Voting Rights Law and Constitutional Protection
The right to vote is the foundation of democratic government. It is the right that preserves all other rights, the mechanism through which citizens hold their government accountable and participate in the collective enterprise of self-governance. The Constitution has been amended five times to expand the franchise, and Congress has enacted landmark legislation to enforce these guarantees. Despite these protections, the struggle for voting rights continues, as new barriers emerge and old forms of discrimination persist.
The Constitution originally left voting qualifications almost entirely to the states. The framers did not create a federal right to vote; they assumed that those who could vote for the lower house of their state legislature would be eligible to vote for the House of Representatives. This delegation to the states created a patchwork of voting qualifications that evolved over the nation’s history, with federal constitutional amendments gradually establishing uniform minimum standards.
Constitutional Foundations of Voting Rights
The Constitution’s voting rights provisions are contained primarily in its amendments. The Fifteenth Amendment (1870) prohibits racial discrimination in voting. The Seventeenth Amendment (1913) provides for the direct election of Senators. The Nineteenth Amendment (1920) prohibits sex-based discrimination in voting. The Twenty-Fourth Amendment (1964) prohibits poll taxes in federal elections. The Twenty-Sixth Amendment (1971) prohibits age-based discrimination in voting for citizens eighteen and older.
Despite these amendments, the right to vote remains largely defined by state law. States establish the time, place, and manner of elections, subject to federal constitutional and statutory limitations. The Supreme Court has held that the right to vote in state and local elections is not a fundamental right for all purposes, but once a state grants the franchise, it must comply with the Equal Protection Clause and other constitutional requirements in administering its election laws.
The Fifteenth Amendment
The Fifteenth Amendment provides that the right of citizens 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, the amendment was intended to enfranchise newly freed African American men in the Reconstruction South.
The Supreme Court initially gave the Fifteenth Amendment a narrow interpretation. In United States v. Reese (1876), the Court struck down federal enforcement provisions as exceeding Congress’s power. In Williams v. Mississippi (1898), the Court upheld literacy tests and other facially neutral voting restrictions that were administered in a racially discriminatory manner. These decisions effectively nullified the Fifteenth Amendment for nearly a century, as Southern states employed poll taxes, literacy tests, grandfather clauses, and violent intimidation to prevent African Americans from voting.
The Voting Rights Act of 1965
The Voting Rights Act of 1965 (VRA) is the most important federal legislation protecting voting rights. Congress enacted the VRA after the Civil Rights Act of 1964 and the violent suppression of voting rights activists in Selma, Alabama, which demonstrated that existing legal remedies were inadequate to combat entrenched racial discrimination in voting.
Section 2: The Results Test
Section 2 of the VRA prohibits any voting qualification or practice that results in a denial or abridgment of the right to vote on account of race or color. The Supreme Court held in Thornburg v. Gingles (1986) that Section 2 applies to vote dilution claims — where an electoral practice, such as at-large voting, minimizes the voting strength of a protected group.
To prevail under Gingles, plaintiffs must show that the protected group is sufficiently large and geographically compact to constitute a majority in a single-member district, that the group is politically cohesive, and that the white majority votes sufficiently as a bloc to defeat the group’s preferred candidates. If these conditions are met, courts may require the creation of majority-minority districts or other remedial measures.
Section 5: Preclearance
Section 5 required certain jurisdictions with a history of voting discrimination to obtain federal approval (“preclearance”) before making any changes to their voting laws. The preclearance requirement applied to nine states and parts of several others, based on a coverage formula that looked at the use of literacy tests and other discriminatory devices in the 1960s and 1970s.
In Shelby County v. Holder (2013), the Supreme Court struck down the coverage formula as unconstitutional, effectively gutting the preclearance requirement. The Court held that the formula was based on forty-year-old data and no longer reflected current conditions. Chief Justice John Roberts wrote that “our country has changed” and that the “extraordinary” measure of preclearance could not be justified by outdated evidence.
The Shelby County decision dramatically altered the landscape of voting rights law. Several states, particularly in the South, immediately enacted new voting restrictions — including strict voter ID laws, cuts to early voting, and polling place closures — that had previously been subject to preclearance review. Congress has not enacted a new coverage formula, and Section 5 remains effectively inoperative.
Modern Voting Rights Issues
Contemporary voting rights litigation addresses a range of issues, including voter identification laws, partisan gerrymandering, felon disenfranchisement, and access to the ballot for minority language groups.
Voter ID Laws
Many states have enacted laws requiring voters to present photo identification at the polls. Proponents argue that these laws protect against voter impersonation fraud. Critics argue that fraud is extremely rare and that voter ID laws disproportionately burden minority, elderly, and low-income voters.
Courts have reached different conclusions about the constitutionality of voter ID laws under the state action doctrine and the Equal Protection Clause. Some courts have upheld strict voter ID laws, while others have struck them down as intentionally discriminatory or as imposing an undue burden on the right to vote. The Supreme Court upheld Indiana’s strict voter ID law in Crawford v. Marion County Election Board (2008), but the Court did not establish a clear standard for evaluating such laws.
Felon Disenfranchisement
Approximately 4.6 million Americans are barred from voting because of a felony conviction. The laws governing felon disenfranchisement vary widely by state. Some states automatically restore voting rights upon completion of sentence; others require a formal restoration process or permanently disenfranchise certain categories of offenders.
The Supreme Court upheld felon disenfranchisement laws in Richardson v. Ramirez (1974), holding that Section 2 of the Fourteenth Amendment implicitly authorizes states to deny the vote for participation in rebellion or other crime. The Due Process Clause and Equal Protection Clause challenges to these laws have generally been unsuccessful, though some states have recently expanded voting rights for formerly incarcerated individuals.
Partisan Gerrymandering
Partisan gerrymandering — the drawing of electoral districts to favor one political party — has been the subject of extensive litigation. The Supreme Court held in Rucho v. Common Cause (2019) that partisan gerrymandering claims are not justiciable in federal court, meaning that federal courts cannot hear them. The Court held that the Constitution commits the question of partisan gerrymandering to the political branches.
The decision has led to increased activity in state courts, where partisan gerrymandering claims may be brought under state constitutional provisions. Some state courts have struck down extreme partisan gerrymanders under state constitutional guarantees of free elections and equal protection.
Voting Rights and Language Minorities
The Voting Rights Act contains important protections for voters who speak limited English. Section 203 requires certain jurisdictions to provide voting materials in the language of the relevant minority language group. This provision applies to jurisdictions where more than five percent of voting-age citizens are members of a single language minority group and have limited English proficiency, or where more than ten thousand voting-age citizens meet this description.
The language assistance provisions of the VRA reflect the principle that the right to vote is meaningless if voters cannot understand the ballot or the issues at stake. Covered jurisdictions must provide registration notices, ballots, instructions, and other voting materials in the applicable minority language. They must also provide oral language assistance at polling places.
The equal protection clause also supports language access in voting, though the Court has not definitively addressed whether the Constitution independently requires language assistance. The combination of statutory and constitutional protections ensures that language barriers do not prevent eligible citizens from exercising the franchise.
Voter Purges and List Maintenance
The maintenance of voter registration lists has become a contentious issue in voting rights law. States regularly remove names from voter rolls when voters die, move, or become ineligible. The National Voter Registration Act of 1993 regulates these list maintenance activities, requiring states to make reasonable efforts to remove ineligible voters while prohibiting systematic removals within ninety days of a federal election.
Critics argue that some states have used voter list maintenance as a pretext for removing eligible voters, particularly minority voters and voters who tend to support a particular party. The Supreme Court addressed this issue in Husted v. A. Philip Randolph Institute (2018), upholding Ohio’s practice of sending notices to voters who had not voted in recent elections and removing those who failed to respond and did not vote over the next four years.
The case illustrates the tension between the interest in accurate voter rolls and the interest in ensuring that eligible voters are not improperly removed. The Court held that Ohio’s process was consistent with federal law, but the decision has been criticized by voting rights advocates who argue that it increases the risk of wrongful purges.
Frequently Asked Questions
What is the difference between the Voting Rights Act and the Constitution? The Constitution establishes the baseline prohibition on discriminatory voting practices. The Voting Rights Act provides additional statutory protections and enforcement mechanisms that go beyond what the Constitution alone requires. Congress has the power to enforce voting rights under Section 2 of the Fifteenth Amendment and other enforcement provisions.
Can I vote if I move close to an election? Federal law requires states to allow voters who have moved within the same state to vote in their prior precinct or to cast a provisional ballot. The specific procedures vary by state, but federal law protects the right to vote for recent movers.
Do non-citizens have the right to vote? The Constitution does not prohibit non-citizens from voting in state and local elections, but federal law prohibits non-citizens from voting in federal elections. Some states have explicitly authorized non-citizen voting in local elections, while most restrict voting to citizens.
What protections exist for voters who speak limited English? Section 203 of the Voting Rights Act requires certain jurisdictions with large populations of limited-English-proficient citizens to provide voting materials in the relevant minority language. This provision applies to jurisdictions with significant populations of Spanish, Asian, Native American, or Alaska Native heritage.
Conclusion
Voting rights law reflects the ongoing American struggle to realize the democratic promise that every citizen’s voice deserves equal weight. From the Fifteenth Amendment to the Voting Rights Act to contemporary debates about voter identification and district boundaries, the law of democracy continues to evolve. Protecting the right to vote requires constant vigilance, as new challenges to the franchise emerge and old barriers are replaced by new ones.