Introduction to US Voting Rights

The right to vote has been a contentious issue in the US since the inception of the country. There was no specific right to vote or qualifications to vote drafted into the US Constitution. Each state was left to develop individual standards on how to run its voting and election processes. During the early years of the US, the right to vote was traditionally limited to white men who owned property, with a few states permitting freed African-Americans to vote. Prerequisites used to determine who was permitted to vote in the states included characteristics such as race, sex, property ownership and wealth. Religious requirements were also widely used to determine voting and office-holding eligibility: early versions of the constitution of South Carolina only allowed Protestants to vote, Delaware required every elected official to affirm belief in both the Old and New Testaments of the Christian Bible and the state of Maryland did not extend voting rights to Jewish individuals until 1828.

In 1790, the Naturalization Act was passed, which restricted those who were eligible for naturalized citizenship to free, white immigrants. Functionally, this meant that voting in nearly all US states remained limited to those free white males who were citizens. Several states allowed women to vote temporarily, such as New York, Massachusetts, New Hampshire and New Jersey. By 1807, however, even those states had repealed their formerly permissive laws.

The Nineteenth Century

The nineteenth century was a time of great upheaval in the arena of voting rights. The century began with voting being limited to only free white males, and ended with several states beginning to relax their restrictions. The development of these new voting regimes dovetailed with the fight for citizenship pursued by immigrants, Native Americans and women.

In 1848, as a reaction to the lack of citizenship rights for women, a women's rights convention was held in Seneca Falls, NY, where speakers — including Frederick Douglass, Elizabeth Stanton and Lucretia Mott — called for universal suffrage. The groups from this convention eventually split to pursue separate avenues of citizenship rights, specifically focusing on women and African-Americans. The same year as the convention, the Mexican-American War ended, and US citizenship was granted to all Mexicans living in territories conquered by the US. While this was a significant step toward more individuals obtaining the right to vote, many states instituted even more prerequisites in response to the annexation, such as English-language requirements.

The dispersion of voting rights took a small step forward in 1856, when North Carolina became the final US state to remove property ownership as a prerequisite voting requirement. By that time, the right to vote had extended to include virtually all white men. Following the end of the US Civil War, the Fourteenth Amendment was passed granting citizenship to all former slaves. However, citizenship remained restricted to males and women were, again, classified as non-citizens. Although this was one of the first major expansions in American voter rights, many voting-based regulations remained in the hands of the individual states.

African-Americans were not the only ethnic groups struggling with the relationship between citizen and voter in nineteenth century America. In 1876, the US Supreme Court ruled in US v. Cruikshank that Native Americans were not citizens, and in 1882 the Chinese Exclusion Act barred those of Chinese heritage from becoming citizens, and, consequently, from voting.

As a response to the Cruikshank decision, the Dawes Act was passed in 1887. The legislation created a path to citizenship for Native Americans, although it required them to renounce their tribal affiliations. Women were also making inroads during the late 1800's. Finally, in 1890, some states began to grant women the right to vote as Wyoming became the first state in the "modern era" to enshrine women's suffrage in its state constitution. The states of Utah, Colorado, Idaho, Washington and California quickly followed suit.

The Twentieth Century

The 1900's were arguably the most significant years in terms of steps taken to expand those included in the body of voters across the US, in both state and federal elections. In 1919, any Native American who had served in the military during World War I was granted citizenship. The Nineteenth Amendment to the US Constitution, which guaranteed women the right to vote in both state and federal elections, was ratified the following year. And the Native American population gained additional ground in 1924 with the passage of the Indian Citizenship Act. Although they could thereafter become citizens, Native Americans were still the targets of voter discrimination through various state policies and voting requirements.

During this same time period in many southern states, only white voters were permitted to participate in Democratic primaries. These so-called "all-white" primary elections were used to maintain control of state governments during an era when the Democrat who won his party's nomination inevitably carried the general election. In 1944, the US Supreme Court ruled in Smith v. Allwright that "all-white" primary elections were unconstitutional. Up through the 1960's, however, several states continued to use both poll taxes and literacy tests to keep certain groups from influencing elections throughout the country. In 1964, the Twenty-Fourth Amendment banned the use of poll taxes in federal elections, but it was not until 1966 that the Supreme Court ruled in Harper v. Virginia Board of Elections that poll taxes in state elections also violated the Fourteenth Amendment's Equal Protection Clause. This constituted the removal of a significant barrier to voting in the United States. Another major step came in 1965 with the passage of the Voting Rights Act (VRA), which is discussed in depth below.

The late 1900s brought young voters back into the picture around the time of the Vietnam War with the ratification of the Twenty-Sixth Amendment, which lowered the voting age in the US to 18 years old — the minimum age for being drafted into the military. Finally, another significant barrier was removed in 1975 when an amendment to the VRA was passed requiring certain voting materials such as notices, forms and instructions to be provided in languages other than English.

The Twenty-First Century


State voting laws have continued to be at issue for the past decade as political battlegrounds form in states where laws may significantly shape voter turnout. Convicted felons are another group that has been fighting disenfranchisement, which ranges from removal of voting rights during imprisonment or until probation has been completed to indefinite removal. In 2001, the National Commission on Federal Election Reform encouraged states to allow felons to regain their right to vote once their sentence is completed. Since the early 2000s, the status of felons' voting rights has fluctuated in many states. As of 2016, 9 states prohibit all those convicted of felony crimes from voting in the state until the right is restored by Governor or Court action. In January 2010, the US Court of Appeals for the Ninth Circuit held that a portion of Washington's state constitution that withheld the right to vote from felons violated Section 2 of the Voting Rights Act. However, the Ninth Circuit upheld the Washington's felon voting laws later that year in an en banc rehearing.
In 2016, Virginia Governor Terry McAuliffe signed an executive order restoring voting rights to individuals who have completed their terms of incarceration and any supervised probation or parole. Virginia's Republican lawmakers challenged the action, as have advocacy groups. The Virginia Supreme Court ultimately held the action to be unconstitutional. In August 2016, Gov. McAuliffe announced he would be issuing restoration orders on an individual basis.
In June 2016, the Iowa Supreme Court held that the state's felon voting laws withstood a challenge brought by the ACLU, which claimed that the law violated the state constitution. In September 2016, the California Governor Jerry Brown approved a bill that clarified felon voting rights, specifying that felons serving certain county sentences would not be stripped of their right to vote.
Other legal challenges, particularly in the run-up to the 2012 Presidential election, have centered around early voting. In particular, the Attorney General of Ohio appealed a US Court of Appeals for the Sixth Circuit decision that state election officials could not abolish an early voting procedure that had been in place since 2004 because it would disenfranchise those unable to vote on Election Day. The US Supreme Court subsequently denied Ohio election officials' stay application. Conversely, the US District Court for the Middle District of Florida issued a ruling that Florida does not have to provide 96 hours of early voting access.
Litigation leading up to the 2016 Presidential election focused on voter purging and other registration-based issues. In September 2016, US District Court for the Northern District of Illinois blocked a law that would have allowed Election Day registration because it only applied to Illinois' most populated counties. That month, the US Court of Appeals for the Sixth Circuit struck down an Ohio procedure that purged inactive voters from rolls. In October 2016, the US District Court for the Southern District of Ohio ordered the state to allow the voters who were unlawfully removed by the procedure to vote in the upcoming election. Other challenges responded to external obstacles to voter registration: In October, Federal judges ordered Virginia to extend its registration period following technical difficulties with the state registration website. In the aftermath of Hurricane Matthew in October, the US District Court for the Northern District of Florida extended Florida's voter registration period, and the American Civil Liberties Union (ACLU) sought the same remedy for counties in Georgia affected by the hurricane. The US Court of Appeals for the Fourth Circuit denied an emergency motion requesting an extension of early voting for counties in North Carolina affected by Hurricane Matthew. In November, a district court judge invalidated a Kansas voter registration procedure that would have disenfranchised thousands of voters.
As the election approached, lawsuits emerged concerning voter intimidation and polling policies, with mixed results. In early November, the US District Court for the Northern District of Ohio granted an injunction against aggressive voter intimidation tactics that was stayed days later by the US Court of Appeals for the Sixth Circuit. In a case against the Republican National Committee, The US District Court for the District of New Jersey declined to find that the party engaged in poll intimidation in connection with statements made by Presidential candidate Donald J. Trump about monitoring polling places for fraud. A North Carolina federal judge rejected a similar challenge. The US District Court for the Eastern District of Pennsylvania denied Pennsylvania Republican Party's efforts to allow out-of-county poll-watches, noting that the request was not in the public interest.

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