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Voting

From lawbrain.com

The right to vote is a fundamental element of the U.S. system of representative democracy. In this form of government, policy decisions are made by representatives chosen in periodic elections based on the principle of universal suffrage, which requires that all citizens (or at least all competent adults not guilty of serious crimes) be eligible to vote in elections. Democratic governments are premised on political equality. Although individuals are inherently unequal with respect to their talents and virtues, they are deemed equal in their essential worth and dignity as human beings. Each individual has an equal right to participate in politics under the law.

Though these principles of representative democracy and universal suffrage have been idealized throughout U.S. history, citizens often have needed to struggle to make these principles a reality. The Framers of the U.S. Constitution did not explicitly define qualifications for voting but delegated to the states the right to set voting requirements. At the time the Constitution was ratified, property qualifications for voting still existed, and the franchise was granted originally only to white men.

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The Growth of Enfranchisement

The movement toward universal suffrage can be traced to the advent of Jacksonian democracy in the 1830s. Property qualifications rapidly diminished for white voters by the beginning of the U.S. Civil War. The end of slavery led, in 1870, to the adoption of the Fifteenth Amendment, which theoretically granted the right to vote to African Americans. It was not until the 1960s, however, that this right became a reality.

The Nineteenth Amendment, ratified in 1920, removed gender as a qualification for voting. The twenty-fourth amendment, ratified in 1964, abolished poll taxes as prerequisites for voting in federal elections. Finally, the twenty-sixth amendment, ratified in 1971, lowered the voting age to 18. These constitutional amendments reveal the slow movement toward universal suffrage, but it would take court decisions as well as federal legislation to ensure that citizens were not denied their constitutional right to vote.

Attempts at Disenfranchisement

For a hundred years the legislatures of southern and border states used a succession of different types of legislation to disenfranchise African Americans and the members of other minority groups. These laws were challenged in court, leading to a steady stream of decisions that restricted the ability of legislatures to limit Voting Rights. Beginning in the 1960s, the federal government became actively involved in ending discriminatory voting practices. In addition, the federal government set new procedures for voter registration, which made it easier to register and vote.

Despite the passage of the Fifteenth Amendment in 1870, African Americans had difficulty exercising their right to vote. In some states, public officials ignored the Fifteenth Amendment, and in other areas, groups such as the Ku Klux Klan used terrorism to prevent African Americans from voting. The U.S. Supreme Court struck down congressional attempts to enforce the Fifteenth Amendment in United States v. Reese, 92 U.S. (2 Otto) 214, 23 L. Ed. 563 (1875). The Court reversed itself in Ex Parte Yarbrough, 110 U.S. 651, 4 S. Ct. 152, 28 L. Ed. 274 (1884), yet in the 1880s Congress showed little interest in securing African American voting rights.

Southern and border states realized, however, that the federal government had the power to ensure the enfranchisement of African Americans. Therefore, these states sought ways of excluding African Americans from the political process; such methods appeared neutral but were employed solely against persons of color.

Grandfather Clause The most blatant official means of preventing African Americans from voting was the grandfather clause. First enacted by Mississippi in 1890, this method soon spread throughout the southern and border states. Typically these clauses required literacy tests for all voters whose ancestors had not been entitled to vote prior to 1866. This meant that African Americans were subject to literacy tests arbitrarily administered by white officials, whereas illiterate whites were exempted from this requirement because their ancestors could vote in 1866. In 1915, the Supreme Court struck down Oklahoma's grandfather clause in Guinn v. United States, 238 U.S. 347, 35 S. Ct. 926, 59 L. Ed. 1340.

White Primary After the grandfather clause was ruled unconstitutional, southern states adopted the white primary as a way of excluding African Americans from voting in a meaningful way. The Democratic Party, in many states, adopted a rule excluding African Americans from party membership. The state legislatures worked in concert with the party, closing the party primaries to everyone except party members. Because nomination by the Democratic Party was tantamount to election in these essentially one-party states, African Americans were effectively disenfranchised. The Supreme Court, in Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944), struck down the white primary as a violation of the Fifteenth Amendment's prohibition against voting discrimination based on race.

Literacy Tests The end of grandfather clauses and white primaries led to the use of other exclusionary tactics. Many states relied on literacy tests that, despite superficial neutrality, were administered in a racially discriminatory manner. White people rarely had to take the test, even if their literacy was questionable. However, because the Constitution had left the determination of voting qualifications to the states and the literacy tests were on their face racially neutral, the Supreme Court refused to strike them down. Ultimately, Congress abolished literacy tests through the voting rights act of 1965 (42 U.S.C.A. § 1973 et seq.).

Poll Tax Another less common means of preventing African Americans from voting was the poll tax. At the time the Constitution was adopted, poll taxes were used as a legitimate means of raising revenue. By the 1850s poll taxes had disappeared, but they were revived in the early twentieth century by states seeking to exclude African Americans from the political process. The tax generally amounted to $2 per election, an amount large enough to deter most persons of color, as well as poor whites, from voting.

On its face, the poll tax was racially neutral. The Supreme Court initially upheld the tax in Breedlove v. Suttles, 302 U.S. 277, 58 S. Ct. 205, 82 L. Ed. 252 (1937), but over time it became clear that it was being used in a racially discriminatory manner. The Twenty-fourth Amendment, ratified in 1963, abolished the use of the poll tax in federal elections. In 1966, the Supreme Court, in Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169, struck down the use of poll taxes in state and local elections, ruling that such taxes violated the Equal Protection Clause of the Fourteenth Amendment.

Voting Reforms

Voting Rights Act of 1965 The passage of the Voting Rights Act of 1965 was a watershed event in U.S. history. For the first time the federal government undertook voting reforms that had traditionally been left to the states. The act prohibits the states and their political subdivisions from imposing voting qualifications or prerequisites to voting, or standards, practices, or procedures that deny or curtail the right of a U.S. citizen to vote because of race, color, or membership in a language minority group. The act was extended in 1970 and again in 1982, when its provisions were renewed for an additional 25 years.

Southern states challenged the legislation as a dangerous attack on states' rights, but the Supreme Court, in South Carolina v. Katzenbach, 383 U.S. 301, 86 S. Ct. 803, 15 L. Ed. 2d 769 (1966), upheld the constitutionality of the act, despite the fact that the law was, in the words of Chief Justice Earl Warren, "inventive."

The initial act covered the seven states in the South that had used poll taxes, literacy tests, and other devices to obstruct registration by African Americans. Under the law, a federal court can appoint federal examiners, who are authorized to place qualified persons on the list of eligible voters. The act waived accumulated poll taxes and abolished literacy tests and similar devices in those areas to which the statute applied.

In addition, the act (under Section 5) required the seven states to obtain "preclearance" from the Justice Department or the U.S. District Court for the District of Columbia before making changes in the electoral system. The 1982 extension of the act revised this provision, extending it to all states. This means that a voter may challenge a voting practice or procedure on the ground that it is racially discriminatory either by intent or by effect.

Motor Voter Laws A state has the right to require bona fide residency as a prerequisite to the exercise of the right to vote in its elections. The courts have also upheld durational residency requirements (how long a person must have resided in the state) for voting. Beginning in the mid-1970s, however, many states began to abandon durational requirements, making it possible for a new resident to register to vote when he applies for a state driver's license. This "motor voter" statute was first enacted in Minnesota (Minn. Stat. Ann. § 201.161 [1992]) in 1992. By year's end, 27 states had some form of motor voter law. Congress eliminated durational residency requirements for voting with the passage of the National Voter Registration Act of 1993 (42 U.S.C.A. § 1973gg et seq.). The act allows anyone over the age of 18 to register to vote while obtaining a driver's license.

Apportionment

Guaranteeing an individual the right to vote does not necessarily mean that the voters in a particular district have the same voting strength as voters in another district. Since the 1960s, however, the implementation of the concept of one person, one vote has meant that unreasonable disparities in voting strength have been eliminated. Nevertheless, racially discriminatory dilutions of voting strength have led the federal courts to become intimately involved in the drawing of election districts.

One Person, One Vote The Supreme Court, in reynolds v. sims 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), established the principle of "one person, one vote" based on the equal protection Clause of the Fourteenth Amendment. The decision resulted in almost every state's redrawing its legislative districts and in the shifting of power from rural to urban areas. All subsequent Constitutional Law on apportionment has relied on the principles established in Reynolds.

Until the Reynolds decision, most state legislatures gave more seats to sparsely populated rural areas than to heavily populated urban areas. Because rural legislators controlled the legislature and had a vested interest in perpetuating this apportionment scheme, legislative change had proved impossible. In Reynolds the Supreme Court concluded that to permit the minority to have power over the majority would be a violation of the Equal Protection Clause. The dilution of the weight of a person's vote because of where that person lives qualified as invidious discrimination, just as if the decision had been based on that person's race or financial status. Therefore, the Court required that "each citizen have an equally effective voice in the election of members of his state legislature."

Racially Discriminatory Apportionment The Voting Rights Act of 1965 gave the courts the right to review racially discriminatory election districts. The federal courts have struck down at-large elections, in which a number of officials are chosen to represent the district, as opposed to an arrangement under which each of the officials represents one smaller district or ward. Southern cities where whites were in the majority used the at-large election system to perpetuate all-white rule. Courts have required the creation of smaller wards or districts that give African Americans and other protected groups a reasonable opportunity to elect a person of color to city council.

Racial Gerrymandering The courts have also tackled the issue of racial gerrymandering, which is the intentional manipulation of legislative districts for political purposes. In these cases, districts have been drawn in bizarre shapes to include or exclude voters of a particular race.

In early cases white politicians gerrymandered districts to prevent African Americans from having any voting strength. In the 1990s, the debate moved to the legitimacy of creating, under the authority of the Voting Rights Act of 1965, unusually shaped congressional districts to ensure that they contained a majority of minority voters. The perceived hope was that minority unity would lead to the elections of persons of color. The Supreme Court, in shaw v. hunt 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996), ruled that the redrawing of a North Carolina congressional district into a "bizarre-looking" shape in order to include a majority of African Americans could not be justified by the Voting Rights Act of 1965, because it violated the Equal Protection Clause of the Fourteenth Amendment. Justice sandra day o'connor found it "unsettling how closely the North Carolina plan resembles the most egregious racial gerrymandering of the past." O'Connor agreed that prior cases had never made race-conscious redistricting "impermissible in all circumstances," yet agreed with the white plaintiffs that the redistricting was "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification."

The Supreme Court continued its review of allegedly racially gerrymandered districts in Abrams v. Johnson, 521 U.S. 74, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997). The Court upheld a legislative redistricting plan that reduced from three to one the number of majority-black congressional districts in Georgia. The Court supported the district court's decision not to preserve three majority-black districts because the area's African American population was not sufficiently compact to sustain three, or even two, districts. According to the ruling, drawing multiple districts would have resulted in racial gerrymandering. The Court also ruled that the plan's creation of only one majority-black district would not violate the Voting Rights Act by causing retrogression in the political position of African American citizens. It noted that in the 1992 elections, held under the challenged plan, all three African American incumbents won reelection, two of whom while running against white candidates from majority-white districts. This confirmed for the Court that the plan was not discriminatory.

In Reno v. Bossier Parish School Board, 528 U.S. 320, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000), the Supreme Court effectively resolved the relationship between Sections 2 and 5 of the Voting Rights Act. Section 2 applies to all 50 states, while Section 5 applies to seven southern states (including Louisiana) that had used poll taxes, literacy tests, and other devices to obstruct registration by African Americans. The Court ruled that a redistricting plan may be precleared under Section 5, even if the proposed plan might seemingly violate Section 2. As a result, the Court reversed 25 years of federal policy by limiting the power of the Justice Department to block proposed redistricting changes for state and local elections.

African American citizens of Bossier Parish, Louisiana, objected to a redistricting plan drawn up by the Bossier Parish School Board, which had been precleared under Section 5 by the Justice Department. They argued that Section 2 barred the plan because it denied the creation of several majority-black districts. When it was supplied with evidence of possible discrimination and an alternative redistricting plan by the National Association for the Advancement of Colored People (NAACP), the Justice Department moved to block the original preclearance. The school board challenged the decision before the Supreme Court. The Supreme Court held that Section 5 was intended by Congress to prevent backsliding by states that had a history of past voter discrimination. As long as the new plan did not increase the degree of discrimination (which they felt it did not), it was not retrogressive, and therefore was entitled to Section 5 preclearance.


Voting Procedures

The passage of the federal motor voter law eliminated restrictive voter registration requirements. A person may now register when applying for a state driver's license. In addition, a person may register at the polling place in his voting district by showing a state driver's license and having two witnesses vouch for him. Persons who are not able to vote at a polling place on election day may apply for an absentee ballot and vote ahead of time. These ballots are not opened until after the polls close on election day.

Since 1884, the United States has used the secret ballot. Originally paper ballots were used, but in many areas of the United States mechanical voting machines are employed. Voting systems are also in place in which a machine optically scans a paper ballot and tabulates the votes for each office. Enhanced technology has allowed quicker reporting of results and fewer arithmetical errors. Nevertheless, candidates may ask for a recount of the ballots, and in circumstances where the vote is very close or where fraud is alleged, each ballot is examined for accuracy and compliance with the law. The 2000 presidential election results in the state of Florida provided a vivid lesson in the complications that can arise from poor ballot design.

Generally the results of each election race are reported to a local board, which certifies the result to the state's secretary of state. The secretary, in turn, reviews the results and issues an official certificate of election to the successful candidate.

Further Readings

Abramowitz, Alan. 2004. Voice of the People: Elections and Voting in the United States. New York: McGraw-Hill.

Burke, Christopher M. 1999. The Appearance of Equality: Racial Gerrymandering, Redistricting, and the Supreme Court. Westport, Conn.: Greenwood.

Festa, Matthew J. 2001. "The Origins and Constitutionality of State Unit Voting in the Electoral College." Vanderbilt Law Review 54 (October).

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