The Right to Vote

by Alexander Keyssar

  In the 1970s and 1980s, however, an increasingly conservative Supreme Court did establish a narrow exception to the ban on property requirements. In a series of cases beginning with Salyer Land Company v. Tulare Lake Basin Water Storage District (1973) and continuing through Ball v. James (1980), the Court ruled that participation in elections for entities such as water storage districts could be predicated on the ownership of property. The Court found that the powers and purposes of such entities were extremely limited and that the costs of their decisions were borne almost entirely by landowners. (The Court’s “one person, one vote” rule, to be further discussed later in this chapter, also was suspended in such circumstances.) Although liberals on the Court dissented vigorously from what appeared to be a resurrection of class-based franchise requirements, the loophole was tiny and remains so to this day. The same was true of the Court’s approval of the participation of property-owning nonresidents in some elections.37

  Literacy Untested

  The demise of literacy tests—which had served as a class barrier as well as a means of racial and ethnic screening—followed a different course. In 1959 (as noted in Chapter 7), the Supreme Court—including Justice Douglas—sanctioned literacy tests as long as they were not administered in a racially discriminatory fashion; a decade later, in the Gaston case, the Court ruled that literacy tests were unacceptable in locales where schools had been segregated. Meanwhile, the Voting Rights Act already had led to the suspension of literacy tests in most southern states in 1965, a suspension that was extended to all states, for five years, in 1970.

  The nationalization of the suspension of literacy tests had complex political roots: it was strongly advocated by the Nixon administration on the ostensibly principled grounds that literacy tests were discriminatory and antidemocratic wherever they occurred—and they were in force in a dozen northern states. “Voting rights,” declared Attorney General John Mitchell, “is not a regional issue. It is a nationwide concern for every American.” Extending the ban to all states, however, also was a means of placating southern opinion: it removed the regional stigma from the legislation and tweaked northern liberals, from states such as New York and California, with the implicit charge that their own houses might be in less than perfect order.38

  In upholding the nationwide suspension of literacy tests in Oregon v. Mitchell (1970), the justices of the Supreme Court (in an array of concurring opinions) declined to repudiate the Court’s earlier decision in Lassiter or to take a stance against literacy tests per se; instead it effectively nationalized the logic of the Gaston ruling. Blacks, as well as Native Americans and other minorities, received unequal and inferior educations in many locales in and out of the South, and this bias in educational opportunities hindered their ability to pass literacy tests. High rates of interstate migration, moreover, meant that literacy tests administered in states such as Arizona and New York could have the effect of disfranchising African Americans trained in segregated southern schools. “In imposing a nationwide ban on literacy tests,” wrote Justice Black, “Congress has recognized a national problem for what it is—a serious national dilemma that touches every corner of our land.” Although Justice Douglas hinted at other rationales as well (e.g., that thanks to radio and television, literacy was no longer necessary for a voter to become informed), the core of the Court’s decision was that a national ban on literacy tests constituted a reasonable means of enforcing the Fifteenth Amendment.39

  In light of the Court’s argument, as well as evidence of ongoing inequalities in education, it was not surprising that in 1975 Congress decided with little debate to make the ban on literacy tests permanent. The conditions that had generated the national proscription of such tests in 1970 had not disappeared, and they seemed unlikely to do so in the foreseeable future. Whether members of Congress supported a permanent ban because they subscribed to the constitutional argument linking education with literacy tests is unclear; surely there were numerous political leaders who simply believed that literacy was not a legitimate or meaningful qualification for voting. Whatever the rationale, literacy tests disappeared after 1975, and the permanent ban was never challenged in the Supreme Court. By 1975, most states even had provisions permitting the illiterate to receive assistance when voting (except by their employer or union representative), and the Voting Rights Act of 1975 required bilingual ballots and registration materials in areas with significant minority populations.40

  This assembly of laws and rulings produced a dramatic change in the ground rules for voting in some states. In New York, for example, the presence of an English-language literacy test—once heralded as a model for the entire nation—meant that Italian and Jewish immigrants had been obliged to learn English and become literate in order to vote. After 1975, the Empire State was compelled not only to permit illiterate Hispanic and Asian-American citizens to vote but also to furnish them with ballots in their own language.

  Mobile Voters

  The nationwide banning of literacy tests was accompanied by the federal government’s first effort to remove yet another obstacle to enfranchisement: lengthy residency requirements. Although some states had shortened their requirements, one year was still the norm, with shorter periods demanded in individual precincts and counties. The impact of these laws, in a society as peripatetic as the United States, was significant: according to one estimate, they kept fifteen million people from voting in the 1964 elections. Congress, encouraged by Attorney General Mitchell, took direct aim at this issue in the 1970 amendments to the Voting Rights Act. With little fanfare or controversy, the 1970 legislation prohibited the states from imposing more than a thirty-day residency requirement in presidential elections; at the same time, it mandated that those who had relocated less than thirty days prior to an election could cast absentee ballots in their previous place of residence.41

  The sources of this action are obscure, although several plausible hypotheses can be offered. Included as part of the Nixon administration’s package of amendments to the 1965 Voting Rights Act, the short residency rule certainly, and perhaps deliberately, buttressed the Republican Party’s presentation of itself as an advocate of universal suffrage and national reform. The rule also was a safe, uncontroversial means of responding to a resurgence of public concern about low electoral turnout, a concern that may have increased its valence during the tumultuous 1960s. For Republicans and Democrats alike, moreover, the very process of thinking through the validity of other franchise qualifications easily could have led to the conclusion that lengthy residency requirements simply were unfair and undemocratic. Once the spotlight was focused on the issue of voting rights, all of the holes in the fabric were illumined.

  In addition—and more speculatively—the shift in thinking about residency rules may have been tied to a long-run change in the nature of geographic mobility in the United States. In the nineteenth century, when most of the residency rules were drafted, the most mobile Americans were workers, particularly semiskilled and unskilled workers. During the middle decades of the twentieth century, that pattern began to shift: the working class became less mobile, and the middle and upper classes far more mobile. Residency requirements by 1970 thus were screening out not only working-class transients but also the kinds of respectable middle-class voters that the laws originally had been designed to protect.42

  The thirty-day rule in presidential elections was upheld by the Supreme Court in Oregon v. Mitchell. With only Justice Harlan dissenting, the Court found that Congress had the authority to regulate federal elections in this manner, through article 1, section 4 of the Constitution (which gives Congress the right to alter the “times, places and manner of holding” federal elections), article 4, section 2 (the privileges and immunities clause), or through the enforcement clause of the Fourteenth Amendment. Several of the justices also grounded their decisions in a constitutionally derived right of interstate travel, which was impeded by lengthy residency requirements.43

  Two years later, the
Court took an additional giant step, prompted in part by a host of inconsistent rulings in the lower courts: it determined that Tennessee’s residency requirement for state elections (one year in the state and ninety days in the county) violated the equal protection clause. Subjecting the law to the “strict scrutiny” test, the Court reversed a 1965 decision and concluded, in Dunn v. Blumstein, that no “compelling state interest” was served by any residency requirement longer than the period necessary for carrying out the process of registration. The “purity of the ballot box” could best be protected through other laws, and durational requirements were too crude a device for “assuring the knowledgeable exercise of the franchise.” The Court suggested that a thirty-day residency period was sufficient, although in later cases it granted Arizona and Georgia permission to adopt fifty-day residency rules. Even before the Dunn decision, several states, such as Illinois, had been considering dramatic reductions in their residency requirements—in Illinois, this change was advocated both by rural Republicans and by Chicago Democrats who complained that people were disfranchised when they moved across the street—but the Supreme Court’s action cut that process short .44

  Other longstanding features of residency rules went overboard as well. As early as 1965, in Carrington v. Rash, the Supreme Court overturned a Texas law (similar to those in many states) that prevented members of the military from establishing residency. The state could not, the Court ruled, use “occupation” as a basis for discrimination; nor could it “fence out” from the franchise any segment of the population because of the way in which it might vote. Servicemen thus were subject to the same residency criteria (physical presence combined with intention) as other citizens. In addition, the rights of students were enhanced, through a long series of state and federal court cases. (Lowering the voting age to eighteen, discussed below, amplified interest in the rights of students.)45 Students also benefited from a general loosening of the legal definition of residency: in place of the traditional notion that one had to have the intention of remaining in a locale permanently or indefinitely, the intention to remain “for the time at least” began to suffice. By the 1980s, the courts were even ruling that the homeless could establish residency for voting purposes, in parks or wherever else they regularly slept; a state could not deny individuals the right to vote because they had “untraditional” residences or could not afford housing. The thrust of the law clearly had become to include rather than exclude, to incorporate citizens into the polity rather than to screen them out. At the end of the twentieth century, the definition of residency was broader than it ever had been, durational requirements in most states had been cut by 90 percent, and absentee ballots, almost everywhere, had become relatively easy to obtain.46

  The Age of Reason

  The years between 1970 and 1972 also witnessed the culmination of a long, if sporadic, campaign to lower the voting age. Since the nation’s founding, a voting age of twenty-one—a carryover from colonial and English precedents—had been a remarkable constant in state laws governing the franchise. Proposals for lowering the age limit had appeared during or after every major war, on the grounds that men who were old enough to fight for their country were old enough to participate in its political decisions. Reasonable as this argument may have sounded, it had little effect on the traditional consensus that twenty-one was the age of political maturity.47

  The challenge to that consensus mounted during the mass mobilization of World War II. In 1942, in response to a lowering of the draft age to eighteen, Republican Senator Arthur Vandenberg and Democratic Representative Jennings Randolph sponsored a constitutional amendment to lower the voting age as well. “If young men are to be drafted at eighteen years of age to fight for their Government,” declared Vandenberg, “they ought to be entitled to vote at eighteen years of age for the kind of government for which they are best satisfied to fight.” Randolph pointed out that one-quarter of the army, half the marine corps, and more than a third of the navy consisted of men under age twenty-one. The amendment received strong support from the National Education Association, which argued that the twentieth-century increase in the number of students graduating from high school meant that eighteen-year-olds now were amply prepared for full citizenship. The Vandenberg-Randolph proposal was referred to a committee, where it died a quiet death—to be joined in subsequent years by other, similar proposals. Numerous states also considered lowering the voting age during World War II, but only one, Georgia, did so.48

  During the 1950s and into the 1960s, youth organizations, the National Education Association, and veterans groups such as the American Legion and the Veterans of Foreign Wars continued to press for state action, but their defeats were many and their successes few (Kentucky, Alaska, and Hawaii). As advocates of women’s suffrage had discovered decades earlier, amending state constitutions was a slow and trying process. The youth vote movement, moreover, was inescapably weakened by the fact that its membership was inherently transitory. In Washington, however, support for a reduction in the voting age was growing. Perhaps reflecting his own military background, President Eisenhower in 1952 noted that “if a man is old enough to fight he is old enough to vote,” and two years later he formally endorsed the idea of a constitutional amendment to lower the voting age.49

  Eisenhower was joined by figures as diverse as liberal Democratic Senator Hubert Humphrey, Republican Kenneth Keating, and Oregon’s maverick independent, Wayne Morse: both Republicans and Democrats thought they might reap partisan benefits from a lowered voting age. Although advocates of reform invariably pointed to the desirability of harnessing the energies of the young and drawing youth into politics, the primary argument, buttressed by the Korean War and the maintenance of a large cold war peacetime army, remained the link between military service and voting.50

  One of the few public figures to question that link was Congressman Emanuel Celler, a New York Democrat with a high-ranking position on the critical House Judiciary Committee. “To my mind, the draft age and the voting age are as different as chalk is from cheese,” Celler maintained. “The thing called for in a soldier is uncritical obedience, and that is not what you want in a voter.”

  To say that he who is old enough to fight is old enough to vote is to draw an utterly fallacious parallel. No such parallel exists. The ability to choose, to separate promise from performance, to evaluate on the basis of fact, are the prerequisites to good voting. Eighteen to twenty-one are mainly formative years where the youth is racing forward to maturity. His attitudes shift from place to place. These are the years of the greatest uncertainties, a fertile ground for the demagogues. Youth attaches itself to promises, rather than to performance. These are rightfully the years of rebellion rather than reflection. We will be doing a grave injustice to democracy if we grant the vote to those under twenty-one.

  Although polling data indicated that most Americans favored a reduction in the voting age (support rose dramatically between 1939 and 1952), Celler’s views were shared widely enough to thwart any federal action; opposition also came from those who believed that the voting age was a state rather than federal matter. Congressional proponents of a lower voting age, moreover, simply did not regard it as a high-priority item.51

  All this changed during the war in Vietnam. The unpopularity of the war spawned a widespread draft resistance movement, mass protests by college students, and an alarming radicalization of the young. In the political climate of the mid- and late 1960s, the issue of eighteen-, nineteen-, and twenty-year-olds voting acquired an unprecedented urgency; indeed, their lack of enfranchisement served, rhetorically at least, to underscore the absence of democratic support for the war and to legitimize resistance to the draft. As a result, numerous states began to reconsider the voting age, while support for a federal constitutional amendment became increasingly widespread, both among Republicans, including conservative Senator Barry Goldwater and President Nixon, and among liberal antiwar Democrats who believed that they would attract a majori
ty of the youth vote. Meanwhile, formal lobbying organizations and pressure groups appeared, including Let Us Vote (LUV ) and the Youth Franchise Coalition, an umbrella group backed by a unique coalition of youth groups, liberal Democratic activists, the NAACP, church organizations, the National Student Association, the United Auto Workers, and some Republicans. The New York Times endorsed an age reduction on the grounds that “young people . . . are far better prepared educationally for the voting privilege than the bulk of the nation’s voters have been through much of its history.”52

  The denouement of the drama was a tribute to the arcane workings of Congress and the intricacies of federalism. In the spring of 1970, with little advance notice, Senators Edward Kennedy, Warren Magnuson, and Majority Leader Mike Mansfield added a proposal for reducing the voting age, in all elections, to the amendments being prepared to the Voting Rights Act. Contrary to widely held views, Kennedy and Mansfield, backed by some constitutional scholars, maintained that Congress alone could change the voting age, that a constitutional amendment was not required. After a heated but brief debate, the Senate approved the measure by a wide, bipartisan margin and included it in its extension of the Voting Rights Act.53