Jay Thal has been serving the Forest Hills community for 20 years as the precinct captain of Precinct 138, overseeing voting at the Capital Memorial Church on Chesapeake Street, and as he states, “Always supported by a great staff.”
This is the third of three opinion pieces Thal has written for us on voting in DC and in our country. The first was upon registering voters – upon their birth. The second is on what makes U.S. voter truly exceptional. (Thal’s views are his own and do not represent those of the DC Board of Elections.)
by Jay Thal
When our country was established by the Constitution in 1787, the 13 states retained the discretion to establish their own standards for voting under the 10th Amendment (and still do). Before the Constitution was ratified (1776-1787) Georgia was an outlier. It required citizens to vote but limited voting to white males who held property – not women, not employed men or skilled laborers, not slaves, nor native Americans. Other states had different inclusions and exclusions to voting.
Since 1787, it has been a long and arduous journey to secure the right of citizenship and the right to vote for those other than white males.
- White women, although they counted as citizens from the get-go, couldn’t vote (under the Constitution) for 137 years.
- Immigrants, sought for their labor, were excluded from citizenship by laws defining the limits on ethnic entry and naturalization policy, and therefore, could not vote.
- Mexicans-Americans were granted citizenship in 1848 after President Polk went to war with Mexico in 1846 and annexed half a million square miles of Mexican territory. Those who resided within what is now California, Arizona, New Mexico, Colorado, Utah, Wyoming and Nevada were suddenly citizens, but were denied voting rights. Remnants of antipathy toward their voting participation remain to this day.
The 14th Amendment, ratified in 1868, didn’t directly, move the march of voting rights forward. Its first section established transformative concepts: the birth and naturalization of citizens, due process of law, and equal protection of the laws, which have had impact through laws and judicial review. But it did not convey voting rights on newly freed (male) slaves.
15th Amendment – A big step forward
In 1870, after a bloody Civil War, the 15th amendment to the Constitution sought to provide the vote to all male citizens 21 years of age or older and “…born or naturalized in the United States…” It further states that the:
“right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”
That amendment ended with:
“Section 2. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
But Congress took no action to establish uniform election procedures for various states even in elections concerning federal and constitutionally established offices. States could narrow participation as they saw fit, and still do so today. The states used poll taxes, literacy tests and other means. Today, long voting lines and demands for identification discourage voting, as well.
As for voting rights for women, the territory of Wyoming led the country in allowing women to vote (1869). Mostly western states advanced voting rights for women, while mostly southern states waited until the Constitution was amended. Not until 1920 did the 19th Amendment grant all women the right to vote.
More progress in the 1960s
It took another 44 years (1964) for the 24th Amendment to abolish the poll tax or other taxes ONLY in elections for Federal office.
Section 2 reads: “The Congress shall have power to enforce this article by appropriate legislation.” And although this section provided Congress with enough backbone to enforce the rights of black voters, it took the 1965 The Voting Rights Act to do so.
The Voting Rights Act aimed to overcome legal barriers at the state and local levels that prevented African Americans from exercising their right to vote under the 15th Amendment. But, that act was narrowly drafted and primarily addressed only those impediments that were enacted by the insurrectionist states of the Confederacy one hundred years before.
The Voting Rights Act did NOT address impediments that have sprung up in other states – maldistribution of voting resources or locations; massive restrictions on persons who have otherwise paid their debt to society; or difficulties securing what is (locally) deemed appropriate identification. Section 5 required states (and individual counties elsewhere) that had egregious records of voter restrictions to secure prior approval for any changes in voting rules. Included were nine states: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. The VRA was sustained by the Supreme Court in 1966 (South Carolina v. Katzenbach)
One step forward and many steps backward
The U.S. suddenly became brash and with the 26th Amendment in 1971, extended the right to vote to citizens eighteen years of age and older. Our engagement in Vietnam had a lot to do with the inclusion of 18- to 21-year-olds.
Decades later came a major step backward. In 2013, the Supreme Court, after 48 years, invalidated Section 4 and essentially gutted the pre-clearance provisions (Section 5) of the Voting Rights Act by a 5-4 decision in the case of Shelby County v. Holder.
It is not unreasonable to speculate that future historians will laud the dissent of Justice Ruth Bader Ginsburg. A memorable sentence from her dissent is: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Almost immediately, many states enacted laws that added barriers to voting which many people believe were designed to obviate gains made at the ballot box by minority members of our population. Many of those laws involved alleged voter fraud that couldn’t be validated statistically.
In 2011, just before the Shelby decision, legislators in 41 (82%) states proposed 180 voting restriction laws. One shouldn’t have a positive feeling just because “only” 19 of those states enacted 25 suppression laws that year.
The Brennan Center for Justice cited 92 restrictive bills introduced in 33 states during 2013. This year, the center identified “only” 14 states with new voter restrictions – that’s still not a good thing.
State administrative actions to suppress voting supplemented that. An early example was the misplacement of voting machinery at majority-minority precincts causing hours-long lines. Other states have followed by closing voting precincts claiming budget limitations, or shortening the period for early voting. Some of these laws have been passed this year in states that were not part of the insurrectionist Confederacy: Ohio, Indiana, Wisconsin, Nebraska, Kansas, Rhode Island and New Hampshire.
The Lawyers’ Committee for Civil Rights Under Law, the NAACP, the Advancement Project, and the ACLU are among the best known organizations working in opposition to the Shelby decision. It is becoming clear to some federal judges that the bird of equality has left its cage.
Lower federal courts are not in lockstep with the Supreme Court’s Shelby decision. The DC Circuit blocked a voter registration requirement in Alabama, Georgia, and Kansas as recently as September 9th.
Other voting rights wins:
- The 5th Circuit Court of Appeals determined that the Texas ID laws (the strictest in the nation) violated the Voting Rights Act and Texas will now accept a signed affidavit.
- On the same day another Federal Judge ruled that Wisconsin voters needn’t have an ID because its claim about preventing voter fraud could not be validated and was a “cure worse than the disease.”
- In August, a federal appeals court nullified North Carolina’s restrictive ID law because it was clear to the judges that “the new provisions target African Americans with almost surgical precision.”
- North Dakota lost in another court because it would burden Native Americans.
Some jurisdictions are still denying the voting rights of minority citizens. Expanding and protecting these rights has been battled through laws and the courts. And presently minority voting rights are under attack despite recent wins in the appellate courts just before the 2016 General Election.
This map explains where we are and how far the country needs to go to achieve equal protections under the law.