The Right to Vote

by Alexander Keyssar

This created a quandary for the House, particularly for Congressman Celler, now the chair of the Judiciary Committee. Most members of the House were convinced that the legislation was unconstitutional, many were reluctant to enfranchise student protestors, and Celler had vowed to kill the bill. If the House did not accept the entire Senate package, however, the Voting Rights Act extension would either go back to the Senate, where it could be filibustered to death, or to a conference committee, where numerous provisions of the carefully wrought act might be challenged and revised. Unwilling to jeopardize the extension of the Voting Rights Act, Celler and his colleagues reluctantly caved in and supported the age reduction as part of the package. Although he too thought the age reduction clause unconstitutional, President Nixon signed the bill, while urging its speedy testing in the courts.54

  The issue came to the Supreme Court in Oregon v. Mitchell. Citing the equal protection clause, as well as the enforcement clause of the Fourteenth Amendment, four of the justices concluded that Congress did in fact have the right to lower the voting age in all elections. “It is a reasoned judgment,” concluded Justice Douglas, “that those who have such a large ‘stake’ in modern elections as 18-year-olds, whether in times of war or peace, should have political equality.” Four others reached the opposite conclusion, ruling that the age of enfranchisement was up to the states, for both federal and state elections. The balance was tipped by Justice Black, who rejected the equal protection argument but concluded that the Constitution, in article 1, section 4, gave Congress the right to set the voting age in—and only in—federal elections. The upshot of this complex verdict was a voting age of eighteen in federal elections coexisting with an age limit of twenty-one in nearly all states.55

  The prospect of a two-tiered age limit was an administrative and logistical nightmare for state election officials. Voters under age twenty-one would have to be registered and tracked separately; cities and towns would have to either purchase additional voting machines (and set them up in age-segregated booths) or utilize special machines constructed to permit selective blocking of particular electoral contests. The projected costs ran into the millions of dollars, and some states were not sure that the changes could be carried out before the 1972 elections. Compounding the problem was the fact that many states could not possibly alter their own constitutions to adopt a lower state voting age by 1972: doing so often required votes in successive legislatures followed by popular referenda.56

  Faced with this crisis, Congress moved expeditiously to rectify the mess that it had helped to create. A month after the Oregon decision, now-Senator Jennings Randolph introduced a proposal for a constitutional amendment that barred the United States or any state from denying or abridging the right to vote of any citizen aged eighteen or over on account of age. In March 1971, the Senate, with no dissenting votes, approved the amendment. Within a few weeks, the House had done the same, with negative votes cast by only nineteen members, mostly conservative Republicans or southern Democrats. State legislatures then rushed to ratify the amendment. By the end of June, thirty-eight states had done so, and the Twenty-sixth Amendment was law. The ratification process was by far the most rapid in the history of the republic. At a White House ceremony certifying the ratification, President Nixon announced that he believed in “young Americans” who would “infuse into this country some idealism, some courage, some stamina, some high moral strength.”57

  A National Franchise

  By 1975, the nation had witnessed a legal revolution, a revolution far broader in scope than the phrase “the second Reconstruction” might suggest. What occurred in the course of a decade was not only the reenfranchisement of African Americans but the abolition of nearly all remaining limits on the right to vote. Poll taxes, literacy tests, understanding clauses, pauper exclusions, and good character provisions had been swept away. Property and tax requirements for voting in special elections had been all but eliminated; durational residency qualifications had been drastically cut and the definition of residency broadened; the voting age had been lowered to eighteen, and language barriers had been dropped. The total number of new voters added to the electorate cannot be counted with precision, but the figure was surely in excess of twenty million.58

  This revolution also constituted a nationalization of the right to vote. The Voting Rights Acts, coupled with a succession of Supreme Court decisions, effectively brought to a close the era of state control over suffrage. That long era had begun, in the late eighteenth century, when the founding fathers, for pragmatic political reasons, had chosen not to tinker with the laws already in place in the ex-colonies; and state supremacy had remained largely intact, despite the limits imposed by the Fourteenth, Fifteenth, and Nineteenth Amendments. Only in the 1960s and 1970s did the process of nationalization become broad-gauged and sweeping.

  The impulse, and perhaps the will, to nationalize and expand the right to vote stemmed from a unique historical conjuncture, a confluence of forces pressing in the same direction. The international ideological competition of the cold war; the dynamics of military mobilization, accentuated by the war in Vietnam; the presence of a militant grassroots movement, primarily among blacks and later among students; the broad acceptance of formal democratic values that was a legacy of World War II: all of these forces contributed to the impulse to formally democratize the American polity.59 Once set in motion by the civil rights movement, moreover, the process of suffrage reform played out its own internal, if ultimately revolutionary, logic. The political leaders of the 1960s found themselves thinking through the issue of voting rights in a manner unparalleled since Reconstruction. Wittingly or not, they retraced the path traveled by Henry Wilson and his colleagues, journeying from a focus on black enfranchisement to an embrace of universal suffrage.

  But in the 1960s and 1970s, in contrast to the 1860s and 1870s, this intellectual path was traversed at a time when class tensions were easing rather than accelerating, when they were at a historic low rather than a historic high. The New Deal’s politically successful management of economic crisis, followed by extraordinary postwar prosperity and the bipartisan embrace of a politics of growth (rather than distribution) had put to rest many of the late-nineteenth- and early-twentieth-century apprehensions about universal suffrage. In addition, the national government had already asserted its supremacy over the states in numerous legal and political domains.60

  Furthermore, by the 1960s it was abundantly clear to both Congress and the courts that universal suffrage would not be achieved by the decentralized actions of the fifty states, each with its own historical legacy, its own political conflicts, its own minorities, and special issues. If the polity was going to be democratized, it would require action by the national government, in the name of the nation’s publicly professed values. Notably—and reflecting both historical precedents and the step-by-step dynamics of the intellectual and political process under way—the nationalization of suffrage was achieved not by the passage of a single national law but through a series of actions that compelled the states to adjust their laws to match the nation’s democratic self-image and convictions. The piecemeal quality of this indirect approach was reflected in congressional passage of two constitutional amendments and three voting rights acts, as well as earlier civil rights acts.

  The Supreme Court’s views ran remarkably parallel to those of Congress; the two institutions in fact reinforced and prodded one another. Indeed, difficult as it is to discern the precise mechanisms through which political beliefs are mediated into constitutional interpretation, there can be little doubt that the Court’s discovery of the applicability of the equal protection clause to voting rights represented the Court’s own embrace of the internal logic of suffrage reform. If discriminating against blacks was wrong—and it was clearly proscribed by the Fifteenth Amendment—so too was discriminating against the very poor, the propertyless, the mobile, and the Spanish-speaking. The Court’s use of the equal protection clause was, in effect, a means of extending t
he ban on racial bars stated explicitly in the Fifteenth Amendment to other forms of discriminatory disfranchisement not expressly mentioned in the Constitution. The combination of the Court’s rulings and congressional action meant that, despite the absence of a national suffrage law, state voting requirements in 1975 were far more uniform and substantially more democratic than those that existed a decade earlier.

  The symbolic capstone of this legal revolution was provided, once again, by a change in the governmental structure of the nation’s capital. Since 1874, after a brief experiment with democratic rule, the District of Columbia had been governed by a federally appointed commission. During the following century, and particularly after World War II, residents of Washington, many of them African-American, periodically had demanded home rule for the city and representation in Congress. Their efforts invariably had been blocked—by, among others, Mississippi Senator Theodore Bilbo, who chaired the Senate Committee on the District, and later, South Carolina Representative John McMillan, the chair of the House Committee on the District of Columbia. By the late 1960s, however, what one Washington resident called “the absurdity that the capital of the leading nation of the free world is itself not free” had become too glaring to overlook, particularly given the city’s African-American majority. In 1967, President Johnson, an advocate of home rule, succeeded in pushing through Congress a compromise reorganization plan that created an elected city council. Three years later, the district was permitted to elect a nonvoting representative to Congress. In 1973, after McMillan had been succeeded by an African-American chair of the key House committee, Congress passed the District of Columbia Self-Government and Governmental Reorganization Act, which gave the city an elected mayor as well as a city council. That act finally brought self-government to the “800,000 Americans—more people than in ten states of the Union” who had been “second-class citizens.” A measure of democracy had even come to Washington.61

  A measure of democracy—but not all political rights: residents of the capital remained unsuccessful in their attempts to gain voting representation in Congress. (They had been granted electoral votes in presidential elections in 1961, thanks to the Twenty-third Amendment to the Constitution.) In 1978, a constitutional amendment was approved by Congress that would have granted Washington two senators as well as voting representatives in the House. But conservatives around the nation (and particularly in the South) opposed the measure; when the seven-year window for ratification closed in 1985, the D.C. Voting Rights Amendment had been endorsed by only sixteen of the needed thirty-eight states. Walter Fauntroy, the city’s nonvoting representative to Congress, blamed the failure on the District being “too urban, too liberal, too Democratic and too black.” In the 1980s and 1990s, some of the District’s political leaders promoted an alternative idea: transforming Washington into a state (which would have been less constitutionally anomalous than remaining a “district” with congressional representation), but this plan lacked broad support in Congress. In 2000, the Supreme Court dealt a further blow to the District’s hopes by ruling that its residents did not have a constitutional right to vote for representatives to Congress. Seven years later, a conservative filibuster in the Senate even blocked a plan to give the District one voting seat in the House, politically balanced by the award of an additional seat to the conservative state of Utah. The men and women who lived closest to the halls of Congress consequently remained unable to select any of its voting members.62

  The Value of the Vote

  And history has seen a continuing expansion of the scope of the right of suffrage in this country. The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.

  —CHIEF JUSTICE EARL WARREN,

  MAJORITY OPINION, Reynolds v. Sims (1964)

  The achievement of a broad national franchise with few restrictions did not bring an end to controversies over voting. Indeed, the legal transformation wrought in the 1960s segued—logically and then chronologically—into a prolonged series of conflicts over a related yet distinct issue: the value of each individual’s vote. This critical, if perhaps unforeseen, development occurred for two reasons. First, the process of thinking about and redefining the breadth of the franchise led lawmakers, judges, and civilians, almost inescapably, to examine the institutional structures—such as the size of legislative districts—in which the act of voting was embedded. Second, conservatives, particularly in the South, repeatedly attempted to reduce the impact of an enlarged franchise by altering these structures, by changing the rules of the political game. The conflict over democratization thus endured, although the legal terrain shifted—from the right to vote itself to apportionment, districting, and the structure of representation.

  Into the Thicket: One Person, One Vote

  The stage was set for these conflicts by a series of Supreme Court rulings in the early 1960s, before passage of the Voting Rights Act. In Baker v. Carr, decided in 1962, the Court determined that the apportionment of state legislative seats in Tennessee could be challenged in federal courts under the equal protection clause of the Fourteenth Amendment. The ruling was a narrow, technical one (focused on whether inequalities of apportionment were a “justiciable” constitutional issue), but its implications were so potentially far-reaching that it provoked a lengthy and powerful dissent from Justice Felix Frankfurter, joined by Justice Harlan. Pointing to a historical record demonstrating that most state legislatures (as well as the federal government) had long been built on districts with unequal populations, Frankfurter insisted that the issue belonged to a “class of political controversy which, by the nature of its subject, is unfit for federal judicial action.” Harlan maintained that he could “find nothing in the Equal Protection Clause or elsewhere in the Federal Constitution which expressly or impliedly supports the view that state legislatures must be so structured as to reflect with approximate equality the voice of every voter.” Such a proposition “strikes deep into the heart of our federal system.” The majority disagreed, and in so doing, plunged into what Frankfurter had called the “political thicket” of apportionment issues, a terrain that the courts had never before entered.63

  A year later, in Gray v. Sanders, the Court built on Baker v. Carr and struck down Georgia’s “county unit” primary system that weighted “rural votes more heavily than urban votes and weighted some small rural counties heavier than other larger rural counties.” According to the Court, this violated not only the equal protection clause but the very notion of equality undergirding American democracy. In another of his ringing phrases, Justice Douglas—undeterred by the historical record that Frankfurter had laid out in great detail—maintained that “the conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.” In 1964, the Court again took aim at Georgia, because the populations of its congressional districts were not even roughly similar: this, the Court ruled, ran afoul of article 1, section 2 of the Constitution (which provided that representatives should be chosen “by the people”). “To say that a vote is worth more in one district than in another would . . . run counter to our fundamental ideas of democratic government.”64

  Later that same year, in Reynolds v. Sims, the Court further extended the power of the federal government over state electoral arrangements by striking down Alabama’s districting system for its state legislature because it permitted counties with only 25 percent of the state’s population to elect a majority of the representatives to both legislative branches. (Only Justice Harlan dissented; Frankfurter had retired.) Citing the equal protection clause once again, Chief Justice Warren, for the Court, declared that �
�legislators represent people, not trees or acres” and that the “right to vote” of those living in underrepresented areas “is simply not the same right to vote as that of those living in a favored part of the State.” Confronting an obvious counterargument head-on, Warren insisted that unequal state apportionment schemes could not be analogized to the United States Senate or the electoral college: those arose “from unique historical circumstances,” including the “compromise and concession indispensable to the establishment of our federal republic.” The states that formed the union once had been “sovereign entities,” which was not true of counties, cities, or other “political subdivisions.” It was legitimate therefore for each state to have two senators, regardless of its population, but it was not legitimate for state legislatures to mirror that structure.65

  In key respects, the arguments and the history leading to the Court’s embrace of one person, one vote closely paralleled its repudiation of economic qualifications for voting in Harper v. Virginia. Justices Frankfurter and Harlan surely were correct that neither the founding fathers nor the authors of the Fourteenth Amendment believed that an arithmetic equality of votes had to underlie all schemes of representation. The justices were also on solid ground in claiming that it was not irrational for states to factor in other considerations (such as geography or balancing rural versus urban interests) in devising systems of representation, and that these were essentially political matters or questions of political philosophy that belonged more appropriately in the hands of elected legislators than the judiciary. Yet Douglas and Warren too had a point. Democracy indeed could be undone or circumvented through districting mechanisms as well as through disfranchisement, and the historical record strongly suggested that those who wielded disproportionate power in state governments were unlikely to surrender that power voluntarily. It was unrealistic to expect that an undemocratic distribution of power could be reformed democratically. Consequently, if the judiciary did not act, if it failed to establish a yardstick for assessing the democratic content of electoral structures, the door would be open to a wide range of abuses.