Civic Register
| 5.7.20

What are Voting Rights?

How do you feel about voting rights?

BACKGROUND

Responsibility for elections and protecting voting rights in the U.S. is shared between the federal government and state governments, with each responsible for administering different aspects of campaigns and elections. That has led to the enactment of a wide variety of election systems across the states, and controversy over legal challenges and proposed legislation.


OVERVIEW

The Constitution sets the criteria for congressional elections to the House & Senate in Article I, and does the same for presidential elections in Article II. Several of the subsequent amendments to the Constitution also deal with elections & voting rights:

  • The 12th Amendment modified the Electoral College process that selects the president and vice president.
  • The 14th Amendment specified how seats are apportioned in the federal House of Representatives, and it contains the Equal Protection Clause ― which is the basis for many voting rights claims.
  • The 15th Amendment prohibited race-based voter disenfranchisement.
  • The 19th Amendment prohibited sex-based voter disenfranchisement.
  • The 23rd Amendment provided the District of Columbia with votes in the Electoral College.
  • The 24th Amendment prohibited poll taxes in federal elections.
  • The 26th Amendment granted 18-year olds voting rights.

The federal government is responsible for enforcing campaign finance laws through the Federal Election Commission (FEC) and Dept. of Justice (DOJ); voting rights through the DOJ; and for addressing qualifications and contested elections, which falls to the House & Senate.

State governments have broad responsibility for administering elections, including areas such as managing voting, determining voting methods & acquiring equipment, determining eligibility & identification requirements for voters (in compliance with federal law), and securing election systems. State governments receive a degree of assistance in carrying out those responsibilities from certain federal agencies:

  • State governments are responsible for election administration. They receive assistance from the federal Election Assistance Commission (EAC) & the DOJ for things such as facilitating ballot access for Americans overseas or receiving grants to upgrade voting equipment.
  • State governments are responsible for election security. They receive assistance from the DOJ & the Dept. of Homeland Security (DHS) in responding to threats to elections that are beyond their capability to protect against.
  • State legislatures are responsible for redistricting. They receive assistance from the Dept. of Commerce, which provides Census data used in the redistricting process, and the DOJ which enforces protections against voter discrimination.


WHAT IS THE VOTING RIGHTS ACT?

The Voting Rights Act of 1965 was enacted to guarantee the rights of racial minority groups, particularly black Americans. Despite the ratification of the 15th Amendment in 1870 prohibiting race-based voter discrimination, many southern states implemented laws to systematically disenfranchise blacks starting in 1890 in the post-Reconstruction South. These laws took on several forms:

  • Poll taxes required voters to pay a tax (usually several dollars) in order to cast their ballot.
  • Literacy tests required voters to prove their ability to read, understand, or interpret a document such as the state constitution in order to vote.
  • Grandfather clauses exempted voters from poll taxes and/or literacy tests if their father or grandfather had been on voter registration lists during the Reconstruction era.
  • Old soldier clauses provided individuals who served in the Civil War or other specified wars an exemption from poll taxes & literacy tests, or provided an alternative to the test.

The Jim Crow era saw the enactment of laws requiring the segregation of blacks and whites in society, which worked to further diminish voter registration & electoral participation by blacks in the South. When grandfather clauses were ruled unconstitutional in 1915, states turned to “white primary” elections which barred blacks from participating in Democratic Party primary elections. Those primaries essentially functioned as general elections because of the Republican Party’s decline in the South after Reconstruction as blacks’ voter participation was impeded.

This continued despite the outgrowth of the civil rights movement in the mid-20th Century and the enactment of laws like the Civil Rights Act of 1957 (after the longest filibuster in the Senate’s history) that were intended to eliminate voter discrimination. The turning point came at the Selma to Montgomery march in Alabama in 1965, which was a response to the violent and sometimes deadly resistance black voter registration efforts in the South had been met with. After President Lyndon B. Johnson mobilized the National Guard to protect the marchers from violent counter-protests, he delivered a televised speech to announce he would send Congress a bill to prohibit voter disenfranchisement.

The Voting Rights Act of 1965 was LBJ’s second major civil rights bill, following the Civil Rights Act of 1964, and the VRA was intended to enforce the 15th Amendment. It allowed for direct federal efforts to increase black voter registration in areas where it was suppressed and prohibited the use of practices like poll taxes and literacy tests by states in an effort to restrict voting. It also required areas with historic voter discrimination to seek the DOJ’s preclearance of proposed new voting laws before they could be implemented to ensure they wouldn’t disenfranchise. Black voter turnout in the South increased in the years that followed and caught up with black voter registration in the rest of the U.S. by the 1992 presidential election.

The preclearance provisions of the VRA were reauthorized by Congress in 2006, but they were partially struck down by the Supreme Court in a 2013 decision known as Shelby County, Alabama v. Holder. The Court found that the formula used in the VRA ― which was based on voting patterns from 1964, 1968, and 1972 ― was outdated and no longer “grounded in current conditions”, infringing on states’ rights as a result. The Supreme Court left the preclearance provisions intact, but dormant, pending the adoption of a new formula by Congress which hasn’t occurred as of 2020.


WHAT IS VOTER FRAUD?

Voter fraud is an illegal action committed by a voter in the course of an election, such as duplicate voting, false registration, fraudulent use of absentee ballots, ineligible voting, and voter impersonation. Similar behavior is referred to as election fraud when committed by candidates, party officials, or election workers, which can include providing improper assistance at polling places or vote buying. When fraud is detected by election administrators or the courts it can cause the results of the election to be overturned and a new election scheduled.

Voter fraud and election fraud are relatively rare. The Heritage Foundation has compiled a database that catalogs 1,259 instances of proven fraud dating back to 1982, although the database is not comprehensive or exhaustive. Since that time there have been hundreds of millions of votes cast in elections at all levels of government, so instances of fraud perpetrated by voters, candidates or their campaigns, and election officials represent a very small proportion.


WHAT ARE SOME PROPOSALS THAT AIM TO PROTECT THE INTEGRITY OF ELECTIONS? 

Cybersecurity: States are eligible to receive federal grants to augment their own election security spending that are intended to prevent attempts to hack into voting machines at polling places and tabulation machines that count votes.

Paper ballots: While many states already provide voters with paper, hand-marked ballots to use, those that rely on paperless, electronic voting machines are moving to integrate paper ballots as backups before eventually replacing the paperless machines altogether.

Voter ID: A more controversial proposal to protect the integrity of elections are voter identification (ID) laws that have been adopted by many states. According to the National Conference of State Legislatures, 35 states have voter ID laws in effect as of February 2020 and a 36th (North Carolina) has enacted a voter ID, but it is currently blocked by a temporary injunction from a federal judge. 

These state voter ID laws can broken down in two ways: states which require a photo ID versus states which don’t; and those with strict or non-strict responses to voters who arrive at the polls without acceptable ID which can be contrasted as follows:

  • States with strict voter ID laws allow voters without an acceptable ID to cast a provisional ballot and require them to return to the election office within a few days of Election Day with proper ID to have their vote counted. If the voter doesn’t return, the provisional ballot isn’t counted.
  • States with non-strict voter ID laws allow voters without an acceptable ID to vote without further action on the voters’ part. For instance, poll workers may vouch for their identity, or the voter may be required to sign a sworn affidavit to verify their identity. State election officials will then follow up to verify their identity by using a signature check or other means and confirm that they were eligible to vote.

Supporters of voter ID laws contend that they increase public confidence in elections through the prevention of in-person forms of voter fraud. Detractors argue that they place an undue burden on eligible voters to exercise their right to vote and that in-person voter fraud is rare.


WHAT ARE SOME PROPOSALS THAT AIM TO EXPAND VOTING ACCESS? 

Vote-by-mail: These proposals essentially provide absentee ballots for all voters. Four states (Oregon, Washington, Colorado, and Hawaii) use vote-by-mail for all elections, and 17 other states use it for some elections or allow it to be adopted by counties. 

Advocates of vote-by-mail argue that it increases turnout, reduces election costs from not having to pay staffers at polling places, and gives voters time to study the issues at home before filling out their ballot and mailing it or turning it in at a designated dropbox. Detractors say that it diminishes the civic experience of going to a local polling station with other voters, increases printing costs for elections, can lead to ballots getting lost in the mail, and can expose voters to coercion from people at home or lead to ballot tampering.

No-excuse absentee ballots: All states allow votes access to absentee ballots that can be sent through the mail, but 33 states plus the District of Columbia don’t require voters to provide an excuse for requesting an absentee ballot.

Early voting: A total of 39 states allow voters to cast a ballot in person at their polling place in advance of Election Day without any excuse required, which expands access for voters whose schedule on Election Day may conflict with their ability to get to the polls. The timing of early voting varies from state-to-state.

Same-day registration: A total of 21 states plus the District of Columbia allow voters to register to vote at the polls before casting their ballot on Election Day. All of these states require voters to show proof of residency, some require a state-issued ID with a photo, others permit photo-less ID, and still others let voters show a paycheck or utility bill to demonstrate their residency.

Automatic voter registration: Some states have policies that automatically register residents to vote in the course of completing transactions at the Dept. of Motor Vehicles (DMV), or through other government agencies. Of the 18 states identified by the National Conference of State Legislatures as having AVR in June 2019, some allow voters to opt-in or opt-out at the time of transaction, while others send a postcard to residents afterwards that has to be returned in order to opt out. Advocates of AVR say it increases voter participation by making it easy to register. Detractors argue that the government shouldn’t infringe on citizens’ First Amendment rights to not participate in voter registration, particularly when the opt out is provided through the mail after the transaction.

There are also several other proposals to increase voter participation, such as lowering the voting age to 16 or restoring the voter eligibility of convicted felons upon their release from prison. Another proposal that aims to expand voters’ ability to vote for candidates from outside of the two major parties is the elimination of straight ticket voting, which allows voters to choose a party’s entire slate of candidates with a single selection on the ballot in the seven states which utilize it.


WHAT IS H.R. 1: FOR THE PEOPLE ACT?

Introduced by House Democrats in the 116th Congress, the For the People Act is a comprehensive bill to reform election laws and campaign finance rules.

It would require states to automatically register voters, restore released felons’ voting rights, require at least 15 days of early voting, allow voters to vote by mail, prohibit voter purging, require states to use independent redistricting, and expand resources for state election security. Additionally, it would expand public campaign financing, increase disclosures for political ads & donations, and reform ethics rules for members of Congress, the executive branch, and the judicial branch.

The bill was passed by the House on a strictly party-line vote. Republicans opposed many of its provisions, arguing that they infringe on states’ responsibilities for election administration under the Constitution. Senate Majority Leader Mitch McConnell (R-KY) has vowed to block the legislation from consideration in the GOP-controlled Senate.


COVID-19 UPDATE

Amid the coronavirus (COVID-19) pandemic, numerous states have delayed primary elections and taken steps to reduce the need for voters to go to physical polling places, such as through the provision of vote-by-mail.


RESOURCES


— Eric Revell

(Photo Credit: iStock.com / Joaquin Corbalan)