Voting rights in the United States

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The issue of voting rights in the United States has been contentious throughout United States history. Eligibility to vote in the U.S.A. is relevant at both the federal and state levels. Currently, only American citizens can vote in federal elections.[1] Who is (or who can become) a citizen is governed on a national basis by federal law. In the absence of a specific federal law or constitutional provision, each state is given considerable discretion to establish qualifications for suffrage and candidacy within its own respective jurisdiction.

Originally, the U.S. Constitution did not define which citizens could vote, and was simply built around a concept of rights of "person"—with voting not explicitly included in those rights. When founded, most U.S. states allowed only Caucasian males—who either owned property (i.e., at least 50 acres of land, usually), or, had incomes high enough to be taxed—to vote.[citation needed] Women could vote in New Jersey (provided they could meet the property requirement) and in some local jurisdictions, in other northern states. Non-white Americans could also vote in these jurisdictions, provided they could meet the property requirement. Freed slaves could vote in four states. Initially, unpropertied men and women—white citizens, slaves, and ex-slaves, alike—were largely prohibited from voting; however, by the time of the U.S. Civil War, most white men had been allowed to vote regardless of property ownership status. Literacy tests, poll taxes, and even religious tests were some of the state and local laws used in various parts of the U.S.A. to intentionally deny immigrants (including legal ones and newly naturalized citizens), non-white citizens, Native Americans, and any other locally 'undesirable' groups from exercising any voting rights that the federal government had granted them.[2]

The United States Constitution, in Article VI, clause (paragraph) 3, states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." The Constitution, however, leaves the determination of voters' qualifications to the individual states to decide. Over time, the federal role in elections has increased, through amendments to the Constitution and enacted legislation (e.g., the Voting Rights Act of 1965).[3] At least four of the fifteen post-Civil War constitutional amendments were ratified specifically to extend voting rights to different groups of citizens. These extensions state that voting rights cannot be denied or abridged based on the following:

In addition, the 17th Amendment provided for the direct election of United States Senators.

The "right to vote" is not explicitly stated in the U.S. Constitution except in the above referenced amendments, and only in reference to the fact that the franchise cannot be denied or abridged based solely on the aforementioned qualifications. In other words, the "right to vote" is perhaps better understood, in layman's terms, as only prohibiting certain forms of legal discrimination in establishing qualifications for suffrage. States may deny the "right to vote" for other reasons.

For example, many states require eligible citizens to register to vote a set number of days prior to the election in order to vote. More controversial restrictions include those laws that prohibit convicted felons from voting or, as seen in Bush v. Gore, disputes as to what rules should apply in counting or recounting ballots.[6]

As described below, voting rights reforms have significantly expanded access to the ballot for women, non-whites, non-Protestants, those who lack wealth, and those 18–21 years old. However, the ranks of elected officials remain disproportionately white, wealthy, male, and older. For example, the 112th Congress (2010-2011) was 83% male, 8% black and 6% Hispanic (compared to 13% and 16% of the population as a whole), and the average age of Senators was 62 years and Representatives was 57 years (compared to a national median age of 37).[7] And their median net worth was $913,000 which is roughly 9 times greater than the median net worth of all U.S. households.[8]

A state may choose to fill an office by means other than an election. For example, upon death or resignation of a legislator, the state may allow the affiliated political party to choose a replacement to hold office until the next scheduled election. Such an appointment is often affirmed by the governor.[9]

Milestones of national franchise extension[edit]

Removal of exclusions[edit]

Each extension of voting rights has been a product of, and also brought about, social change.

Native Americans[edit]

From 1778 to 1871, the government tried to resolve its relationship with the various native tribes by negotiating treaties. These treaties formed agreements between two sovereign nations, stating that Native American people were citizens of their tribe, living within the boundaries of the U.S. The treaties were negotiated by the executive branch and ratified by the U.S. Senate. It said that native tribes would give up their rights to hunt and live on huge parcels of land that they had inhabited in exchange for trade goods, yearly cash annuity payments, and assurances that no further demands would be made on them. Most often, part of the land would be "reserved" exclusively for the tribe's use.[14]

Throughout the 1800s, many native tribes gradually lost claim to the lands they had inhabited for centuries. Only in 1879, in the Standing Bear trial, American Indians were even recognized as persons in the eyes of the United States government. Judge Dundy of Nebraska declared that Indians were people within the meaning of the laws, and they had the rights associated with a writ of habeas corpus. However, Judge Dundy left the unsettled question whether Native Americans were guaranteed citizenship.[15]

Even though Native Americans were born in the United States, they were denied the right to vote because they were not considered citizens by law and were ineligible to vote. Many Native Americans were told that they would become citizens if they gave up their tribal affiliations in 1887, but this still did not guarantee their right to vote. It was only in 1924 that many became United States citizens. However, many western states continued to deny the right to vote through property requirements, economic pressures, hiding the polls, and condoning of physical violence against those who voted.[16]

Religious test[edit]

In several British North American colonies, before and after the 1776 Declaration of Independence, Jews, Quakers and/or Catholics were excluded from the franchise and/or from running for elections.[17]

The Delaware Constitution of 1776 stated that "Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office, shall (...) also make and subscribe the following declaration, to wit: I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.".[18] This was repealed by article I, section 2. of the 1792 Constitution: "No religious test shall be required as a qualification to any office, or public trust, under this State.".[19] The 1778 Constitution of the State of South Carolina stated that "No person shall be eligible to sit in the house of representatives unless he be of the Protestant religion",[20] the 1777 Constitution of the State of Georgia (art. VI) that "The representatives shall be chosen out of the residents in each county (...) and they shall be of the Protestant religion".[21]

With the growth in the number of Baptists in Virginia before the Revolution, the issues of religious freedom became important to rising leaders such as James Madison. As a young lawyer, he defended Baptist preachers who were not licensed by (and were opposed by) the established state Anglican Church. He carried developing ideas about religious freedom to be incorporated into the constitutional convention of the United States.

In 1787, Article One of the United States Constitution stated that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature". More significantly, Article Six disavowed the religious test requirements of several states, saying: "[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."[I]n 1810 the Last religious prerequisite for voting is eliminated:

In Maryland, voting rights and eligibility as candidates were extended to Jewish Americans in 1828.[22]

African Americans and poor whites[edit]

At the time of ratification of the Constitution, most states had property qualifications which restricted the franchise; the exact amount varied by state, but by some estimates, over half of white men were disfranchised.[23] In some states, free men of color (though the property requirement in New York was eventually dropped for whites but not for blacks) also possessed the vote, a fact that was emphasized in Justice Curtis's dissent in Dred Scott v. Sandford:

Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.[24]

When the Fourteenth Amendment was passed in 1866, it guaranteed citizenship to all persons born or naturalized in the United States and subject to its jurisdiction. Then, in 1869, the Fifteenth Amendment prohibited government from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude". One effect of these amendments was to enfranchise African American men.[25]

Furthermore, the year 1869 marked the beginning of "Black Codes," or state laws that restricted the freedoms of African Americans. Among those freedoms restricted was the freedom to exercise the right to vote. These restrictions were enforced by literacy tests, poll taxes, hiding the locations of the polls, economic pressures, and threats of physical violence.[25]

The Supreme Court of North Carolina upheld the ability of free African Americans to vote before they were disfranchised by decision of the North Carolina Constitutional Convention of 1835. At the same time, convention delegates relaxed religious and property qualifications for whites.[26] Alabama entered the union in 1819 with universal white suffrage provided for in its constitution. Its actions in the late 19th century disfranchised poor whites as well as blacks.

The Fifteenth Amendment to the Constitution, one of three adopted in response to the American Civil War, prevented any state from denying the right to vote to any citizen on account of his race. This was primarily related to protecting the franchise of freedmen, but it also applied to non-white minorities such as Mexican Americans in Texas. The state governments under Reconstruction adopted new state constitutions or amendments designed to protect the ability of freedmen to vote. The resistance to black suffrage after the war regularly erupted into violence as groups tried to protect their power. Particularly in the South, in the aftermath of the Civil War, whites started working to limit the ability of freedmen to vote. In the 1860s, secret vigilante groups like the Ku Klux Klan (KKK) used violence and intimidation to keep freedmen in a controlled role and reestablish white supremacy. Nonetheless, black freedmen registered and voted in high numbers, and many were elected to local offices through the 1880s.

In the mid-1870s, there was a rise in more powerful paramilitary groups, such as the White League, originating in Louisiana in 1874 after a disputed election; and the Red Shirts, originating in Mississippi in 1875 and growing in North and South Carolina; as well as other "White Line" rifle clubs. They operated openly, were more organized than the KKK, and directed their efforts at political goals: to disrupt Republican organizing, turn Republicans out of office, and intimidate or kill blacks to suppress black voting. They worked as "the military arm of the Democratic Party."[27] For instance, estimates were that 150 blacks were killed in North Carolina before the 1876 elections. Economic tactics such as eviction from rental housing or termination of employment were also used to suppress the black vote. White Democrats regained power in the South by the late 1870s. Thereafter, the legislators worked to create more complicated voter registration or election requirements, which more severely reduced black voting.

African Americans were a majority in three southern states following the Civil War, and represented over 40% of the population in four other states. While they did not elect a majority of African Americans to office during Reconstruction, whites feared and resented the political power which they exercised.[28] After ousting the Republicans, whites worked to restore white supremacy.

From 1890 to 1908, ten of the eleven former Confederate states completed political suppression by ratifying new constitutions or amendments which incorporated provisions to disfranchise blacks and poor whites. These included such methods as a poll tax, record keeping, timing of registration in relation to elections, felony disenfranchisement focusing on crimes thought to be committed by African Americans,[29] complex residency requirements, and a literacy test. Focusing on both blacks and poor whites ensured that there would be no coalition between them as had arisen in the elections of 1894, when Populist-Republican tickets wrested power away from Democrats. Prospective voters had to prove the ability to read and write the English language to white voter registrars, who in practice used subjective requirements. Blacks were often denied the right to vote on this basis. Even literate blacks were often told they had "failed" such a test, if in fact, it had been administered. On the other hand, illiterate whites were sometimes allowed to vote through a "grandfather clause" which waived literacy requirements if one's grandfather had been a qualified voter before 1866, or had served as a soldier, or was from a foreign country. As most blacks had grandfathers who were slaves before 1866, they could not use the grandfather clause exemption. Selective enforcement of the poll tax was frequently also used to disqualify black and poor white voters.

African Americans quickly began legal challenges to such provisions in the 19th century, but it was years before any were successful before the U.S. Supreme Court. Booker T. Washington, better known for his public stance of trying to work within constraints at Tuskegee University, secretly helped fund and arrange representation for numerous legal challenges to disfranchisement. He called upon Northern allies to raise funds for the cause.[30] The Supreme Court's upholding of Mississippi's provisions, in Williams v. Mississippi (1898), encouraged other states to follow the Mississippi plan of disfranchisement. African Americans brought other legal challenges, as in Giles v. Harris (1903) and Giles v. Teasley (1904), but the Supreme Court upheld Alabama constitutional provisions. In 1915 Oklahoma was the last state to append a grandfather clause to its literacy requirement due to Supreme Court cases. In Guinn v. United States the Supreme Court rules that the clause is in conflict with the 15th Amendment, therefore the literacy test was unconstitutional.

From early in the 20th century, the newly established National Association for the Advancement of Colored People (NAACP) took the lead in organizing or supporting legal challenges to segregation and disfranchisement. Gradually they planned the strategy of which cases to take forward. In Guinn v. United States (1915), the first case in which the NAACP filed a brief, the Supreme Court struck down the grandfather clause in Oklahoma and Maryland. Other states in which it was used had to retract their legislation as well. The challenge was successful.

Nearly as rapidly as the Supreme Court determined a specific provision was unconstitutional, however, state legislatures developed new statutes to continue to disfranchise African Americans, minorities and poor whites. In Smith v. Allwright (1944), the Supreme Court struck down the use of state-sanctioned all-white primaries by the Democratic Party in the South. States developed still other restrictions on black voting. The NAACP continued with steady progress in legal challenges to disfranchisement and segregation. It was in 1957 that the first law to implement the 15th amendment, the Civil Rights Act, was passed. The Act set up the Civil Rights Commission—among its duties is to investigate voter discrimination.

As late as 1962, programs such as Operation Eagle Eye in Arizona attempted to stymie minority voting through literacy tests. The 24th Amendment was ratified in 1964 to prohibit poll taxes as a condition of voter registration and voting in federal elections. Full enfranchisement of citizens was not secured until after the American Civil Rights Movement gained passage by the United States Congress of the Voting Rights Act of 1965. Congress passed the legislation because it found "case by case litigation was inadequate to combat widespread and persistent discrimination in voting." Activism by African Americans thus helped secure an expanded and protected franchise that benefited all Americans.

The bill provided for federal oversight, if necessary, to ensure just voter registration and election procedures. The rate of African American registration and voting in Southern states climbed dramatically and quickly, but it took years of federal oversight to work out the processes and overcome local resistance. In addition, it was not until the U.S. Supreme Court ruled 6-3 in Harper v. Virginia Board of Elections (1966) that all state poll taxes (for both state and federal elections) were officially declared unconstitutional as violating the Equal Protection Clause of the Fourteenth Amendment. This removed a burden on the poor.

Women[edit]

A parallel, yet separate, movement was that for women's suffrage. Outstanding leaders of the suffrage movement included Susan B. Anthony and Elizabeth Cady Stanton. In some ways this, too, could be said to have grown out of the American Civil War, as women had been strong leaders of the abolition movement. Middle- and upper-class women generally became more politically active in the northern tier during and after the war.

In 1848, the Seneca Falls Convention, an early and influential women’s rights convention, was held in Seneca Falls, New York. Of the 300 present, 68 women and 32 men signed the Declaration of Sentiments which defined the women's rights movement. The first National Women's Rights Convention took place in 1850 in Worcester, Massachusetts, attracting more than 1000 participants. This national convention was held yearly through 1860.

When Susan B. Anthony and Elizabeth Cady Stanton formed the National Women Suffrage Association, their goal was to help women gain voting rights through the Constitution. Also, in 1869 Lucy Stone and Henry Blackwell formed the American Women Suffrage Association (AWSA). However, the (AWSA) focused on gaining voting rights for women through the amendment process. Although these two organization were fighting for the same cause it was not until 1890 that they merged to form the National American Women Suffrage Association (NAWSA). After the merger of the two organizations, the (NAWSA) waged a state-by-state campaign to obtain voting rights for women.

Wyoming was the first state in which women were able to vote, although it was a condition of the transition to statehood. Utah was the second territory to allow women to vote, but the federal Edmunds–Tucker Act of 1887 repealed woman's suffrage in Utah. Colorado was the first established state to allow women to vote on the same basis as men. Some other states also extended the franchise to women before the Constitution was amended. With ratification of the Nineteenth Amendment, women were granted the right to vote in time to participate in the Presidential election of 1920.

Another political movement that was largely driven by women in the same era was the anti-alcohol Temperance movement, which led to the Eighteenth Amendment and Prohibition.[31]

Washington, D.C.[edit]

Washington, D.C., was created from a portion of the states of Maryland and Virginia in 1801. The Virginia portion was retroceded (returned) to Virginia upon request of the residents, by an Act of Congress in 1846 to protect slavery, and restore state and federal voting rights in that portion of Virginia. When the Congress took control of Maryland Lands to create a national capital, Congress did not continue Maryland Voting Laws, and canceled all state and federal elections starting with 1802. Local elections limped on in some neighborhoods, until 1871, when local elections were also forbidden by the U.S. Congress. The U.S. Congress is the National Legislature. Under Article I, Section 8, Clause 17, Congress can also be the State Legislature. This is because under the "Exclusive Legislature" language from I-8-17, Congress is both State and National Legislature for U.S. Military Bases and the District of Columbia, but a State Legislature must explicitly agree to transfer that States Right to Congress in these Federal Lands. Active disenfranchisement is typically a States Rights Legislative issue, where the removal of voting rights is permitted. At the national level, the federal government typically ignored voting rights issues, or affirmed that they were extended. The U.S. Congress simply ignored disenfranchisement by Southern States before and after the Civil War.[citation needed]

Congress, when acting as State Legislature on U.S. Bases in the U.S., and Washington, D.C., viewed its power as strong enough to remove all voting rights, like the Southern State Legislatures. All state and federal elections were canceled by Congress choosing to take power, nullifying most Maryland laws, and actively omitting repassing Maryland state voting laws in the District of Columbia. This omission of law strategy to disenfranchise is not in the Statutes at Large, but rather in the Congressional debates in Annals of Congress in 1800 and 1801. U.S. Military bases were restored voting rights for all state and federal elections, the same way they were disenfranchised, by simple law of US Congress, in 1986. But Washington, D.C., had to ratify Amendment 23, in 1961, to restore U.S. Presidential Elections for Washington, D.C., citizens in 1964, after a 164-year gap. Amendment 23 is the only known limit to U.S. Congressional powers, forcing Congress to enforce Amendments 14, 15, 19, 24, and 26 for the first time in Presidential elections. The Maryland citizens and territory converted in Washington, D.C., in 1801 were represented in 1801 by U.S. Rep. John Chew Thomas from Maryland's 2nd, and U.S. Rep. William Craik from Maryland's 3rd Congressional Districts. These Maryland U.S. Congressional Districts were redrawn and removed Washington, D.C., and no full Congressional elections have been held since in D.C., a gap continuing since 1801. The 17th Amendment permitting direct elections of U.S. Senators has never been enforced in Washington, D.C., nor does D.C. have a U.S. Senator, since 1801 when it last voted with Maryland. After a 100 to 190 years gap in various parts of the City, Congress permitted restoration of local elections on December 24, 1973. Congress created a non-voting substitute for a U.S. Congressman, a Delegate, between 1871–1875, but then abolished that post as well. In 1971, Congress still opposed to restoring a full U.S. Congressman for Washington, D.C., instead reestablished this non-voting Delegate to the U.S. Congress, and has yet to abolish that substitute post.[citation needed]

Young people[edit]

States (shown in purple) allow 17-year-olds to vote in primaries/caucuses if their 18th birthday is before the actual election.

A third voting rights movement was won in the 1960s to lower the voting age from twenty-one to eighteen. This movement was given far greater impetus by the Vietnam War, as it was noted that most of the young men who were being drafted to fight in it were too young to have any voice in the selection of the leaders who were sending them to fight. This, too, had previously been a state issue, as several states, notably Georgia, Kentucky, and Hawaii, had already allowed voting at a younger age than twenty-one. The Twenty-sixth Amendment, ratified in 1971, required all states to set a voting age no higher than eighteen. As of 2008, no state has opted for an earlier age, although some state governments have discussed it.[32] Some states, however, permit people who will be 18 on or before the general election to vote in primary elections and caucuses.

Prisoners[edit]

Prisoner voting rights are a state issue, so the laws are different from state to state. Some states allow only individuals on probation. Others allow individuals on parole and probation. As of 2011, only two states, Kentucky and Virginia, continue to impose a lifelong denial of the right to vote to all citizens with a felony record, absent a restoration of rights granted by the Governor or state legislature.[33] However, in Kentucky, a felon's rights can now be restored after the completion of a restoration process to regain civil rights.[33] In 2007, Florida moved to restore voting rights to convicted felons. In March 2011, however, Governor Rick Scott reversed the 2007 reforms, making Florida the state with the most punitive law in terms of disenfranchising citizens with past felony convictions.[34] In July 2005, Iowa Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who have completed supervision.[33] On October 31, 2005, Iowa's Supreme Court upheld mass re-enfranchisement of convicted felons. Nine other states disenfranchise felons for various lengths of time following the completion of their probation or parole. Except Maine and Vermont, every state prohibits felons from voting while in prison.[33] Only two states, Maine and Vermont, allow incarcerated felons to vote.[35] In Puerto Rico, felons in prison are allowed to vote in elections. This is in sharp contrast to European nations, like Norway, which allow felons to vote after serving sentences and in some cases[36] allow prisoners to vote. Prisoners have been allowed to vote in Canada since 2002.[37]

The United States has a higher proportion of its population in prison than any other Western nation,[38] and more than Russia or China.[39] The dramatic rise in the rate of incarceration in the United States, a 500% increase from the 1970s to the 1990s due to criminalization of certain behaviors, strict sentencing guidelines and changes in philosophy, has vastly increased the number of people disfranchised because of the felon provisions. According to the Sentencing Project, as of 2010 an estimated 5.9 million Americans are denied the right to vote because of a felony conviction, a number equivalent to 2.5% of the U.S. voting age population and a sharp increase from the 1.2 million people affected by felony disenfranchisement in 1976.[40] Given the prison populations, the effects have been most disadvantageous for minority and poor communities.[41]

Durational residency[edit]

The Supreme Court of the United States struck down one-year residency requirements to vote in Dunn v. Blumstein 405 U.S. 330 (1972).[42] The Court ruled that limits on voter registration of up to 30 to 50 days prior to an election were permissible for logistical reasons, but that residency requirements in excess of that violated equal protection as granted under the Fourteenth Amendment according to strict scrutiny.

Homeless[edit]

Obstacles homeless citizens face during voter registration[edit]

In the 1980s when homelessness became an increasing national problem, the states did not adequately address the issues that occur for voters registering without a home. Today there have been numerous court cases to help protect the voting rights of individuals without a home. Low income and homeless citizens face some obstacles in registering to vote. These obstacles include establishing residency, providing a mailing address, and showing proof of identification. A residency requirement varies from state to state. States cannot require citizens to show residency of more than 30 days before Election Day. Some states such as: Idaho, Maine, Minnesota, Wisconsin, and Wyoming allow voters to register on Election Day. North Dakota does not require voters to register.[43] Today, homeless individuals in all states have the right to register and vote. In most states, when registering to vote homeless voters only need to designate their place of residence, which can be a street corner, a park, a shelter, or any other location where an individual stays at night. A citizen may only have one residency during registration, but they may switch their residency each time they change locations.[44] Acquiring residency is needed to prove that the citizen lives within the district he or she wishes to vote in. Some states also need a mailing address to send out the voter ID card, which that individual will have to show on Election Day. Some states will allow individuals to use PO Boxes; other states allow the provided address to be that of a local shelter, advocacy organization, outreach center, or anywhere else that accepts mail on behalf of a person registering to vote. States like Arizona and Nebraska allow homeless citizens to use county court houses or county clerks’ offices as mailing address.

States that do not require a mailing address[edit]

  • Alaska,
  • Connecticut,
  • Delaware,
  • Florida,
  • Georgia,
  • Idaho,
  • Montana,
  • New Jersey,
  • Vermont,
  • West Virginia,
  • Wisconsin, and
  • Wyoming[45]

Homeless individuals face another obstacle during voter registration, they must now provide their driver’s license number, or the last four digits of their Social Security Number on their voter registration form. This has been enforced since 2002, when President Bush passed the Help America Vote Act (HAVA).[46] This law was passed as a reaction to the growing election administrative problems. HAVA was set up as a solution because of the issues of the 2000 election.[47]

The National Coalition for the Homeless (NCH) assists nonprofit organizations, in getting lower income and homeless citizens registered to vote. In 1992, the NCH set up a campaign called “You don’t need a home to vote.”[48] This campaign provided useful resources and guidelines for nonprofit organizations to follow when assisting citizens to register. Nonprofits, like homeless shelters and food banks set up a voter registration party to help homeless citizens to register. The nonprofit workers must remain nonpartisan, when assisting in the registration process.

Court Cases Involving Homeless Voting[edit]

Voting rights of the American homeless is an issue that has been addressed in the courts since the 1980s. Every state is responsible for voting regulations in their area; however, many states throughout America have adopted similar laws regarding homeless citizen voting. It is nationally considered that disenfranchising the homeless is a violation of their rights written in the United States Constitution under the Fourteenth Amendment's Equal Protection clause. The clause states that all American citizens are entitled to the same rights and that no law can be made that denies someone a right or discriminates against a person or group of persons. Many arguments have been made against homeless people being able to vote. Their status of true citizenship has been called into question because of their lack of residency. However, the courts have ruled on more than one occasion in favor of the homeless voting.

One of the first court cases regarding homeless voting was Pitts v. Black in New York. This case established the important fact that disenfranchising homeless citizens is a direct violation of the Equal Protection clause found in the Fourteenth Amendment.

Pitts v. Black: This 1984 New York District Court case involved the New York Election Board and homeless individuals assisted by the Coalition for the Homeless, among others. The Election Board denied the individuals the right to vote because they resided on the street or in shelters. The Election Board contended that, to be a resident, one had to have some claim or ownership of the area that they resided on.[49] Before the court decision was made, the Election Board relented slightly and allowed those living in shelters the right to vote.[50] The District Court went further than this and defined the meaning of residence as any fixed location where the individual intends to inhabit regularly. This ruling encompassed all homeless, including those residing on streets and in parks.[49][51]

Two court rulings in California, Collier v. Menzel, and Walter v. Weed, also addressed the residency question of homeless voters:

Collier v. Menzel: The Santa Barbara District Court case of 1985 established that a residence could be a certain location rather than a specific address. Howard Menzel, the county clerk, rejected three voter registration applications on the grounds that proper addresses were not provided. The applications simply stated a public park as the applicants' residence. The court overruled the clerk's decision and defined a residence as any fixed location where a person habitually sleeps and where living quarters are set up. In their final decisions, the court stated that denying a citizen the right to vote due to the fact that their residence is a public park, is a violation of the Fourteenth Amendment's Equal Protection clause.[51][52]

Walter v. Weed: In 1988, the California Supreme Court judged a case concerning voter precincts of those that no longer have a home. The court ruled that when a person leaves his former place of residence and has not yet stationed himself in another permanent living place, then the individual may vote in the precinct of his former residence.[51][53]

Special interest elections[edit]

Even after the above restrictions on the franchise were lifted for general elections, several locales retained similar restrictions for specialized local elections, such as for school boards, special districts, or bond issues. Property restrictions, duration of residency restrictions, and, for school boards, restrictions of the franchise to voters with children remained in force. In a series of rulings from 1969 to 1973, the Court ruled that the franchise could be restricted in some cases to those "primarily interested" or "primarily affected" by the outcome of a specialized election, but not in the case of school boards or bond issues, which affected taxation of all residents.[9] In Ball v. James 451 U.S. 335 (1981) the Court further upheld a system of plural voting where votes for the board of directors of a water reclamation district were allocated on the basis of the area of land owned in the district.[9]

The Court placed restrictions on party political primaries as well. While states were permitted to require voters to register for a political party 30 days before an election, or to require them to vote in only one party primary, they were not allowed to prevent a voter from voting in a party primary if the voter has voted in another party's primary in the last 23 months.[9] The Court also ruled that a state may not mandate a 'closed primary' system and bar independents from voting in a party's primary against the wishes of the party itself. (Tashijan v. Republican Party of Connecticut 479 U.S. 208 (1986))[54]

The Office of Hawaiian Affairs of the state of Hawaii, created in 1978, limited voting eligibility and candidate eligibility to the native Hawaiians on whose behalf it manages 1,800,000 acres (7,300 km2) of ceded land. The Supreme Court of the United States struck down the franchise restriction under the Fifteenth Amendment in Rice v. Cayetano 528 U.S. 495 (2000), following by eliminating the candidate restriction in Arakaki v. State of Hawai‘i a few months later.

Current status[edit]

Adult citizens of the United States who are residents of one of the 50 states or sometimes the District of Columbia may not be restrained from voting for a variety of protected reasons, stated in the aforementioned 15th, 19th, 24th and 26th Amendments.

District of Columbia[edit]

Citizens of the nation's capital, Washington, D.C., are no longer permitted to vote in U.S. Congressional elections, nor State Elections. On military bases, where Congress acting as both national and State Legislature similarly disenfranchised U.S. Citizens, Congress passed a law in 1986, permitting restoration of all voting rights in the State contributing land for the base. Washington, D.C. was not included in that 1986 simple law. District of Columbia citizens had voting rights removed in 1801 by Congress, when Congress took control of that portion of Maryland. Congress incrementally removed effective local control by 1871, and restored some local control in 1971, but can override any local laws. Washington, D.C. does not have full representation in the U.S. House or Senate. The Twenty-third Amendment, restoring U.S. Presidential Election after a 164-year-gap, is the only known limit to Congressional "exclusive legislature" from Article I-8-17, forcing Congress to enforce for the first time Amendments 14,15,19, 24, and 26. Amendment 23 gave the District of Columbia three electors and hence the right to vote for President, but not full U.S. Congressmembers nor U.S. Senators. In 1978, Congress proposed a constitutional amendment that would have restored the District a full seat for representation in the Congress as well. This amendment failed to receive ratification by sufficient number of states within the seven years required.

Since then, Congress has consistently refused to offer for ratification a constitutional amendment that would restore District of Columbia residents either representation in both the Senate and the House, as if the District were a military base or state, or, as has also been proposed, voting representation in the House only. Additionally, Congress has continued to use its constitutional jurisdiction over the District "in all cases whatsoever" to countermand the expressed will of District voters through laws passed by their local elected officials. For this reason, many Washington residents call their city "The Last Colony", the home of "taxation without representation".

As of 2013, a bill is pending in Congress that would treat the District of Columbia as “a congressional district for purposes of representation in the House of Representatives,” and permit United States citizens residing in the capital to vote for members of the House of Representatives. The District of Columbia House Voting Rights Act, S. 160, 111th Cong. was passed by the U.S. Senate on February 26, 2009, by a vote of 61-37.[55]

On April 1, 1993, the Inter-American Commission on Human Rights of the Organization of American States received a petition from Timothy Cooper on behalf of the Statehood Solidarity Committee (the “Petitioners”) against the government of the United States (the “State” or “United States”). The petition indicated that it was presented on behalf of the members of the Statehood Solidarity Committee and all other U.S. citizens resident in the District of Columbia. The petition also alleged that the United States was responsible for violations of Articles II (right to equality before law) and XX (right to vote and to participate in government) of the American Declaration of the Rights and Duties of Man in connection with the inability of citizens of the District of Colombia to vote for and elect members to the U.S. Congress. On December 29, 2003, The Inter-American Commission on Human Rights having examined the information and arguments provided by the parties on the question of admissibility, and without prejudging the merits of the matter, the Commission decided to admit the present petition in respect of Articles II and XX of the American Declaration. In addition, after having examined the merits of the Petitioners’ claims, the Commission concluded that the State is responsible for violations of the Petitioners’ rights under Articles II and XX of the American Declaration of the Rights and Duties of Man by denying District of Columbia citizens an effective opportunity to participate in their federal legislature.[56]

Overseas and nonresident citizens[edit]

U.S. citizens residing overseas who would otherwise have the right to vote are guaranteed the right to vote in federal elections by the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986.[13] As a practical matter, individual states implement UOCAVA.

U.S. citizens who reside in Puerto Rico, Guam, Northern Mariana Islands, or the United States Virgin Islands are not allowed to vote in U.S. national and presidential elections as these U.S. territories belong to the United States but are not part of the United States. The U.S. Constitution requires a voter to be resident in one of the 50 states or in the District of Columbia to vote in federal elections. To say that the Constitution does not require extension of federal voting rights to U.S. territories residents does not, however, exclude the possibility that the Constitution may permit their enfranchisement under another source of law.[57]

A citizen who has never resided in the United States can vote if a parent is eligible to vote in certain states.[58] In some of these states the citizen can vote in local, state and federal elections, in others in federal elections only.

Puerto Rico[edit]

Puerto Rico is an insular area — a United States territory that is neither a part of one of the fifty states nor a part of the District of Columbia, the nation's federal district. Insular areas, such as Puerto Rico, the U.S. Virgin Islands and Guam, are not allowed to choose electors in U.S. presidential elections or elect voting members to the U.S. Congress. This grows out of Article one and Article two of the United States constitution, which specifically mandate that electors are to be chosen by "the People of the several States". In 1961, the 23rd amendment to the constitution extended the right to choose electors to the District of Columbia.

Any U.S. citizen who resides in Puerto Rico (whether a Puerto Rican or not) is effectively disenfranchised at the national level. Although the Republican Party and Democratic Party chapters in Puerto Rico have selected voting delegates to the national nominating conventions participating in U.S. Presidential Primaries or Caucuses, U.S. citizens not residing in one of the 50 states or in the District of Columbia may not vote in federal elections.

Various scholars (including a prominent U.S. judge in the United States Court of Appeals for the First Circuit) conclude that the U.S. national-electoral process is not fully democratic due to U.S. government disenfranchisement of U.S. citizens residing in Puerto Rico.[59][60]

As of 2010, under Igartua v. United States, the International Covenant on Civil and Political Rights (CCPR) is judicially considered not to be self-executing, and therefore requires further legislative action to put it into effect domestically. Judge Lipez wrote in a concurring opinion, however, that the en banc majority's conclusion that the ICCPR is non-self-executing is ripe for reconsideration in a new en banc proceeding, and that if issues highlighted in a partial dissent by Judge Torruella were to be decided in favor of the plaintiffs, United States citizens residing in Puerto Rico would have a viable claim to equal voting rights .[57]

Congress has in fact acted in partial compliance with its obligations under the ICCPR when, in 1961, just a few years after the United Nations first ratified the ICCPR, it amended our fundamental charter to allow the United States citizens who reside in the District of Columbia to vote for the Executive offices. See U.S. Constitutional Amendment XXIII.51. Indeed, a bill is now pending in Congress that would treat the District of Columbia as “a congressional district for purposes of representation in the House of Representatives,” and permit United States citizens residing in the capitol to vote for members of the House of Representatives. See District of Columbia House Voting Rights Act, S.160, 111th Congress (passed by the Senate, February 26, 2009) (2009).52  However, the United States has not taken similar “steps” with regard to the five million United States citizens who reside in the other U.S. territories, of which close to four million are residents of Puerto Rico. This inaction is in clear violation of the United States' obligations under the ICCPR.”.[57]

Accessibility[edit]

Federal legislation such as the Americans with Disabilities Act of 1990 (ADA), the National Voter Registration Act of 1993 (NVRA, or "Motor-Voter Act") and the Help America Vote Act of 2001 (HAVA) help to address some of the concerns of disabled and non-English speaking voters in the United States.

Some studies have shown that polling places are inaccessible to disabled voters.[61] The Federal Election Commission reported that, in violation of state and federal laws, more than 20,000 polling places across the nation are inaccessible, depriving people with disabilities of their fundamental right to vote.

In 1999, the Attorney General of the State of New York ran a check of polling places around the state to see if they were accessible to voters with disabilities and found many problems.[citation needed] A study of three upstate counties of New York found fewer than 10 percent of polling places fully compliant with state and federal laws, and the rest not.[citation needed]

Many polling booths are set in church basements or in upstairs meeting halls where there are no ramps or elevators. This means problems not just for people who use wheelchairs, but for people using canes or walkers too. And in most states people who are blind do not have access to Braille ballot to vote; they have to bring someone along to vote for them. Studies have shown that people with disabilities are more interested in government and public affairs than most and are more eager to participate in the democratic process. [61]

Candidacy requirements[edit]

Jurisprudence concerning candidacy rights and the rights of citizens to create a political party are less clear than voting rights. Different courts have reached different conclusions regarding what sort of restrictions, often in terms of ballot access, public debate inclusion, filing fees, and residency requirements, may be imposed.

In Williams v. Rhodes (1968), the United States Supreme Court struck down Ohio ballot access laws on First and Fourteenth Amendment grounds. However, it subsequently upheld such laws in several other cases. States can require an Independent or minor party candidate to collect signatures as high as five percent of the total votes cast in a particular preceding election before the court will intervene.

The Supreme Court has also upheld a State ban on cross-party endorsements (also known as electoral fusion) and primary write-in votes.

Noncitizens[edit]

More than 40 states or territories, including colonies before the Declaration of Independence, have at some time allowed noncitizens who satisfied residential requirements to vote in some or all elections. This in part reflected the strong continuing immigration to the United States. Some cities (Chicago), towns or villages (in Maryland) today allow noncitizen residents to vote in school or local elections.[62][17][63][64] In 1874, the Supreme Court in Minor v. Happersett noted that "citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote."[65]

See also[edit]

References[edit]

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External links[edit]