With election season upon us, most Americans assume we have an absolute right to participate in the elections and to vote for the candidate of our choosing. The reality is a bit more complex. With the Constitution as our guide, here are 10 interesting facts about the “right to vote” in America.
1. No Right to Vote in the Constitution. The Constitution guarantees many rights, including the right to free speech and freedom of religion. But neither when passed in 1788, nor as it exists today in 2019 (with its 27 amendments) does the Constitution contain an express right to vote. While lacking this guarantee, the Constitution has a lot to say about voting, with the word “vote” appearing more than 40 times in the Constitution. Where voting rights have been established by other means (see below) the Constitution forbids denying that right to citizens based on race or color (15th Amendment), or sex (19th Amendment), or the failure to pay a poll tax (24th Amendment), or age for anyone 18 or older (26th Amendment).In other words, today when the right to vote exists, it has to be available without discrimination.
2. Did the Founding Fathers “Forget” the Right to Vote? At first glance, it seems that way. How could such an important right—perhaps the most important right—fail to be included in the Constitution? The answer is two-fold.
First, the battle over ratification of the Constitution, from 1787-88, was fought between the Federalist and the Anti-Federalist, with the latter demanding that power should largely remain with the states, and not with the federal government. As with many issues, the Constitution compromised on this issue, giving the states the power to manage elections, but allowing Congress to step in if needed. Article 1, Section IV states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” In other words, the Founding Fathers deliberately decided to leave with the states the power to to establish the “rules of the road” for voting and elections, and today all 50 States recognize a right to vote.
Second, the Founders saw voting (as least for white males) as so central to the very idea of America that they believed no state would dare to deny its citizens the right to vote. To make sure of this, Article IV of the Constitution states that “the United States shall guarantee to every State in this Union a Republican Form of Government.” Since citizens hold ultimate power in a republic, if a state denied all of its citizens the right to vote, that would be a denial of a republican form of government. If such a denial occurred, the “Guarantee” clause would open the door to Federal intervention.
3.Early Voter Discrimination. In the early decades of our nation, the franchise was generally limited to property-owning white males. For example, Georgia limited suffrage to white males owning at least 50 acres of land. Delaware required at least 40 dollars of property in order for white males to vote. And Connecticut only allowed those white males to vote who owed land worth an annual rent of $2 or livestock worth $40.
4. The Long Fight for Full Voting Rights. The struggle for full voting rights in America has been long, difficult and bloody, and remains ongoing. After the Civil War, Jim Crow and Black Codes tried to reverse the 15th Amendment, which had promised that the right to vote could not be denied based on “race, color, or previous condition of servitude.” A key goal of the long Civil Rights movement was to hold America to that promise. The landmark Voting Rights Act of 1965 was a major step toward that goal, and banned many techniques—such as literacy tests, property requirements, or moral character tests—that had been used to prevent Americans from voting.After an epic struggle, women finally gained the Constitutional right to vote in 1920 with the 19th Amendment. Poll taxes and other anti-voting measures were eventually banned. The right to vote in America has come a very long way, and now more than 240 million Americans enjoy this essential right.
5.Obstacles to Voting Today. Despite huge success in the fight to extend suffrage, major obstacles to voting remain, including overly stringent voter ID laws; requiring registration far in advance of an election; limited or non-existent absentee voting; difficult procedures for obtaining required voter IDs; and purging registered voter lists shortly before an election. Preventing voter fraud is often cited as the reason for these laws, and while most agree this is a valid goal, most also agree that this goal must be pursued in a way that does not infringe on American’s fundamental right to vote. The courts have not been not shy in striking down “voter fraud prevention” laws that go too far in this area.
6. Census. Article 1, Section 2 of the Constitution mandates a census every 10 years. The 2020 Census powerfully impacts voting. The census results will (a) determine the number of representatives that each state gets to have in Congress, (b) impact the number of electors that each state has in the Electoral College for the Presidential election and (c) influence the amounts that each state receives in various federal aid programs. In a headline-grabbing case (Department of Commerce v. New York) decided just a few month ago, the Supreme Court ruled that the Trump Administration could not add a citizenship question to the Census. Rejecting the government’s rationale for adding the question, the court found that “the evidence tells a story that does not match the explanation the Secretary gave for his decision.” The court also observed that while it usually deferred to government in this area, “we are not required to exhibit a naiveté from which ordinary citizens are free.” The upshot: the main 2020 census form will not contain a citizenship question.
7. Gerrymandering. Named after Vice President Elbridge Gerry, gerrymandering is the practice of created oddly-shaped voting districts usually with the goal of helping the party that draws up the map, or harming that party’s opponents. One gerrymandering technique is to try to draw lines—even if they meander all over the state—to ensure that the favored party has a majority of the electorate in as many districts as possible. Gerrymandering can be particularly harmful for minority groups. Gerrymandering sometimes violates the “one person one vote” principle because it can give more weight to some votes (for example votes of the favored party in districts gerrymandered to give the favored party a slight majority in multiple districts) and less weight to others (for example those votes in a district that has been packed with nearly 100 percent of the opposing party).
8.Right to Vote in Virginia. Unlike the Federal Constitution, the Virginia Constitution expressly grants Virginians the right to vote (Article 1) and sets out rules for who can vote and how elections are to be conducted (Article 2). These constitutional provisions are supplemented by state and local laws. While Virginia and other states have the freedom to set their own voting rules, those local rules can be (and often have been) struck down if they violate the Federal Constitution or Federal voting laws.
9.Washington, DC Voting Rights. In 1961, DC residents gained limited voting rights with the passage of the 23rd Amendment, which gave DC three electoral votes in presidential elections. Of course, DC still lacks direct voting representation in Congress, although a Constitutional amendment has been proposed to give DC its own voting congressman and senators.
10. Conclusion. The other rights that we prize as Americans cannot exist without the right to vote. But the right to vote is meaningless if we don’t use it—only 53 percent of those eligible voted in the 2018 Congressional elections. Supreme Court Justice Hugo Black put it this way: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”
[Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]