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Voting Rights

Further Readings

Voting in a Democracy
The United States is a representative democracy. The efficacy of representative government depends, in large part, on the participation of its citizens. The most effective form of participation granted to the subjects of a representative democracy is voting. Although the right to vote for all members of American society above the age of 18 is a foregone conclusion, this was not thecase at one time. Various laws and practices have served to deny the right tovote to certain members of society. Since its inception the United States has treated the issue of voting rights with caution. The nation gained its independence behind the battle cry of "taxation without representation" which brought the issue to the fore during the Constitutional Convention. Perhaps because voting rights was such a volatile issue for the young nation the founderselected to leave the matter to the states to resolve. The Constitution established two provisions concerning the right to vote: first, it stipulates thatthose who were eligible to vote in the state legislatures were also entitledto vote in elections to the House of Representatives; second, it reserved the right to determine the time and place of elections to Congress. Thus, although the Constitution did not explicitly deny the right to vote to minoritiesand women, neither did it protect the privilege until the ratification of theFifteenth (right to vote for minorities) and Nineteenth (right to vote for women) Amendments.
The Supreme Court has often been an instrument used to rectify social injustices throughout American history. However, in the case of women's rights the Court has not been a positive force. In Minor v. Happersett (1875) theSupreme Court ruled that granting voting rights only to men in a state constitution did not violate the Privileges and Immunities Clause of the FourteenthAmendment. Women were not initially denied the right to vote, however. It became such a common practice that states began to establish laws prohibiting women's suffrage in the late eighteenth century. Building on the momentum provided by the leadership of women such as Abigail Adams (the wife of John Adams), Margaret Brent, Lucretia Mott, Elizabeth Cady Stanton, and Susan B. Anthony, women began to organize a voting rights movement in the nineteenthth century. Their efforts culminated in the ratification of the Nineteenth Amendment.
After the adoption of the Nineteenth Amendment there was little legal resistance to women's suffrage. This does not mean that voting rights for women wasnot met with resistance. In colonial America women were subservient to men inmore ways than political expression. Often men would prohibit their wives from voting long after the right to vote had been constitutionally granted. Thus a substantial portion of the struggle for women's suffrage is not documented by the courts. This was not the case in the voting rights movement for African Americans after the ratification of the Fifteenth Amendment.
State Powers
The lion's share of the legal debate surrounding voting rights in America involved determining the extent to which states had the power to establish voting qualifications. The founders decided to leave the issue of voting qualifications to the discretion of the states; however, the federal government eventually retracted these powers when it became clear that the states would not treat the matter equitably. Even after the ratification of the Fifteenth Amendment in 1870 which prohibited the discrimination of voting rights on the basisof race, the South managed to find ways to suppress African American enfranchisement. One of the most effective strategies employed by the Southern states to perpetuate racial discrimination at the ballot box was the all-white primary. Here, whites managed to exclude African Americans from voting in primaries based on the argument that the Fifteenth Amendment applied only to general elections. The primary, they argued, was a function of a private organization which did not have to justify the inclusion or exclusion of certain people. In fact, the practice was upheld in the courts in 1921 in Newberry v. United States where it was decided that primary elections were the privatefunctions of political parties and therefore did not prohibit African Americans from participating in general elections.
In order to understand the ramifications of this decision it must also be understood that up until the late twentieth century Southern politics was dominated by the Democratic Party. Although the Democratic Party was a strong advocate of civil rights during the 1960s, it was the Republican Party that initiated the movement to abolish slavery, a movement to which the Democratic Partyin the South was not at all sympathetic. The domination of the Democratic machine in Southern politics meant that there was little realistic opportunityfor a candidate who supported equal rights for African Americans to be elected in a general election. The important elections in the South were the primaries.
Discriminatory Practices
The state that fought most vigorously to preserve the white primary was Texas. The state legislature of Texas invited legal objection to the practice whenit adopted a statute in 1923 which explicitly prohibited African Americans from participating in Democratic primary elections. With the help of the NAACP, L.A. Nixon filed suit on the grounds that the statute violated the Fourteenth and Fifteenth Amendments. In Nixon v. Herndon (1927) the Supreme Court supported his claim. However, the issue of whether primary elections werea private affair which justified the use of the white primary in Newberry was not addressed. Nixon was decided on the basis of the Fourteenth Amendment in that the state statute in question had violated Nixon's equalprotection under the law. Thus, in order for Texas to continue the practicethey merely needed to change the wording of the state statute. The state legislators of Texas therefore changed the statute to read that the Democratic party of Texas had the power to determine its own primary voting qualifications. Nixon filed suit again in Nixon v. Condon (1932) challenging the deprivation of his right to vote in primaries arguing that it violated his Fourteenth Amendment rights. The Court ruled that because the state legislature ofTexas was endorsing a discriminatory practice by making the Democratic partyits representative, Nixon's Fourteenth Amendment rights had been violated.
However, as is the case in many societies, discriminatory practices do not godown easily. Proponents of the white primary believed they could still hidebehind the Newberry judgement on the basis that the Democratic Party is a private organization and could prevent African Americans from participating by passing its own resolution apart from the state legislature. This practice was challenged in Grovey v. Townsend (1935) but the Supreme Courtcould find no constitutional violation. This was a major defeat for civil rights advocates. There seemed to be no way to put an end to the white primary until a Louisiana commissioner named Classic was charged with changing the votes in a primary election. In United States v. Classic (1941) Classic disputed the charge on the grounds that the federal government had no power toregulate primary elections. The Court ruled against Classic arguing that theprimary had become an integral part of the election process. This ruling finally cracked the foundation of the white primary by tying the practice to theoverall legitimacy of general elections. Then in the landmark case Smithv. Allwright (1944) the Court formally prohibited the all-white primary.In an 8-1 decision Justice Reed included in his opinion the clarification that voting in primary elections "is a right secured by the Constitution" (Smith). Although this finally closed the door on the all-white primary it by no means put an end to discrimination against voting rights.
Another instrument used to discourage African Americans from voting was the literacy test. Literacy or "understanding" tests were designed "in theory" toensure that those who voted were politically aware. In practice, however, theintent was clearly of a malevolent nature. In Louisiana for example, only African Americans were subjected to "understanding" tests because of a "grandfather clause" in the Louisiana Constitution. The clause stated that those voters who were eligible to vote prior to 1 January 1967 were exempt from havingto meet registration requirements such as understanding tests. In other words, the grandfather clause essentially meant that if your grandfather was whiteyou did not have to take these tests. The nature of the test was subjective;individuals were asked to interpret a section of the United States or Louisiana Constitution and were granted or denied registration on the basis of their response. So rigorous were the standards for passing that in some cases African Americans with professional or graduate degrees were denied registration. Ultimately, in Louisiana v. United States (1965) the constitutionality of these tests were called into question. In a 9-0 ruling Justice Black made a rather blunt observation regarding the design of the "understanding" test. "This is not a test but a trap, sufficient to stop even the most brilliantman on his way to the voting booth" (Louisiana).
Despite rulings such as this the Court's efforts to put an end to discrimination against African American voters were not very effective. Those who wishedto preserve the preponderance of the white voting class in the South had yetother formal and informal means at their disposal. In an effort to enforce the provisions of the Fifteenth Amendment, Congress passed the Voting Rights Act of 1965. The act targeted areas of the country that had a history of discriminatory practices at the voting booths, authorizing federal supervision ofthe voting procedures in states where African American participation was suspiciously low. The constitutionality of the Voting Rights Act was immediatelychallenged in a suit led by South Carolina and supported by a number of otherSouthern states in South Carolina v. Katzenbach (1966). The Court reviewed the case under its original jurisdiction authority because it involvedparties from different states. In an 8-1 decision the Court ruled that the Fifteenth Amendment granted Congress the power to take "appropriate" measures to ensure that voting rights on the basis of race were not abridged. Chief Justice Earl Warren declared that the Voting Rights Act was not inconsistent with the authority granted to Congress in the Constitution.
Courts Try to Strike Back
With the abolition of literacy tests and the power to enforce the Fifteenth Amendment provided by the Voting Rights Act, there seemed to be no other legalrecourse for the denial of suffrage on the basis of race. Unfortunately, this was not the case as proponents of the old political machine now turned to economics to promote their interests. Early in American history voting privileges were reserved for property owners under the presumption that the wealthywould cast more informed votes. This prerequisite eventually gave way to universal suffrage; however, the issue would later resurface in a different formknow as the "poll tax." States used the "poll tax" to improve the quality ofthe voting class presuming that only those genuinely interested in voting would pay for the privilege. In fact the Supreme Court initially upheld this reasoning finding the practice consistent with the Equal Protection Clause of the Fourteenth Amendment in Breedlove v. Suttles (1937).
Although the poll tax, in theory, does not discriminate against any particular group of people, in practice it had a clear impact on African American participation in the South. To redress the unequal impact of the poll tax Congress passed the Twenty-fourth Amendment which banned the tax in federal elections. It was only a matter of time before the practice of levying a poll tax instate elections would be reviewed in the courts. In Harper v. Virginia State Board of Elections (1966) the Court outlawed the practice on the basisof economic discrimination. Justice William O. Douglas explained in his opinion that wealth has nothing to do with whether an individual is capable of casting an intelligent vote.
Another issued related to economic discrimination also came under legal scrutiny in the 1960's. This time, however, the denial of suffrage was not racially motivated. After World War II it became common practice to use property taxes to pay for public services such as education. Some of the decisions on howto use these funds were made at the ballot box. Naturally, those people whoowned property were reluctant to permit non-property owners to voice their opinion on the use of this tax money. Some states thus passed laws designed toprohibit the propertyless from voting on such matters. The constitutionalityof denying non-property owners the right to vote was addressed In Kramer v. Union Free School District (1969). Individuals who did not own propertybut had a vested interest in the community such as the clergy, military personnel, the aged, and adults who lived with their parents (which was Kramer'ssituation) believed they were entitled to express their opinion on the use oflocal property taxes. The Court upheld this view finding that the state didnot have a compelling interest sufficient to deny voting rights on property tax matters.
An issue taken up by the courts indirectly related to voting rights is representation. The point of voting is to allow people the opportunity to have their interests represented in a governing assembly. If the district lines in which one votes were drawn such that a certain group of voters was deliberatelyoutnumbered, exercising the "right to vote" would be a moot point. The election of members of the House of Representatives is based on population. The Constitution granted a number of representatives to each state on the basis of population (originally one representative per 30,000 people.) Congress later passed a law limiting the number of House members to 435. The practice of redistricting has been a difficult matter to resolve in American history if onlyfor the simple reason that the government cannot regulate where people live.For example, if there happens to be a high concentration of African Americansin a certain district the chances are good that a representative sympatheticto the political persuasion of African Americans will be elected. However, because there is no constitutional provision designed to regulate "gerrymandering," or the unfair drawing of district lines, this practice can be easily abused. Although the issue of drawing district lines was left to the states, blatant abuses of the criteria for drawing district lines to favor a certain group have stimulated legal debate.
In Colegrove v. Green (1946) the Court expressed strong reservations about becoming involved in redistricting and reapportionment matters. However,over time it became clear that as much as the Court preferred the issue to be resolved by the states they could not be trusted to do so equitably. In Gomillion v. Lightfoot (1960) a group of African Americans challenged anAlabama statute that redrew district lines to radically improve Lightfoot's prospects for reelection. The Alabama statute had redrawn the district lines of Tuskegee such that all but four or five out of 400 African American voterswere displaced into a different district. The Supreme Court ruled that the statute had essentially denied the right of black voters guaranteed by the Fifteenth Amendment. In subsequent cases such as Baker v. Carr (1962) andWesberry v. Sanders (1964) the Court ultimately resolved that judicialintervention into state political affairs relating to reapportionment and redistricting respectively, was warranted.
The health of a representative democracy is dependent upon the political expression of its subjects. It is difficult to characterize a nation as democratic when over 50 percent of the population is denied the right to vote. Fortunately, Americans have had legal recourse to expand suffrage to the entire adult population. As the above outline of the legal history of voting rights illustrates the right to vote for women and minorities has not come easily.

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