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THE LEGAL STRUGGLES TO GAIN AMERICANS THE RIGHT TO VOTE

 

Samia J. Amamoo

The national elections of November 2000 will allow us to make our voices heard through the ballot box. However, if the trend from the national elections of 1996 continues, less than half of us will actually exercise this right. Statistics released by the U.S. Federal Election Commission show that in 1996 only 49.8 percent of the eligible voting age population voted in the general election. The “voting age population,” according to the Federal Election Commission, includes all persons who would be eligible to vote if registered—citizens, 18 years old or older, who are not convicted felons and prison inmates. In other words, of those U.S. residents who are not legally barred from voting for one reason or another, more than half either did not register, or registered but did not vote.

Of those citizens who were registered to vote but did not do so, 17 percent stated they were not interested or did not care about the 1996 elections, according to polls conducted by the U.S. Census Bureau. This statistic represents a significant increase from the 1980 election, when only 11 percent gave that reason for not voting. Apathy is a serious problem. Many people believe that their one vote will not make a difference, or that the candidate with the most money always wins, or that all candidates are self-centered and do nothing but self-promotion, or a combination of all of the above.

Time constraints are also frequently raised as reasons for not voting. In the 1996 national election, one in five people polled by the U.S. Census Bureau said that they were unable to take time off from work or school, or were too busy to vote. Few people would dispute that our lives are more hectic and our schedules more compressed than ever, even though we have computers, instantaneous mail, mobile phones, and countless other technologies that ostensibly make life more convenient and therefore more efficient. One possible legal response would be laws mandating that the polls stay open longer—perhaps even 24 hours. Currently, polls remain open about 12 hours, usually opening earlier and closing later than normal work hours to accommodate the working schedules of most voters. Or, perhaps elections should be held on weekends, when work and school are less intrusive. Mail-in ballots—which are being implemented in some jurisdictions—are another possibility.

However, some commentators suggest that lessening the supposed “inconvenience” of voting might not actually increase turn-out much. After all, election day is hardly a surprise. With a few exceptions for special elections, elections for all national offices are held on the same day, the first Tuesday after the first Monday in November.

Many reasons are offered to explain why less than half of Americans actually vote. Some argue that in this, the longest period of post-World War II prosperity, people are relatively pleased with the performance of their elected officials and are, therefore, less inclined to fire them and bring in new faces. Others see a waning in importance of traditional institutions of representative government. Since turnout is often higher for elections in which voters are asked to vote on laws directly—referendums and initiatives—it may be that this kind of direct democracy seems more important to voters than voting for representatives.

Whatever the reasons why such a substantial portion of the population does not vote, they pale in comparison to the legal barriers that prevented many Americans from voting in the past. The Americans who struggled and sacrificed for universal voting rights believed that the battle was over when the legal barriers were torn down. It appears that many of us have forgotten or simply do not know about the passion that Americans once had for the right to vote. This passion rose above excuses, and was so intense that these Americans—such as Alice Stokes Paul, chief strategist for the militant wing of the women’s suffrage movement—were willing to face ridicule and abuse and were prepared to go to jail and to undergo hunger strikes for the right to vote.

This article will present the major milestones in the historical battle for voting rights. The future role and influence of the referendum and initiative process as a means of effecting social, economic, and political change will also be discussed. The article will conclude by asking whether, as suggested by some, greater use of the referendum and initiative process will reduce the reasons given for not voting and, indeed, increase voter turnout.

 

The Long March to Enfranchisement

One theme in the story of our democracy has been the steady growth in the number of persons able to vote. Early in this country’s development, as the drafters of the U.S. Constitution grappled to define the rights and responsibilities of citizenship, there was overwhelming recognition that the right to vote was an
integral and important component of citizenship. However, the answer to the larger question of who was a citizen, and therefore entitled to the rights and responsibilities that flow from citizenship, remained in flux as people excluded from the definition of citizen such groups as blacks, Native Americans, and women. Thus, in many ways the changing definition of citizen mirrors the expansion of the franchise.

In the early days of the republic, the letter and spirit of the law permitted only a few Americans to vote. When the Constitution took effect in 1788, blacks, white women, and those persons who were not landowners or taxpayers were largely excluded from the democratic process. Thus, only about 6 percent of the adult male population had the franchise.

The battle to expand the voting franchise began gradually in the 1800s, initially on a state by state basis. Over the years, states began to eliminate property ownership, the payment of taxes, and one’s religious beliefs, as prerequisites to voting. By 1850, these barriers were obsolete in all states, but other significant barriers, specifically race and/or gender, remained. It would take almost one hundred years and several amendments to the Constitution before these barriers were also abolished.

 

The Fifteenth Amendment—Beginning to Remove the Racial Barrier

One of the most significant triumphs in the national battle for voting rights came in 1870, when the Fifteenth Amendment to the Constitution granted blacks the right to vote. The Fifteenth Amendment was part of a natural progression in the amendments following on the heels of the Civil War. The Thirteenth Amendment outlawed slavery; the Fourteenth Amendment granted citizenship to all people born or naturalized in the United States. The Fifteenth Amendment, which states, “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,” was designed to further protect the rights of the newly freed slaves by eliminating barriers to their voting.

In practice, however, blacks in the South were not enfranchised by this amendment. Why? Because day-to-day customs and habits are hard to reverse and, therefore, the constitutional rights required additional enforcement. And, in the years following the ratification of the Fifteenth Amendment in 1870, instead of determined efforts to enforce the amendment, there were spirited attempts to frustrate it. Southern states passed laws that in effect nullified the federal law. Some of these states required citizens to pay a fee, known as a poll tax, before being allowed to vote. Thus, while the overt racial barrier had been torn down, a monetary barrier was erected in its place.

In addition, grandfather clauses—limiting the voting right of blacks to those whose fathers or grandfathers voted before the Civil War—were added to the constitutions of several Southern states. Other barriers included “white primaries” and literacy tests. The “white primary” was a technique employed by whites to prevent blacks from voting in the primaries. In effect, it negated the Fifteenth Amendment’s right to vote since almost everything was decided in the primary and that made the general election meaningless. Literacy tests required blacks who wished to vote to demonstrate reading and writing skills. These tests were administered in an ad hoc, discriminatory fashion and ranged from demonstrating one’s rudimentary understanding of the English language to being required to recite sections of English literature from memory.

It would take an additional one hundred years of political struggle, and the passage of new laws and other Constitutional amendments, before these barriers were eliminated and blacks effectively received the right to vote. In 1915, the United States Supreme Court declared grandfather clauses unconstitutional in the landmark case that originated in Oklahoma, Guinn & Beal v. United States, 238 U.S. 347 (1915). Three decades later, the Court pronounced in Smith v. Allwright, 321 U.S. 649 (1944) that white primaries violated the Constitution, reasoning that political parties were not strictly private entities, and thus, were subject to the requirement of the Fifteenth Amendment that no state should deny or abridge the right to vote on the basis of race. In 1964, the Twenty-Fourth Amendment outlawed the payment of a poll tax or any other type of taxation as a prerequisite to voting in national elections. The Supreme Court in 1966 banned similar monetary requisites in state and local elections in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).

 

The Voting Rights Act of 1965

However, even with the elimination of the monetary barrier to voting, many blacks, mostly in the South, continued to endure difficulties when attempting to exercise their franchise. These difficulties were clearly evident during the presidential election campaign of 1964, when many organized efforts to register blacks failed because of violent resistance, some of which even resulted in the deaths of those attempting to bring blacks fully into the political process.

 o highlight the problem of entrenched and often violent resistance to granting blacks civil rights, Dr. Martin Luther King organized a march from Selma to Montgomery, Alabama, in March of 1965. Immediately following this monumental march, which gained national support for the cause as a result of televised images of protesters being brutally confronted by police, President Lyndon B. Johnson sent the Voting Rights Act of 1965 to Congress, and it was quickly passed. The Voting Rights Act contained language that authorized the U.S. attorney general to send federal examiners to register black voters under certain circumstances. This resulted in 250,000 newly registered black voters by the end of 1965. The Act also suspended all literacy tests. Specifically, Section 2 of the Voting Rights Act provides that “no voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any state or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”

 

The 19th Amendment–-the Removal of the Gender Barrier

During the 1800s, parallel to black peoples’ struggle for the franchise, women began their lengthy battle for the right to vote. Many women actively participated in the nationwide suffrage movement, but Susan Brownell Anthony and Elizabeth Cady Stanton were arguably the two most prominent leaders of the movement.

Elizabeth Cady Stanton was a feminist ahead of her time. She omitted the word “obey” from her marriage ceremony. Somehow, she found it possible to juggle a full family life—with seven children! —and an unswerving commitment to working to achieve the rights of women. In 1848 in Seneca Falls, New York, Elizabeth Stanton authored the “Declaration of Sentiments” in which she stated that “men and women are created equa#148; and proposed that women should have the right to vote.

Two years later, also in Seneca Falls, Elizabeth Stanton and Susan Anthony met on a street corner and formed a political partnership that would last 50 years. Susan B. Anthony was a reformer in every sense of the word—an abolitionist, a crusader against alcohol, a supporter of women’s rights in everything from education to property rights and voting. Together, these two women pioneered the women’s suffrage movement by giving speeches, publishing, and organizing demonstrations and marches. Social changes resulting from World War I, combined with the tenacity of Susan Anthony and Elizabeth Stanton and their many younger followers, finally led to the addition of the 19th Amendment to the Constitution in 1920.

Susan Anthony originally drafted the 19th Amendment and had it first introduced to Congress in 1878. Before the 19th Amendment became law, several Western states—including Wyoming, Utah and Colorado—had already given women the franchise for state and local elections. The women’s suffrage movement had moved more quickly and successfully in these states, perhaps because women worked along with men on farms or outside the home in these sparsely populated states.

A summary of the women’s suffrage movement necessarily focuses on the women leaders, but it is important to remember that some farsighted men endured public ridicule for their outspoken support for the women’s suffrage movement. Lucretia Coffin Mott, a pioneer of the women’s movement and the person who convened the first women’s right convention in Seneca Falls, was married to James Mott, who shared and supported her belief in women’s right to vote. Another husband who shared his wife’s vehement opposition to women’s lack of suffrage was George Catt, who married Carrie Lane Chapman, lobbyist, fundraiser, and founder of the League of Women Voters. Similarly, Henry Blackwell, along with his wife, Lucy Stone—the first female college graduate in Massachusetts and a woman who refused to take the name of her husband at marriage—and their daughter Alice Stone Blackwell, published the influential Woman’s Journal, the official paper of the National American Woman Suffrage Association.

 

The 24th Amendment–-Poll Tax or Other Taxes Removed

Another legal barrier to voting, mentioned briefly earlier in this article, was the monetary requirement for voting known as the poll tax. In the last decades of the 1800s, several Southern states adopted poll tax laws that effectively mandated that any man who wished to vote must pay a fee prior to being allowed to vote. Harsh
economic times during this period had united many poor minority and white groups in their common goal to improve their financial situation. The growth and momentum of this union threatened the ruling class of the South, and they responded by enacting poll tax laws. Thus, in the 1890s, many men, both minority and white, were legally ineligible to vote because they did not have enough money.

President Lyndon Johnson, at ceremonies celebrating the ratification of the Twenty-Fourth Amendment, stated that by abolishing the poll tax the American people “reaffirmed the simple but unbreakable theme of this Republic: Nothing is so valuable as liberty and nothing is so necessary to liberty as the freedom to vote without bans or barriers … There can be no one too poor to vote.”

When the Twenty-Fourth Amendment was ratified in 1964, most of the Southern states had already repealed their poll tax laws. Thus, the Twenty-Fourth Amendment directly affected only five states: Alabama, Mississippi, Arkansas, Texas, and Virginia.

 

The 26th Amendment—Eighteen-year-odds Eligible to Vote

With the elimination of the race and gender barriers to voting, and the abolition of monetary prerequisites, it may appear that the suffragists had won their battle to expand the franchise. However, the United States in the 1960s was gradually drawn into a civil war in Vietnam, and by mid-decade hundreds of thousands of Americans were serving in an increasingly unpopular war.

Just as the Civil War and World Wars I and II led to expanding the pool of eligible voters, the Vietnam War spawned a suffragist movement composed primarily of young Americans aged 18 to 20 years who wanted to participate in the political process by voting. These Americans argued that the government’s position that their age was not a barrier to being drafted and possibly facing death in the Vietnam War, but was a barrier to voting, was hypocritical and unfair. Further support for their position, they argued, was provided by statistics that showed that 60 percent of young people aged 18, 19, and 20 worked full time and paid taxes, and were better informed and had achieved higher levels of education than their elders.

Opponents of this movement pointed to statistics that showed that the majority of people aged between 21 to 30 years did not vote, thereby indicating that even younger people would also not vote. The young Americans countered that political enthusiasm should be encouraged early in one’s adult life to foster a lifetime of civic participation.

These arguments laid a solid foundation for the Twenty-Sixth Amendment, but they were technically not the direct cause for ratification of the amendment that lowered the voting age from 21 to 18 years of age. In 1970, Congress extended the Voting Rights Act of 1965, described earlier in this article as the legislation that removed literacy tests and other discriminatory practices used to prevent blacks from voting. In doing so, Congress included a provision lowering the qualifying age for voting from 21 to 18 in all national, state, and local elections.

Many states challenged this provision, arguing that it was unconstitutional for the federal government to establish voting qualifications for state and local elections. In Oregon v. Mitchell, 400 U.S. 112 (1970), the Supreme Court decided this constitutional issue. The Court held that Congress was empowered to lower the voting age for federal elections—thanks to the “Necessary and Proper” clause of the Constitution, as well as several other provisions—but had exceeded its power by applying the lower age to state and local elections.

To comply with this decision, substantial sums of money would need to be expended to create separate election systems, one federal and one for all others, and to maintain different registration records. States farsightedly decided that such a system would be too confusing, impractical and expensive to run. Thus, the Twenty-Sixth Amendment was proposed and approved by Congress in March 1971, and its ratification completed barely four months later. It states in part that “[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any state on account of age.”

After the struggle to expand the franchise and the elimination of significant impediments to voting–such as one’s race, gender or financial status–it is difficult to understand why so many do not exercise their hard-won voting rights. In order to increase voter turnout and re-engage voters, some commentators have suggested that more emphasis should be placed on the system of direct voting–initiatives and referendums.

 

Looking Ahead—Referendums and
Inititatives

Are initiatives and referendums the wave of the future? Do they have the potential to involve voters on a more basic level and increase turnout?

Both these methods of direct voter involvement in law-making trace their roots to the Progressive Movement of a century ago. Woodrow Wilson wrote approvingly, “We are cleaning house, and in order to clean house the one thing we need is a good broom. Initiative and referendum are good brooms.” His contemporary, Teddy Roosevelt, concurred but added a caution: “I believe in Initiative and Referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative.”

It has been estimated that turnout is five to seven points higher when voters are asked to vote on an initiative—a proposed law or amendment to the state constitution—or a referendum (the opportunity to reject laws or amendments proposed by the state legislature). These initiatives and referendums exist only on the state level. National votes or national referendums, of course, do not take place in the United States.

Many other countries, however, use and have used national referendums to resolve divisive issues of public importance. Great Britain held a national vote to decide whether it wanted to enter the European Economic Community, South Africa held one on the abolition of apartheid, and more recently, Ireland held a national vote on a peace plan. The Coalition for National Referendum, an advocacy organization that represents 34 mainstream organizations on the issue of national referendums, promotes the position that the United States should also put in place a national referendum system. Voter turnout would thus be expected to increase.

The Coalition asserts that a national vote is a more efficient and fairer method of settling significant issues that appear beyond resolution than our current system provides. Voters are presented with a narrowly tailored question and asked to respond. By casting their votes in a referendum, voters are able to embrace tangibles rather than intangibles in the form of individuals who are making a series of promises; In or Out to the European Economic Community, Yes or No to apartheid, and Yes or No to the peace plan.

Certainly, national referendums may reduce the number of people who do not vote because they perceive their one vote does not count. The results from a national referendum, once tallied, are clear. This contrasts with the representative system, where once a question has been raised, framed as an act and moved through both Houses of Congress, survived scrutiny in Joint Committee sessions, and been signed into law by the President, it is often not clear who are the victors or which side won.

The counter argument is that, while there are some societal issues that can be framed in a short question demanding an affirmative or negative response, many issues cannot be dealt with so simply. When many factors and perspectives have to be considered, the unwieldy representative system may remain the optimum way by which to attain resolution.

 

Initiatives and Referendums in Action

Since 1888, statewide referendums and initiatives have been used to decide a diverse range of socioeconomic issues, from the medicinal use of marijuana to animal rights. Interestingly, while 24 states have provisions for some form of statewide referendums and initiatives, approximately 56 percent of all activity to date has taken place in only five states—California, Colorado, North Dakota, Arizona, and Oregon.

Statewide initiatives do not always produce the immediate answers sought by voters. In Oregon, for example, it took over three years, two separate elections, and several legal proceedings—including a petition that was denied by the U.S. Supreme Court—to enact and fully implement The Death with Dignity Act, which makes physician-assisted suicide a legal medical option for terminally ill Oregonians.

The Death with Dignity Act began as Ballot Measure 16, a citizen’s initiative that was passed in November 1994 by a slim margin of 51 percent in favor and 49 percent opposed. Following a three-year period of legal delays and intense wrangling, Oregon voters in November 1997 were again asked about the issue in Measure 51 to repeal The Death with Dignity Act. By a margin of 60 percent to 40 percent, voters chose to retain the act. Approximately one year later, Oregon’s Health Division issued its first report summarizing the information it had collected about the patients who had obtained from their physician prescriptions for the voluntary self-administration of lethal medications. However, the dust has not begun to settle on this unique legislation. (Oregon is the only state that has a statute permitting physician-assisted suicide; voters in Michigan, Minnesota, California, and Washington have rejected similar ballot measures to legalize it.) If the Pain Relief Promotion Act of 1999, which the U.S. House of Representatives passed but which did not survive in the Senate, becomes federal law, then The Death with Dignity Act will once again be subject to challenge.

Affirmative action—whether to continue preference programs for minorities in state and municipal hiring and university recruitment—is another issue for which voters have sought resolution by using the direct vote and holding statewide referendums. In November 1996, California voters passed Proposition 209, which called for the elimination of affirmative action programs. Two years later, Initiative 200, which similarly ended affirmative action programs and was roughly modeled after Proposition 209, was passed by the voters in Washington state. In contrast, voters in Houston passed an initiative in favor of continuing affirmative action.

What’s next? Currently, a healthy tension exists between the use of direct and representative voting systems. The former is typically used to address important community issues, such as term limits and campaign finance reform. Referendums and initiatives have also proved to be beneficial for settling sensitive, ethical issues, such as physician-assisted suicide.

However, many observers question whether day-to-day lawmaking can be left to voters. Historically, the task of day-to-day lawmaking has been delegated by voters to elected officials. This delegation occurs every time we cast a ballot in a national election. Choosing the men and women who will make the laws for the next legislative session is every bit as important as deciding a particular issue by direct vote, and in either scenario one vote does count.

Either way, there is plenty of evidence to convince reluctant voters that one vote does count. One vote gave the United States the English language instead of German in 1776; one vote saved President Andrew Johnson from impeachment; one vote per precinct elected John F. Kennedy President of the United States; and there are many other examples.

 

An Optimistic Outlook

The picture is not entirely gloomy. More people are registered to vote, thanks in large part to The National Voter Registration Act of 1993, also known as the “Motor Voter Law.” This law makes it convenient for citizens to register to vote either by mail or at Motor Vehicle Offices (hence, its unofficial title), Public Assistance Offices, Armed Forces Offices, or certain other facilities.

Unfortunately, innovative legislation like the Motor Voter Law addresses only one half of the problem; it increases the number of citizens able to cast a ballot on election day, but it does not address the second half of getting eligible, registered citizens to the booth and voting.

In some Western democracies, voting is compulsory and failure to vote is penalized. In Belgium, for example, citizens who fail to vote can be fined. Is similar legislation mandating voting needed in the United States? The advantages and disadvantages of such legislation merit at the very least additional research and perhaps a national vote or national referendum should take place.

 

Samia J. Amamoo is Director of Community Programs for the ABA Division for Public Education in Chicago. The author wishes to thank Elizabeth M. Yang, Staff Director of the ABA Standing Committee on Election Law in Washington, D.C., for her assistance.

 

Bibliography and Websites

 

The American Bar Association, Chicago. “The Living Constitution.”

A special issue of Update featuring highlights from a symposium entitled “Afro-Americans and the Evolution of a Living Constitution,” sponsored by The Smithsonian Institute and The Joint Center for Political Studies. Fall 1988.

 

ABA Division for Public Education, Chicago. “Vote. Election 1996. What’s Old? What’s New? What’s Remarkable?” Update, Fall 1996.

 

www.aclu.org
America Civil Liberties Union. Provides information on current voting related issues, such as the Motor Voter Act.

 

www.census.gov
United States Census Bureau. Provides a wide variety of different statistics pertaining to the U.S. population, including statistics on voting and related issues.

 

www.fec.gov
Federal Election Commission. Provides official government statistics on voter registration, voter turnout, and other voting related issues.

 

www.iandrinstitute.org
The Initiative and Referendum Institute. This not-for-profit, non-partisan organization maintains a website that provides information to educate the public about the initiative and referendum process.

 

www.louisville.edu
This University of Louisville website contains a wealth of historical information on the expansion of the franchise, including the suffragist movement.

 

web.lwc.edu/adminstrative/library/suic.htm
A guide provided by Longwood College Library to print literature and websites on the issue of doctor-assisted suicide.

 

www.nationalreferendum.org
The Coalition for National Referendum. This advocacy organization maintains a website that promotes the position that “when the nation is faced with an important … issue, … a National Vote–a National Referendum–should take place.”

 

www.ohd.hr.state.or.us/cdpe/chs/pas/pas.htm
Oregon Health Division. Information and statistics on The Death with Dignity Act.

 

www.olcg.com
The National Voting Rights Museum and Institute. A museum located near the Edmund Pettus Bridge in Selma, Alabama that memorializes the struggle to expand the franchise.

 

www.splcenter.org
Southern Poverty Law Center. This website contains a wealth of information on the civil rights movement.