Transcript John T.R. Holder, Ph.D. Department of Political Science John C. West Forum on Politics and Policy Winthrop University Constitution Day 2014

John T.R. Holder, Ph.D.
Department of Political Science
John C. West Forum on Politics and Policy
Winthrop University
Constitution Day 2014
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Under the Articles of Confederation, the states
retained control of the eligibility of voters.
The original Constitution simply provided that
anyone who was qualified to vote for “the most
numerous branch of the state legislature” was
eligible to vote for members of the U.S. House
of Representatives, which was the only part of
the national government originally chosen by
popular election.
But the states retained the power to decide who
was eligible to vote for state and local office.
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State legislatures have the authority
under the Constitution to determine how
their state’s electors for President and
Vice President are chosen. In the
beginning, most legislatures chose the
electors themselves, with no popular
election.
South Carolina did not hold popular
elections for members of the Electoral
College until after the Civil War.
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While every state (and Washington, DC)
now provides that electors are chosen by
popular vote, there is still no explicit
Constitutional right for individuals to
vote for President and Vice President.
The Florida Legislature could have
resolved the 2000 election controversy
simply by passing a state law naming a
particular group of people to cast the
state’s electoral votes.
Economic status
 Many states restricted voting to property
owners or taxpayers until the mid-19th
Century. Poll taxes existed in many areas
until the 1960’s.
 Religion
 Non-Protestants were barred from voting in
some states prior to the ratification of the
Constitution.
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Race and ethnicity
 Slaves were not citizens and had no
voting rights.
 Voting was restricted to whites even in
some states without slavery.
 Many Native Americans/American
Indians were not citizens and could not
vote.
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Gender
 Women could vote in New Jersey until
it was explicitly prohibited in 1807.
 Some areas allowed women to vote in
some (but not all) 19th Century
elections (example: school board
elections).
 The Territory of Wyoming was the first
U.S. jurisdiction to grant women
universal voting rights in 1869.
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The Territory of Utah gave women the
right to vote in 1870, but it was
subsequently repealed by Congress
(which could overrule territorial laws).
When Utah sought statehood in 1896,
one of the conditions set by Congress
was that women could not be given the
right to vote.
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Utah agreed to this restriction, was
admitted to the Union, and then gave
women the right to vote (since the
Constitution gives the states the power to
set the qualifications for voters, there was
nothing Congress could then do about
it).
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Citizenship status and residency
 During the large wave of immigration in the
mid-19th Century, many states adopted
lengthy residency requirements which
prevented newly naturalized citizens from
voting for several years after their arrival in
the U.S.
 Other states, predominantly in the Midwest,
sought to encourage settlement by extending
voting rights to immigrants even before they
became citizens.
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Citizenship status and residency
 Until the 1960’s, many states required
residency of one year before becoming
eligible to vote. This disenfranchised mobile
workers (who tend to be younger and poorer
than average). In 1970, the Supreme Court
ordered a maximum residency requirement
of 30 days for voting in presidential elections.
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The 15th Amendment (1870) barred
discrimination in voting on the basis of “race,
color, or previous condition of servitude
[slavery].”
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The 14th (1868) and 15th Amendments are the
first time the “right to vote” is explicitly
mentioned in the Constitution.
The 17th Amendment (1913) provided for the
popular election of U.S. Senators.
The 19th Amendment (1920) barred
discrimination in voting on the basis of sex.
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The 23rd Amendment (1961) gave residents of
the District of Columbia representation in the
Electoral College.
The 24th Amendment (1964) abolished the poll
tax in federal elections. A Supreme Court
decision in 1966 abolished it for state elections.
The 26th Amendment (1971) lowered the voting
age to 18 nationally; it was 21 in most states.
Now, almost all citizens 18 and older have the
right to vote in all elections.
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After the former Confederates regained control of
Southern state governments in the late 19th
Century, they sought to disenfranchise former
slaves and other African American citizens, as well
as many poor whites.
Poll taxes (which had to be paid retroactively)
disenfranchised those who could not afford to pay them.
 South Carolina had an “eight box law.” There was a
separate ballot and ballot box for each office up for
election. Placing your ballot in the wrong box disqualified
your vote. This disenfranchised many poorly educated
people of both races who could not read the box labels.
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“White primaries”
The Democratic Party was organized as a private
club.
 Membership was restricted to whites.
 Membership in the club was required to participate
in its activities, including voting in the Democratic
primary, which was the decisive election in most of
the one-party South.
 This was outlawed by the Supreme Court in 1944.
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Literacy tests
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Requiring voters to prove the ability to read and
write in English had been used as early as the mid19th Century to prevent immigrants from voting.
Many Southern states adopted literacy requirements
which could be judged at the discretion of the local
voting registrar. In most cases, this involved being
able to read and interpret a section of the U.S. or
state Constitution. The local registrar had a great
deal of power to decide whether applicants passed
or failed.
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Alabama:
http://www.ferris.edu/htmls/news/jimcrow
/origins/images/al_literacy.pdf
Louisiana:
http://www.tn.gov/tsla/exhibits/blackhistor
y/pdfs/Voter%20Test%20LA.pdf
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“The Congress shall have the power to enforce this
article by appropriate legislation.” 15th Amendment
Section 2 suspended the use of literacy tests
nationwide.
Section 3 provided for federal voting registrars
in areas with evidence of voting discrimination
based on race.
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Eligible black voter registration:
Mississippi: 6.7% in 1964, 59.8% in 1967
Alabama: 66,000 in 1960, 273,000 in 1968
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Section 5 required electoral jurisdictions which
used literacy tests or similar devices, and
which had less than 40% turnout of eligible
voters in the presidential election of 1964, to
obtain the approval of the Civil Rights Division
of the U.S. Department of Justice, or the U.S.
District Court for the District of Columbia,
before changing any electoral procedures
(“preclearance”).
The Supreme Court upheld the VRA in 1968.
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1970: Permanently eliminated literacy tests.
Changed the preclearance formula based on
turnout of eligible voters in the 1968
presidential election.
1975: Added language minorities to those
protected against discrimination. Required that
jurisdictions where more than 10% of the
population primarily speaks a language other
than English must provide balloting materials
in that language.
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1982: Changed the legal standard so that it was no
longer necessary to prove discriminatory intent,
but merely discriminatory effect, to challenge a
procedure under the VRA. Renewed the Act for 25
years.
2006: Renewed the Act; the preclearance
provisions were struck down by the Supreme
Court in 2013 on the grounds that long-ago
discrimination could not be used as the basis for
determining whether a jurisdiction had to have
Justice Department approval to change its election
practices.
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(Data as of 2009):
5.85 million ex-felons are ineligible to vote after
their criminal sentences have been served
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7.7% of black adults nationally, 23% in Florida
In Florida, Iowa, Kentucky and Virginia,
disenfranchisement is permanent after any
felony conviction
In Arizona, it’s permanent after a second felony
conviction
In Nebraska, it lasts until 2 yrs. after probation
is completed
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In AL, MS, NV, TN, and WY,
disenfranchisement is permanent after
conviction for at least some types of felonies
In CA, CO, CT and NY, you have no voting
rights while on parole
In 31 states incl. SC, you have no voting rights
while on parole or probation for a felony
In ME and VT, you can vote while in prison
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(Data as of 2007)
In seven states, people who have been judged
mentally incapacitated automatically lose the
right to vote.
In 37 states, these people may lose the right to
vote under certain circumstances.
Is this a violation of their Constitutional rights,
or a safeguard against their votes being
fraudulently cast?
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32 states have laws requiring voters to present
some form of identification at the polls. As of
2013, South Carolina requires a state-issued
photo ID.
Photo ID laws have been upheld by the
Supreme Court despite claims that they are
discriminatory
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Poor people are less likely to have access to the
documentation needed to get photo ID
African Americans born prior to the Civil Rights Act
of 1964 are less likely to have been born in a hospital
and therefore less likely to have a birth certificate
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Academic research indicates that very little vote
fraud takes place in the form of identity
impersonation at the polls on Election Day (which
is what ID laws would combat)
Minnesota has prosecuted two cases of identity
impersonation in voting since 1986.
An estimated 11% of eligible voters do not have
government-issued photo ID; it is argued that the
number of eligible voters disenfranchised by these
laws far exceeds the number of cases of potential
fraud that are prevented.
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The Supreme Court ruled in 1979 that a
dormitory qualifies as a residence for voting
eligibility purposes.
Many states require that voters register at their
principal legal residence (for most college
students, their home rather than their dorm).
Some jurisdictions allegedly require a higher
standard of proof of residence from college
students than from others.
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In Texas, a student ID card from a state
university does not meet the “state-issued
photo ID” requirement for voting. However, a
concealed-carry weapons permit does.
In 2013, a North Carolina county elections
board tried to have a college student
disqualified from running for City Council
where he attended school, on the grounds that
living in the dorm did not meet the residency
requirement. He challenged the ruling, won the
case, and then won the election.
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Alexander Keyssar, The Right to Vote: The
Contested History of Democracy in the United
States, Revised Edition, New York: Basic Books,
2009.
Thank you!