A Constitutional Right to Vote
On November 6, 2001, Illinois Congressman Jesse Jackson, Jr. introduced into the House of Representatives the text of a proposed amendment to the United States Constitution. The goal of the amendment was to inscribe in the constitution an “affirmative” right to vote for all citizens. Section 1 of Jackson’s text (House Joint Resolution 28) declared that:All citizens of the United States who are eighteen years of age or older shall have the right to vote in any public election held in the jurisdiction in which the citizen resides. The right to vote shall not be denied or abridged by the United States, any State, or any other public or private person or entity, except that the United States or any State may establish regulations narrowly tailored to produce efficient and honest elections.107
Jackson was inspired, or driven, to draft the amendment by the electoral crisis of 2000, in particular the Supreme Court majority’s insistence that the Florida recount be stopped and that “the individual citizen has no federal constitutional right to vote for electors for the President of the United States.” “If every American had had an individual constitutional right to vote,” Jackson maintained, “every vote would have had to be counted.” But Jackson had more in mind than simply plugging up a hole in the Constitution or making sure that votes got counted—however important those goals might be. He envisioned his amendment as a means of overcoming the discriminatory legacy of states’ rights as well as the confusion and inequality spawned by fifty different sets of election laws and “13,000 election administrations.” He also believed that voting was a “human right” and that enshrining human rights in the Constitution would strengthen democratic values and political reform throughout the nation.108
Jackson’s proposal—and, more broadly, the idea of adding the right to vote to the federal Constitution—struck a resonant chord in the post-2000, and post-Bush v. Gore, environment. When Jackson first introduced the amendment in the 107th Congress, however, it had no co-sponsors, but he re-introduced it during each subsequent Congress, steadily gaining support. By 2003, there were forty-five co-sponsors; in 2005, fifty-five. Meanwhile, outside of Congress, scholars and voting rights groups (notably the Center for Voting and Democracy) had also begun to debate the merits of a constitutional amendment as a necessary response to the decision in Bush v. Gore. A proposed amendment was a central concern of a 2003 national conference that included representatives from nearly all voting rights organizations in the nation. That same year, influential Washington Post columnist David Broder endorsed a narrower variant of an amendment that would guarantee all American citizens the right to vote for presidential electors.109
Advocates of a “right to vote” amendment believed strongly that shoring up the Constitution could help prevent a recurrence of the legal chaos of 2000 and could certainly prevent the even-greater chaos that would ensue if a state legislature decided to hijack a presidential election by ignoring the popular vote, as almost happened in Florida in 2000. But the case for an amendment did not stop there. Most of the politicians, scholars, and activists who favored an amendment were also convinced that the presence of a right to vote in the Constitution would have a positive, democratic influence on the resolution of a host of specific issues—including the enfranchisement of ex-felons, the utilization of provisional ballots, photo-ID requirements, and even the choice of voting machines. If voting became a clear-cut, affirmative constitutional right, it would be all the more difficult for states or election officials to take steps that would burden that right or impede its exercise. A constitutional right, moreover, would be permanent, carrying weight in future, unforeseen battles, as well as current skirmishes.110
The notion that the United States Constitution ought to include a “right to vote” sounded, on the surface at least, unobjectionable, even patriotic: after all, the constitutions of the vast majority of democratic nations did contain such a right, and fragmentary data suggested that most Americans believed that a right to vote was already in the Constitution. (The American-sponsored Iraqi constitution of 2005 included a right to vote.) Nonetheless, the idea was not greeted with universal—or even widespread—approbation among the nation’s political elites. Republicans were silent on the issue, and no Republican members of Congress agreed to co-sponsor Jackson’s amendment, despite his insistence that human rights were nonpartisan. Many Democrats were also wary. Some argued that an amendment was unnecessary, that there was already an implicit right to vote in the Constitution; others worried that a drive for an amendment could jeopardize renewal of the Voting Rights Act; still others, fearful of Republican initiatives on issues such as gay marriage, wanted to eschew constitutional amendments altogether. In 2004, the Democratic Party declined to endorse a right-to-vote amendment as part of its national platform, although Howard Dean, the party chairman, did embrace the idea a year later.111
Not surprisingly, then, Congressman Jackson’s amendment languished in Congress. In 2007, it had fifty-one co-sponsors, including all of the members of the Congressional Black Caucus. But no companion resolution was ever introduced in the Senate, and, year after year, Jackson’s amendment was referred to a committee or subcommittee, where it was buried with little fanfare. Between 2001 and 2008, the House of Representatives as a whole never debated or voted on the “amendment to the Constitution of the United States regarding the right to vote.”112
November 2008
The presidential election of 2008 ended more punctually than its predecessors had in 2000 and 2004. Shortly after 11:00 pm eastern time on November 4, only minutes after the polls had closed on the West Coast, news anchors at all of the television networks announced an outcome that had seemed increasingly likely in the course of the evening—and in the weeks leading up to the election: Senator Barack Obama had been elected to the presidency. Although election night had little suspense, it did not lack for drama. The Democratic Party, seemingly on the ropes after the 2004 election, had captured the presidency and gained strong majorities in Congress. More dramatic still: an African-American family was moving into the White House.
Obama’s victory was, of course, an outgrowth of the enlargement of voting rights, the realization of a possibility created by the transformative developments of the 1960s. A half century earlier, not only would the elevation of an African American to the nation’s highest office have been unimaginable, but millions of the men and women who ardently supported Obama would not have been permitted to cast ballots. This was true not only of African Americans in the South but also of the nation’s youngest voters (those under twenty-one), as well as many non-English-speaking immigrants. Notably, a core dimension of Obama’s campaign strategy was to mobilize those formerly disfranchised constituencies and help them overcome procedural obstacles to registration and voting.
Little wonder, then, that African Americans and Hispanics, as well as voting rights activists and the young, found ample cause for celebration in Obama’s election. The victory of the Illinois senator stood as a symbolic capstone to a long struggle for inclusion; it also salved the lingering wounds from the stinging legal/electoral defeat of 2000 and from eight years of an administration that often seemed unwelcoming to many African Americans as well as other less-advantaged Americans. That the nation stood at a grim and precarious moment in its history—fighting two wars abroad and sinking into economic depression at home—only slightly dampened the enthusiasm.
Indeed, to the supporters of the voting rights and prodemocracy organizations that had been promoting a vision of broad political inclusion, heightened participation, and structural reform—a vision that had been shunted aside in 2001-2002—the moment seemed auspicious. The incoming president surely understood their goals, would benefit politically from promoting their cause(s), and seemed likely to appoint sympathizers to key positions in government. The Voting Rights Act was reauthorized until 2031 (although the Supreme Court had not yet spoken), and an ingenious strategy for eliminating the Electoral College was making headway in t
he states.113 Electoral advances for the Democrats in some states seemed likely to slow the drive for photo-ID requirements, and a sudden, postelection surge of interest in universal voter registration systems offered the possibility of increasing turnout and toning down the warfare over “fraud” and “suppression.” The historical pendulum, once again, seemed poised to swing.114
Conclusion: The Project of Democracy
THE STORY TOLD IN THESE PAGES IS, in part, a happy one, a chronicle of progress. As the first decade of the twenty-first century comes to a close, nearly all adult citizens of the United States are legally entitled to vote. What once was a long list of restrictions on the franchise has been whittled down to a small set of constraints. Economic, gender-based, and racial qualifications have been abolished; literacy tests are gone, if not forgotten; residency requirements have been reduced to a matter of weeks; the age of political maturity has been lowered; and the burden of registration has generally been rendered less onerous. The proportion of the adult population enfranchised is far greater than it was at the nation’s founding or at the end of the nineteenth century. That voting is a right, and not a privilege, is well established in law as well as in popular convictions.
Yet getting here has taken a very long time. The elementary act of voting—of participating in the shaping of our laws and the selection of our lawmakers—was, for many decades, reserved to white, English-speaking literate males, a majority of whom belonged to the respectable classes. It took more than a century for the Constitution to be modified to admit women to the franchise, and it took a century after a constitutional amendment had been passed for most African Americans to be able to cast ballots. As late as 1950, basic political rights were denied to African Americans in the South, as well as significant pockets of voters elsewhere, including men and women who were not literate in English in New York, Native Americans in Utah, many Hispanics in Texas and California, and the recently relocated almost everywhere.
That it took so long for universal suffrage to be achieved reflects elements of our history that fit uneasily into the official portrait of the United States as the standard-bearer of democracy and representative government. One such element—as noted in the previous chapter—is that an affirmative right to vote has never been formally enshrined in our nation’s constitutional order. At the country’s birth, there were few believers in universal suffrage, even for males: the Bill of Rights guaranteed Americans freedom of speech and the right to bear arms, but it did not guarantee the right to participate in elections. Not until 1868, with the passage of the Fourteenth Amendment, did the phrase “the right to vote” even appear in the federal Constitution. State constitutions often did make voting an affirmative right, but not for all residents, and the guarantees afforded by state constitutions were highly variable and subject to revision.
In addition, large and influential sectors of the population have frequently opposed democratization and the extension of political rights to all Americans. They did so both to defend their own interests and because their beliefs and prejudices led them to view others as something less than responsible or worthy citizens. Most men did not want to enfranchise women until the twentieth century; many whites did not want to enfranchise blacks or other racial minorities in their own states; the native-born often were resistant to granting suffrage to immigrants; the wealthy at times sought to deny political citizenship to the poor; established community residents preferred to fence out new arrivals. There is nothing peculiarly American or particularly surprising about these patterns: those who possess political power are commonly reluctant to share it, and they have easily developed or embraced ideas that justify and legitimize that reluctance.
It took powerful forces, as well as decades of conflict and change, to overcome resistance to a broad franchise. Two of the largest social movements in American history were devoted to achieving suffrage for women and for African Americans; smaller, less celebrated campaigns of agitation were mounted by militiamen in the early nineteenth century, by workers in Rhode Island, by Asians, Native Americans, and young people in the twentieth century. The eventual success of these movements was made possible by the dynamics of party competition, by economic changes that spawned new patterns of labor force participation (e.g., among women), and by surges of urbanization that lessened the isolation and heightened the visibility of some excluded groups (e.g., blacks and Native Americans). The expansion of suffrage also depended heavily on ideological shifts, on the spread of democratic values in the first half of the nineteenth century, and on a renewed commitment to them in the mid-twentieth. The expansion depended too on war: the most prominent peaks in the history of the franchise in the United States were the Revolutionary War, the Civil War, World Wars I and II, and the first decades of the cold war. Each of these conflicts contributed significantly to the broadening of the right to vote.
Powerful as the forces promoting democratization may have been, their progress was not inexorable and the outcome was far from certain. From the perspective of the early twenty-first century, it is all too easy to invest the triumph of universal suffrage with an aura of inevitability, but the contested history suggests otherwise. Contingencies of timing and politics dot the chronological landscape: had New York and Massachusetts waited until 1830 or 1840 before removing property qualifications, much of the Northeast might have ended up embroiled in a large version of the Dorr War; had Radical Republicans not successfully pressed for the Fourteenth and Fifteenth Amendments (the latter passed during the final days of a session of Congress), the twentieth-century struggle for civil rights might have been far more arduous; were it not for the war in Vietnam, the voting age still might be twenty-one. The interaction of underlying processes with critical events that had independent causes shaped the contours of suffrage history; there was little that was predestined about the timing or consequences of those interactions.
The lack of inevitability—despite de Tocqueville’s “invariable rule of social behavior”—also is suggested by the reversals of direction that characterize the history. Not only was there a prolonged period when the franchise on the whole was tightened rather than expanded, but there were numerous occasions on which particular groups lost political rights that they once had possessed: women in New Jersey in the early nineteenth century; blacks in the mid-Atlantic states before 1860 and in the South after 1890; naturalized Irish immigrants during the Know-Nothing period; aliens in some states in the late nineteenth century; men and women who were on public relief in Maine in the 1930s; prison inmates in Massachusetts in 2000; and countless citizens who suddenly found themselves confronted with new residency requirements or registration rules. To be sure, nearly all of these limits on the franchise were eventually removed, but a path so long and circuitous suggests contingency and conflict rather than a clear and sure destination.
The evolution of suffrage in the United States is a story with many parallels in the histories of other nations. The point is an important one, cutting against longstanding claims of “American exceptionalism”: nearly all of the key ingredients in the story told here surfaced elsewhere as well. Property and tax qualifications were commonplace in nineteenth-century Europe and parts of Latin America; in some nations, such as Hungary and Uruguay, class-based restrictions were so finely tuned that members of specific occupations were prohibited from voting. Literacy tests were deployed to disfranchise peasants in Italy; the imposition of a literacy test in Brazil in 1881 sharply reduced the size of the electorate; Chile’s literacy requirement remained in force until 1970 (a bit longer than New York’s). Similarly, racial barriers were erected in several Canadian provinces, while both Australia and New Zealand refused, for many decades, to fully enfranchise their aboriginal populations. Poor relief recipients were disfranchised not only in parts of the United States but in England and Japan. Lengthy residency requirements aimed primarily at mobile workers were common, and detailed registration rules (in England, after 1885, e.g.) kept countless individuals
from the polls. Like the United States, European nations were long resistant to enfranchising the foreign-born, although such resistance was most often expressed in the erection of high barriers to citizenship. Not surprisingly, conflicts over districting and apportionment (e.g., Britain’s “rotten boroughs”) also have been widespread.1
The dynamics of change too have been transnational. Across the world, grassroots movements (often tied to labor unions) pressed for inclusion in the polity; party competition cracked numerous exclusionary walls; and broad-gauged ideological shifts made suffrage restriction less and less defensible. Both Bismarck and Disraeli in the late 1860s—much like the Republicans who acted at almost exactly the same time—expanded the franchise to strengthen the state and their own political factions. Similarly, war served as a stimulus to democratization in many nations. The enfranchisement of soldiers, for example, was an issue in Britain in World War I, and the dynamics of wartime mobilization contributed to expansions of suffrage in Belgium, parts of Canada, and Italy (where the Libyan campaign, in 1912, led to the enfranchisement of soldiers and veterans who did not meet the normal age requirement). The two world wars advanced the cause of women’s suffrage in diverse countries, and, in a rather different pattern, military defeat—leading to the imposition of new political regimes—resulted in the broadening of the franchise in Germany and Austria. As was true in the United States, class tensions spawned reversals in the progress of democratization in France, Germany, Italy, and parts of Latin America, while also slowing the progress of women’s suffrage in England (among other places).2
Indeed, the unsteady advance of universal suffrage—with two steps forward followed by one or more steps backward—was hardly unique to the United States. Although France was the first nation to formally adopt a broad (male) franchise, its right to vote contracted several times after brief spells of expansion. In Germany, Austria, and Italy, universal suffrage was implemented during the second decade of the twentieth century but became meaningless with the suspension of political rights under fascism. In much of Latin America too, the experience was not slow, gradual expansion of the franchise; often, as in Peru and Brazil, there were lurches forward and backward, both in the breadth of the formal right to vote and in its exercise.3
The Right to Vote Page 52