growing number of Native Americans see the vote as a way to shape federal and state decisions affecting Indian country. Ablavsky cites a successful voting rights lawsuit filed in 2017 by the Navajo Nation in which a federal judge ruled voting districts in San Juan County, Utah, had been illegally gerrymandered. Under the newly drawn districts, voters elected a Navajo majority to the county commission, which had previously supported the Trump administration’s reduction of the size of Bear Ears National Monument.
By the mid-19th century, emancipation of the working class raised hopes for further extension of the franchise. One by-product: the legendary Seneca Falls Convention in 1848 that launched the women’s rights movement. With deep ties to abolitionists, women saw rising pro-democratic sentiment as lifting both causes.
But the contest over the 15th Amendment shattered the hopes of many women activists, with the two matriarchs of the movement, Elizabeth Cady Stanton and Susan B. Anthony, together adopting a sharply different tack, exploiting ethnic and racial fears.
“To broaden their appeal, leaders assured conservatives that female suffrage would stand as a bulwark against rule by ‘brutish . . . ignorant Negro men’ and ‘unlettered and unwashed’ immigrants,” said Deborah Rhode, Ernest W. McFarland Professor of Law and director of the Center on the Legal Profession, in an op-ed earlier this year on the ratification of the 19th Amendment, which was adopted on August 26, 1920.
And while many observers thought that the presence of women in the electorate was going to change the nature of politics, creating a block that favored welfarist and family-friendly policies, that did not happen.
“It turned out women voted basically the same way men did,” Gordon says. Only generations later did women begin rallying around candidates in ways markedly different from men, he notes, an eventual gender gap that reflected candidate positions on such issues as abortion rights and the Equal Rights Amendment.
For African-Americans, ratification of the 15th Amendment, on February 3, 1870, marked a second rebirth of the nation, enfranchising a million men who only a few years earlier had been slaves.
For two decades, black adult men voted in large numbers, with hundreds elected to public office. But a resurgent South responded with extra-legal terror and politicized violence. With the end of Reconstruction, a wing of the Democratic party in the South known as the “Redeemers” took control. Suffrage-restricting constitutional amendments were enacted in every former Confederate state with the goal of restoring the old order of white supremacy. The effect was immediate and devastating: Registration of African-Americans plunged into the single digits.
“You had a combination of white supremacy in the South and in the North you just had indifference,” says Lawrence Friedman, Marion Rice Kirkwood Professor of Law.
The U.S. Supreme Court aided and abetted the process, Friedman says, upholding most of the techniques of disenfranchisement. In 1903, for example, the Court considered the challenge of a literate black man to an Alabama law that had disenfranchised tens of thousands through poll taxes, literacy requirements, and other tricks.
The racist law was allowed to stand on the then new principle that the federal courts should not get involved in cases involving “political rights.” In his landmark work, American Law in the 20th Century, Friedman calls the ruling in Giles v. Harris “technical and smarmy.”
Black voting in the South languished for generations, revived only when the federal government under the Voting Rights Act assumed responsibility for enforcing the 15th Amendment. Gradually, voting among African-Americans recovered, hitting a peak with the re-election of Barack Obama in 2012, when turnout among African-American voters (66 percent) eclipsed that of white voters (64 percent) for the first time in history, the U.S. Census Bureau found.
The Supreme Court cited such gains in the Shelby County case as evidence that the protections afforded black voters in the South under the Voting Rights Act were no longer justified under the law. “Nearly 50 years later, things have changed dramatically,” the Court said in an opinion by Chief Justice John Roberts. “Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”
But Karlan worries that minority voters are again facing headwinds, even as formal barriers to casting a vote and having it counted have been eliminated.
In North Carolina, a law enacted by the legislature, including reduction in early voting, targeted Democratic-
leaning African-American voters “with almost surgical precision,” a federal appeals court found in 2016. In 2017, a federal judge in Texas found that the state’s new voter ID law, which required voters to show one of seven forms of government-issued photo identification, such as a driver’s license or passport, before casting a ballot, was enacted with “discriminatory intent,” focused on IDs that minority voters were least likely to possess.
Felon disenfranchisement laws also still impact African-Americans disproportionately, because they occupy an outsized portion of the nation’s prison population.
Since the mid-1990s, states have started modifying such laws, narrowing crimes that trigger the loss of the vote or making it easier for the formerly incarcerated to have the right restored. Still, some 6 million people are unable to vote because they have been convicted of a felony, according to the Sentencing Project, a nonprofit criminal justice reform organization, based in Washington, D.C.
“There is a lot of political momentum behind trying to end felon disenfranchisement,” says Bernadette Meyler, JD ’03, the Carl and Sheila Spaeth Professor of Law and associate dean for research and intellectual life, adding that the U.S. remains one of the most punitive nations when it comes to denying convicted persons voting rights. “The U.S. is the only democracy that allows permanent denial of the vote to those convicted of all felonies.”
On May 24, a federal judge in Tallahassee declared Florida’s felon disenfranchisement law unconstitutional, saying it violated the 24th Amendment’s ban on poll taxes. The ruling could enfranchise up to a million new voters, a disproportionate number of whom are African-American, and affect how the state, and perhaps even the nation as a whole, votes on November 3.
In a 2018 ballot initiative, Florida voters repealed a Civil War era section of the state’s constitution that barred people with felony convictions from voting. The state’s Republican-controlled legislature then enacted a law requiring that formerly incarcerated persons pay off court-ordered legal obligations such as fines and restitution before they could have their voting rights restored.
While not labeled a poll tax, U.S. district judge Robert Hinkle held that the costs and fees the state imposed on defendants fell within the 24th Amendment’s ban on conditioning the right to vote on payment of “any poll tax or other tax.” Because the revenue was used to pay for government operations, the judge said it constituted “a tax by any other name.”
Hinkle also cited the state’s “staggering inability to administer the pay-to-vote system,” including records problems that prevented defendants from knowing how much each owed in a timely manner.
“This is the biggest win for voting rights in decades,” says Mark Gaber, JD ’10, trial litigation director at the Campaign Legal Center in Washington, which is counsel for members of a court-certified class action in the case. “The end of Florida’s ‘pay-to-vote’ system for people with prior convictions means hundreds of thousands of Floridians are no longer disenfranchised because they are poor, they owe court-imposed costs and fees, or the state has lost their criminal records.”
The state is expected to appeal Hinkle’s ruling.
Persily says there is much more that states could do to make voting easier for all citizens, such as expanded in-person early voting, easy vote-by-mail options, and same-day registration.
States should also make an affirmative effort to register all citizens to vote, he says, instead of putting the onus on individuals. Requiring people to register every time they move, he says, is a major factor depressing turnout.
The novel coronavirus pandemic is highlighting the different attitudes and practices among the nation’s estimated 10,000 state and local election administrators. A number are easing restrictions on voting by mail; California plans to go to an all-mail ballot in November. Meanwhile, some believe absentee voting undermines election security and invites fraud, issues that Persily is addressing head-on in a new practicum Stanford Law School Election Law Project (go to www.stanfordlawyer.com to learn more).
Karlan sees an opportunity to learn from history. She notes absentee voting was born during the Civil War when the Republican Party—facing a choice of bringing soldiers home to vote and endangering the war effort or leaving them in the field and risk losing the election to Democrats—chose to allow voting in distant military encampments.
The first successful federal legislation banning a poll tax, she says, took place during World War II when the government let soldiers and sailors cast ballots without having to pay the taxes Southern states had imposed.
Such ideas, she says, are germane at a time when voters face risking a deadly disease to vote or the cost of postage to vote absentee.
“People should not have to pay or risk death in order to vote,” Karlan says. “In an advanced democracy, that is just unacceptable.”
Belt is hopeful that the discussion about expanding the opportunities for able-bodied people to vote will make the public more conscious of the challenges that disabled persons face every day. “These are all issues that folks with disabilities have been thinking about a long time,” Belt says. “Now they are becoming everyone’s issues.” SL