voting rights

voting rights, voting rights, in U.S. history and politics, a set of legal and constitutional protections designed to ensure the opportunity to vote in local, state, and federal elections for the vast majority of adult citizens. The right to vote is an essential element of democracy in any country, and the proportion of adult citizens who exercise that right in free, fair, and frequent elections is one measure of how democratic a country is.

For much of U.S. history, the right to vote was restricted or denied, in law or in fact, to the poor, to nonwhites—particularly African Americans—and to women. State legislatures, which retained the power to regulate elections under the Tenth Amendment to the U.S. Constitution, generally limited the franchise to propertied white men during the first several decades of the country’s existence. Almost all African Americans, including (of course) enslaved persons, were legally prohibited from voting until 1865–70, when the adoption of the Reconstruction amendments to the U.S. Constitution—the Thirteenth, Fourteenth, and Fifteenth—abolished slavery; granted citizenship and equal rights to “all persons born or naturalized in the United States”; and prohibited voter discrimination based on “race, color, or previous condition of servitude,” respectively. After a long struggle beginning in the mid-19th century, women finally received the right to vote in all U.S. states in 1920 with the passage of the Nineteenth Amendment, which prohibited voter discrimination based on sex (see women’s suffrage).

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Following the adoption of the Fifteenth Amendment (1870), the Republican-dominated Congress passed a series of laws that criminalized intimidation and racial discrimination against voters, provided for federal supervision of congressional elections in larger cities, and authorized the president to use military force to put down anti-Black violence and to suppress white terrorist organizations, such as the Ku Klux Klan. Under federal protection, emancipated African Americans in the states of the former Confederacy were able to vote, to hold elected office, and to serve on juries for the first time. Nearly all Southern states soon had Republican governments, and hundreds of Black state representatives and 16 Black U.S. representatives and senators were eventually elected.

Congress enacted further legal protections for African Americans in the Civil Rights Act of 1875, which prohibited, among other things, racial discrimination in public accommodations such as railroads, hotels, restaurants, and theatres. Those and other protections were soon ended, however, after the U.S. Supreme Court struck down the Civil Rights Act in the consolidated Civil Rights Cases (1883). In its notoriously crabbed decision, the Court held that, despite the language of its enforcement clause (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”), the Fourteenth Amendment empowered Congress to redress only codified (legally enacted) violations of the civil and legal rights of African Americans, not those that merely reflected the private practices of individuals, organizations, and businesses, however widespread such practices may have been. The Court thus effectively barred Congress from taking action against most forms of racial discrimination and enabled Southern states to maintain white dominance in their societies by ignoring and even encouraging racial discrimination in private settings.

By the time of the Supreme Court’s ruling in the Civil Rights Cases, Northern support for Reconstruction in the South had waned, allowing white Democrats to retake control of all but three Southern states—South Carolina, Florida, and Louisiana—by 1876, often through increased intimidation and violence against Black voters and office holders. The inconclusive results of the presidential election held in that year—which turned on the disputed ballots of electors in the three Southern Republican states and in Oregon—led the campaign of the Republican presidential candidate, Rutherford B. Hayes, to strike a bargain with moderate Southern Democrats: in return for their promise not to block the certification of Hayes’s election in the Democratic-controlled House of Representatives, Hayes pledged to acquiesce in Democratic control of those states and to withdraw all remaining federal troops from the South, thus ending Reconstruction. During the subsequent three decades, Democratic-controlled Southern states passed laws and adopted state-constitutional amendments whose purpose and effect was to disenfranchise African American voters and to impose a rigid system of racial segregation there, known as Jim Crow.

After Reconstruction, the voting rights of African Americans in the South were routinely violated for nearly a century, until passage of comprehensive federal civil rights and voting rights legislation in the mid-1960s. The tactics by which Black persons were denied the opportunity to vote included intimidation, violence, poll taxes, literacy or comprehension tests (which were not applied to illiterate whites), “good character” tests, grandfather clauses (which in their original form restricted voting rights to the male descendants of persons who were eligible to vote prior to 1866 or 1867), whites-only primary elections, and outright fraud committed by white election officials. Poll taxes were eventually made unconstitutional in federal elections by the Twenty-fourth Amendment to the Constitution (1964) and in state and local elections by the Supreme Court in 1966. The practice of applying literacy tests to all and only Black voters was banned by the Civil Rights Act of 1964, and literacy tests in general were suspended for certain jurisdictions under the Voting Rights Act of 1965. The Supreme Court struck down grandfather clauses in 1915 and whites-only primaries in 1944.

The Voting Rights Act—along with the Civil Rights Act, one of the two most important pieces of civil rights legislation in U.S. history—introduced nationwide protections of the right to vote and thereby greatly increased voter registration and voting among Blacks in the South. A key element of the law, Section 5, required that certain jurisdictions (states or political subdivisions of states) obtain prior approval (“preclearance”) of any change to their electoral laws or procedures—generally by demonstrating to a federal court that the change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” Section 4(b) of the Act identified as a “covered jurisdiction” (one to which the preclearance requirement would apply) any state or political subdivision of a state that, as of November 1964, imposed tests or other devices as a condition of registration or of voting and was characterized by voter registration or voter turnout below 50 percent of the voting-age population. The preclearance requirement was effective in preventing jurisdictions with a history of voter discrimination (including nine mostly Southern states) from introducing new electoral restrictions that would have disproportionately reduced voter registration or voting among African Americans.

In 2013, however, the Supreme Court, in Shelby County v. Holder, neutered the preclearance requirement—and thus prevented the federal government from blocking discriminatory state election laws before they were enacted—by striking down Section 4(b), which it declared unconstitutional because, in the Court’s view, it intruded unnecessarily on the covered states’ power to regulate elections and violated the “fundamental principle of equal sovereignty” among the states. The practical effect of the ruling was that formerly covered jurisdictions were now free to enact voting restrictions that disproportionately affected African Americans and other minority groups, and such codified infringements of voting rights could be challenged only after the fact, through lawsuits alleging violations of constitutional rights or of antidiscrimination and voting-rights laws, including the Voting Rights Act itself.

Soon after the Shelby County decision was handed down, several formerly covered states announced or implemented new electoral restrictions and procedures that had been (or likely would have been) blocked through the preclearance requirement. In the first five years after the decision, at least 23 states—far more than the number of covered jurisdictions under the Voting Rights Act—introduced electoral laws whose apparent purpose and predictable effect was to make voting more difficult, if not impossible, for African Americans and other minority groups. Those measures—some of which were eventually struck down in the courts—included voter ID laws; onerous restrictions on voter registration; the closure or relocation of polling stations that had served predominantly minority voters, forcing them to travel long distances or to wait in long lines to cast their ballots; the elimination or reduction of early voting periods; burdensome requirements for obtaining or submitting absentee ballots; restrictions or outright bans on voter registration drives; the elimination of same-day voter registration; and the permanent disenfranchisement of convicted felons. Other potentially illegal tactics included large-scale purges of voter rolls, the removal of ballot boxes for hand delivering absentee ballots, and calculated legal challenges by a political party to the right to vote of persons who were unlikely to support that party’s candidate or agenda. Since Shelby County, most such measures have been introduced in Republican-controlled states and have been aimed at African American and Latinx voters or at Democrats generally, in view of the fact that members of racial minorities tend to support Democratic policies and to vote more often for Democratic candidates.

During the 2020 presidential campaign, which coincided with the onset and spread of the deadly COVID-19 pandemic in the United States, governors and election officials in several states postponed primary elections and changed election procedures to enable voters to minimize or avoid their potential exposure, in voting lines or polling stations, to the virus that causes COVID-19 (SARS-CoV-2). Such measures were challenged in court by Republicans on the grounds that they usurped the constitutional authority of state legislatures or invited voter fraud. None of the suits, however, presented any serious evidence of fraud, and the vast majority of the challenges were eventually dismissed.

In the first few months after the election, in which the Democratic challenger, Joe Biden, defeated the Republican incumbent, Donald Trump, Republicans in state legislatures across the country introduced more than 350 bills designed to roll back pandemic-related changes to election procedures and to further restrict voting access in ways that would disproportionately affect minorities, young people, and other Democratic-leaning constituencies. Sponsors of the new restrictions defended them by repeating Trump’s patently false assertion that Democrats had stolen the presidential election through massive voter fraud. The bills proposed new limits on obtaining or casting absentee ballots, stricter voter ID requirements, additional restrictions on voter registration, limits on absentee-ballot collection and delivery by third parties, reductions in early-voting periods, and legislation that would grant poll watchers greater autonomy and closer access to voters and poll workers, which would increase the likelihood of voter intimidation and election interference at polling stations. Some bills even proposed criminalizing the act of giving food or water to people waiting for hours in long voting lines. Many of the bills also contained provisions designed to give Republican-led state legislatures significant control over election administration, in part by reducing the traditional administrative authorities of the executive branch and of independent state and local election boards. Critics of such measures, several of which were adopted into law, argued that they would enable Republicans to improperly influence the conduct of elections in states that they controlled and even to overturn elections whose outcomes they disliked.

In July 2021, in Brnovich v. Democratic National Committee, the Supreme Court’s conservative majority upheld (6–3) two voting laws in Arizona that predated the 2020 election—one limiting absentee-ballot collection by third parties and another requiring that ballots cast in the wrong precinct be discarded. In so ruling, the Court found that voting laws that disproportionately burden members of racial minority groups do not necessarily violate the VRA, despite the act’s prohibition of any “standard, practice, or procedure…which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” (Section 2).

Another tactic that is sometimes treated as a violation of voting rights is racial or partisan gerrymandering. Although it does not prevent any person from voting or registering to vote, gerrymandering ensures that a targeted minority group or political party will be permanently underrepresented in a state legislature or in Congress relative to its absolute numbers in the state. Racial gerrymandering can be challenged in the federal courts on both legal and constitutional grounds (as a violation of Section 2 of the Voting Rights Act and a breach of the equal protection clause of the Fourteenth Amendment). Partisan gerrymandering, in contrast, cannot be so challenged, owing to the Supreme Court’s ruling in Rucho v. Common Cause (2019), which declared that partisan gerrymandering is a “political question” that is beyond the power of the federal courts to address. See also voter suppression. In October 2022 the Supreme Court heard arguments in Allen v. Milligan, a case in which the state of Alabama challenged a district court’s ruling that the redistricting map drawn by the state legislature following the 2020 census likely constituted a racial gerrymander that diluted the power of the state’s Black population to elect candidates of their choice, in clear violation of Section 2 of the Voting Rights Act. Alabama did not dispute the factual basis of the court’s vote-dilution finding but insisted that the map did not violate Section 2 because it was drawn using race-neutral redistricting criteria. The state also argued that it should not be obliged to redraw the map to include an additional Black-majority district, as the district court had ordered, because doing so would itself be an act of racial discrimination in violation of the Fourteenth and Fifteenth amendments. In June 2023, by a 5–4 vote, the Supreme Court affirmed the district court’s ruling.