Voting rights in the United States

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U.S. Presidential popular election totals as a percentage of the total U.S. population. Note the surge in 1828 (extension of suffrage to non-property-owning white men), the drop from 1890-1910, when Southern states disenfranchised most African Americans and many poor whites, and another surge in 1920 (extension of suffrage to women).

The issue of voting rights in the United States has been fought for throughout United States history. Eligibility to vote in the United States is established both in the US Constitution and its amendments, and by state 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; in addition, states and lower level jurisdictions establish election systems, such as at-large or single member district elections for county councils or school boards.

Voting rights have also been considered an issue related to election systems, particularly since passage of the Voting Rights Act of 1965. In 1972, the US Supreme Court ruled that state legislatures had to redistrict every ten years based on census results; at that point, many had not redistricted for decades, leading to a rural bias in many states. In addition, the Supreme Court required that both houses of all state legislatures had to be based on election districts that were relatively equal in population size, under the "one man, one vote" principle. In other cases, particularly for county or municipal elections, at-large voting has been repeatedly challenged when found to dilute the voting power of significant minorities, and preventing them from electing a candidate of their choice - a violation of the Voting Rights Act. In the early 20th century, numerous cities established small commission forms of government in the belief that "better government" could result from the suppression of ward politics. Commissioners were elected by the majority of voters, excluding candidates who could not afford large campaigns or who appealed to a minority. Generally the solution to such violations has been to adopt single-member districts (SMDs) but alternative election systems, such as limited voting or cumulative voting, have also been used since the late 20th century to correct for dilution of voting power and enable minorities to elect candidates of their choice.

Background[edit]

The United States Constitution did not originally define who was eligible to vote, allowing each state to determine who was eligible. In the early history of the U.S., most states allowed only white male adult property owners to vote.[1][2][3] 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, men without property and women were largely prohibited from voting. By the time of the U.S. Civil War, most white men were allowed to vote regardless of property ownership.

Literacy tests, poll taxes, and religious tests were some of the state and local laws used in various parts of the United States to deny immigrants (including legal ones and newly naturalized citizens), non-white citizens, Native Americans, and any other locally "undesirable" groups from exercising voting rights granted under the constitution.[4]

The 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 leaves the determination of voters' qualifications to be decided by the individual states. Because of state and local discriminatory practices, 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).[5]

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 of 1913 provided for the direct election of United States Senators, increasing the representation of citizens. The US Senators were formerly elected by state legislatures.

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, even those who have served their sentences. Another example, seen in Bush v. Gore, are disputes as to what rules should apply in counting or recounting ballots.[8]

As described below, voting rights reforms have significantly expanded access to the ballot for non-Protestants, non-whites, those who lack wealth, women, and those 18–21 years old.

In the 21st century, the ranks of elected officials remain disproportionately white, wealthy, male, and older compared to the general population. Gaining political office requires different attributes than voting. For example, the 112th Congress (2010-2011) was 83% male, 8% black and 6% Hispanic (compared to 13% and 16% of these ethnicities in the population as a whole). The average age of Senators was 62 years and Representatives was 57 years (compared to a national median age of 37).[9] The median net worth of the Congressmen was $913,000, which is roughly nine times greater than the median net worth of all U.S. households.[10]

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.[11]

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 United States. 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.[16]

Throughout the 1800s, many native tribes gradually lost claim to the lands they had inhabited for centuries through the federal government's Indian Removal policy to relocate tribes from the Southeast and Northwest to west of the Mississippi River. European-American settlers continued to encroach on western lands. Only in 1879, in the Standing Bear trial, were American Indians recognized as persons in the eyes of the United States government. Judge Elmer Scipio 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 unsettled the question as to whether Native Americans were guaranteed US citizenship.[17]

Although Native Americans were born within the national boundaries of the United States, those on reservations were considered citizens of their own tribes, rather than of the United States. They were denied the right to vote because they were not considered citizens by law and were thus ineligible. Many Native Americans were told that they would become citizens if they gave up their tribal affiliations in 1887 under the Dawes Act, which allocated communal lands to individual households and was intended to aid in the assimilation of Native Americans into majority culture. This still did not guarantee their right to vote. In 1924 the remaining Native Americans, estimated at about one-third, became United States citizens. But, many western states continued to restrict Native American ability to vote through property requirements, economic pressures, hiding the polls, and condoning of physical violence against those who voted.[18] Since the late 20th century, they have been protected under provisions of the Voting Rights Act as a racial minority, and in some areas, language minority, gaining election materials in their native languages.

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.[19]

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.".[20] This was repealed by Article I, Section II. of the 1792 Constitution: "No religious test shall be required as a qualification to any office, or public trust, under this State".[21] The 1778 Constitution of the State of South Carolina stated, "No person shall be eligible to sit in the house of representatives unless he be of the Protestant religion",[22] 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".[23]

With the growth in the number of Baptists in Virginia before the Revolution, who challenged the established Anglican Church, 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."

But, in Maryland, Jewish Americans were excluded from State office until the law requiring candidates to affirm a belief in an afterlife[24] was repealed in 1828. Some[who?] have concluded that the right to vote of Jewish Americans was also impeded prior to this law[citation needed] and in violation of Article Six.

Poor whites and free African Americans[edit]

At the time of ratification of the Constitution in the late 18th century, most states had property qualifications which restricted the franchise; the exact amount varied by state, but by some estimates, more than half of white men were disenfranchised.[25] Several states granted suffrage to free men of color after the Revolution, including North Carolina. This fact was noted by Justice Benjamin Robbins Curtis' dissent in Dred Scott v. Sandford (1857), as he emphasized that blacks had been considered citizens at the time the Constitution was ratified:

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.[26]

  • In the 1820s, New York State enlarged its franchise to white men by dropping the property qualification, but maintained it for free blacks.
  • The Supreme Court of North Carolina had upheld the ability of free African Americans to vote in that state. In 1835, because of fears of the role of free blacks after Nat Turner's Slave Rebellion of 1831, they were disenfranchised by decision of the North Carolina Constitutional Convention. At the same time, convention delegates relaxed religious and property qualifications for whites, thus expanding the franchise for them.[27]
  • Alabama entered the union in 1819 with universal white suffrage provided in its constitution.

When the Fourteenth Amendment was ratified in 1866 after the Civil War, it guaranteed citizenship to all persons born or naturalized in the United States and subject to its jurisdiction. 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". The major effect of these amendments was to enfranchise African American men, the overwhelming majority of whom were freedmen in the South.[28]

After the war, some southern states passed "Black Codes", state laws to restrict the new freedoms of African Americans. They attempted to control their movement, assembly, working conditions and other civil rights. Some states also prohibited them from voting.[28]

The Fifteenth Amendment to the Constitution, one of three ratified after the American Civil War to grant freedmen full rights of citizenship, prevented any state from denying the right to vote to any citizen based on 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 white resistance to black suffrage after the war regularly erupted into violence as white groups tried to protect their power. Particularly in the South, in the aftermath of the Civil War whites made efforts to suppress freedmen's voting. In the 1860s, secret vigilante groups such as the Ku Klux Klan (KKK) used violence and intimidation to keep freedmen in a controlled role and reestablish white supremacy. But, black freedmen registered and voted in high numbers, and many were elected to local offices through the 1880s.

In the mid-1870s, the insurgencies continued with a rise in more powerful white paramilitary groups, such as the White League, originating in Louisiana in 1874 after a disputed gubernatorial election; and the Red Shirts, originating in Mississippi in 1875 and developing numerous chapters 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".[29] 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 state legislatures across the South by the late 1870s, and the federal government withdrew its troops as a result of a national compromise related to the presidency, officially ending Reconstruction.

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 in any state legislature during Reconstruction, whites still feared and resented the political power exercised by freedmen.[30] After ousting the Republicans, whites worked to restore white supremacy.

Although elections were often surrounded by violence, blacks continued to vote and gained many local offices in the late 19th century. In the late 19th century, a Populist-Republican coalition in several states gained governorships and some congressional seats in 1894. To prevent such a coalition from forming again and reduce election violence, the Democratic Party, dominant in all southern state legislatures, took action to disfranchise most blacks and many poor whites outright.

From 1890 to 1908, ten of the eleven former Confederate states completed political suppression and exclusion of these groups by ratifying new constitutions or amendments which incorporated provisions to make voter registration more difficult. These included such requirements as payment of poll taxes, complicated record keeping, complicated timing of registration and length of residency in relation to elections, with related record-keeping requirements; felony disenfranchisement focusing on crimes thought to be committed by African Americans,[31] and a literacy test or comprehension test.

Prospective voters had to prove the ability to read and write the English language to white voter registrars, who in practice applied subjective requirements. Blacks were often denied the right to vote on this basis. Even well-educated 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 and could not have fulfilled any of those conditions, 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. As a result of these measures, at the turn of the century voter rolls dropped markedly across the South. Most blacks and many poor whites were excluded from the political system for decades. Unable to vote, they were also excluded from juries or running for any office.

In Alabama, for example, its 1901 constitution restricted the franchise for poor whites as well as blacks. It contained requirements for payment of cumulative poll taxes, completion of literacy tests, and increased residency at state, county and precinct levels, effectively disenfranchised tens of thousands of poor whites as well as most blacks. Historian J. Morgan Kousser found, "They disfranchised these whites as willingly as they deprived blacks of the vote."[32] By 1941, more whites than blacks in total had been disenfranchised.[33]

Legal challenges to disfranchisement[edit]

Although African Americans quickly began legal challenges to such provisions in the 19th century, 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 societal constraints of the period at Tuskegee University, secretly helped fund and arrange representation for numerous legal challenges to disfranchisement. He called upon wealthy Northern allies and philanthropists to raise funds for the cause.[34] The Supreme Court's upholding of Mississippi's new constitution, 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.

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.

But, nearly as rapidly as the Supreme Court determined a specific provision was unconstitutional, state legislatures developed new statutes to continue disenfranchisement. For instance, 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 new restrictions on black voting; Alabama passed a law giving county registrars more authority as to which questions they asked applicants in comprehension or literacy tests. The NAACP continued with steady progress in legal challenges to disenfranchisement and segregation.

In 1957, Congress passed the Civil Rights Act of 1957 to implement the Fifteenth Amendment. It established the United States 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. Many states continued to use them in state elections as a means of reducing the number of voters.

The American Civil Rights Movement, through such events as the Selma to Montgomery marches and Freedom Summer in Mississippi, gained passage by the United States Congress of the Voting Rights Act of 1965, which authorized federal oversight of voter registration and election practices and other enforcement of voting rights. 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 helped secure an expanded and protected franchise that has benefited all Americans, including racial and language minorities.

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 has taken 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.

Legal challenges have continued under the Voting Rights Act, primarily in areas of redistricting and election systems, for instance, challenging at-large election systems that effectively reduce the ability of minority groups to elect candidates of their choice. Such challenges have particularly occurred at the county and municipal level, including for school boards, where exclusion of minority groups and candidates at such levels has been persistent in some areas of the country. This reduces the ability of women and minorities to participate in the political system and gain entry-level experience.

Women[edit]

A parallel, yet separate, movement was that for women's suffrage. Outstanding leaders of the suffrage movement included Susan B. Anthony, Elizabeth Cady Stanton, and Alice Paul. 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, the first 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 1,000 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 reliance on the Constitution. Also, in 1869 Lucy Stone and Henry Blackwell formed the American Woman Suffrage Association (AWSA). However, 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 Woman 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 to this purpose.

During the 1910s Alice Paul, assisted by Lucy Burns and many others, organized such events and organizations as the 1913 Women's Suffrage Parade, the National Woman's Party, and the Silent Sentinels. At the culmination of the suffragists' requests and protests, ratification of the Nineteenth Amendment gave women 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.[35]

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. It 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 disfranchisement 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.

Congress, when acting as State Legislature on U.S. Bases in the United States, and Washington, D.C., viewed its power as strong enough to remove all voting rights. All state and federal elections were canceled by Congress choosing to take power, and nullifying most Maryland laws. It did not pass laws to establish local voting processes in the District of Columbia. This omission of law strategy to disfranchise is contained in the Congressional debates in Annals of Congress in 1800 and 1801.

In 1986, the US Congress voted to restore voting rights on U.S. Military bases for all state and federal elections.

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 from Washington, D.C.

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 to represent it. Congress created a non-voting substitute for a U.S. Congressman, a Delegate, between 1871–1875, but then abolished that post as well. Congress permitted restoration of local elections and home rule for the District on December 24, 1973. In 1971, Congress still opposed restoring the position of a full U.S. Congressman for Washington, D.C. That year it re-established the position of non-voting Delegate to the U.S. Congress.[citation needed]

Young people[edit]

States (shown in blue) 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. Activists noted that most of the young men who were being drafted to fight in the Vietnam War were too young to have any voice in the selection of the leaders who were sending them to fight. Some states had already lowered the voting age, 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.[36] 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 defined by individual states, and the laws are different from state to state. Some states allow only individuals on probation to vote. Others allow individuals on parole and probation. As of 2012, only three states, Florida, 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.[37] However, in Kentucky, a felon's rights can be restored after the completion of a restoration process to regain civil rights.[37]

In 2007, Florida legislature restored voting rights to convicted felons who had served their sentences. In March 2011, however, Governor Rick Scott reversed the 2007 reforms. He signed legislation that permanently disenfranchises citizens with past felony convictions.[38]

In July 2005, Iowa Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who have completed supervision.[37] On October 31, 2005, Iowa's Supreme Court upheld mass reenfranchisement of convicted felons. Nine other states disenfranchise felons for various lengths of time following the completion of their probation or parole.

Other than Maine and Vermont, all U.S. states prohibit felons from voting while they are in prison.[39] In Puerto Rico, felons in prison are allowed to vote in elections.

Practices in the United States are in sharp contrast to European nations, such as Norway, which allow felons to vote after serving sentences. Some nations[40] allow prisoners to vote. Prisoners have been allowed to vote in Canada since 2002.[41]

The United States has a higher proportion of its population in prison than any other Western nation,[42] and more than Russia or China.[43] The dramatic rise in the rate of incarceration in the United States, a 500% increase from the 1970s to the 1990s,[44] has vastly increased the number of people disenfranchised 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.[44] Given the prison populations, the effects have been most disadvantageous for minority and poor communities.[45]

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).[46] 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 the equal protection clause, as granted under the Fourteenth Amendment, according to strict scrutiny.

Homeless[edit]

Obstacles homeless citizens face during voter registration[edit]

In the 1980s homelessness was recognized as an increasing national problem. By the early 21st century, there have been numerous court cases to help protect the voting rights of persons without a fixed address. 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. The states of Idaho, Maine, Minnesota, Wisconsin, and Wyoming allow voters to register on Election Day. North Dakota does not require voters to register.[47]

In the 21st century, homeless persons in all states have the right to register and vote if they satisfy other conditions. In most states, when registering to vote, homeless voters may designate any place of residence, including 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 registration each time they change locations.[48] Designating residency is needed to prove that the citizen lives within the district where he or she wishes to vote. Some states also require a mailing address in order to send out the voter ID card, which the individual must show on Election Day. Some states allow individuals to use PO Boxes as mailing addresses; other states allow the 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 such as 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 include Alaska, Connecticut, Delaware, Florida, Georgia, Idaho, Montana, New Jersey, Vermont, West Virginia, Wisconsin, and Wyoming.[49]

All potential voters face new requirements since 2002, when President Bush signed the Help America Vote Act (HAVA).[50][51] It requires voters to provide their driver’s license numbers, or the last four digits of their Social Security Number on their voter registration form. This has been enforced.

The National Coalition for the Homeless (NCH) assists nonprofit organizations, in getting lower income and homeless citizens registered to vote. In 1992, the NCH created a campaign called “You don’t need a home to vote”.[52] 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. Each state is responsible for voting regulations in their area; however, many states throughout America have adopted similar laws regarding homeless citizen voting. Disenfranchising the homeless is considered a violation of their rights under the Fourteenth Amendment's Equal Protection Clause. 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. The US district court ruled that disenfranchising homeless citizens is a direct violation of the Equal Protection clause found in the Fourteenth Amendment.

  • Pitts v. Black (1984): This case heard by the US District Court of Southern New York 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 residency required some claim (such as rent) or ownership of the area that they resided on.[53] Before the court decision was made, the Election Board relented slightly and allowed those living in shelters the right to vote.[54] The District Court defined the meaning of "residence" as any fixed location which the individual intends to inhabit regularly. This ruling encompassed all homeless, including those residing on streets and in parks.[53][55]

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

  • Collier v. Menzel (1985): The Santa Barbara District Court case 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 residence in a public park, is a violation of the Fourteenth Amendment's Equal Protection clause.[55][56]
  • Walters v. Weed (1988): In 1988, the California Supreme Court judged a case concerning voter precincts of those who are between residences. The court ruled that when a person leaves his former place of residence and has not yet settled in another permanent living place, then the individual may vote in the precinct of his former residence.[55][57]

Special interest elections[edit]

Several locales retained 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 to be paid by all residents.[11] In Ball v. James 451 U.S. 335 (1981), the Court further upheld a system of plural voting, by which votes for the board of directors of a water reclamation district were allocated on the basis of a person's proportion of land owned in the district.[11]

The Court has overseen operation of political party primaries to ensure open voting. 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, the state could not prevent a voter from voting in a party primary if the voter has voted in another party's primary in the last 23 months.[11] 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. (Tashijan v. Republican Party of Connecticut 479 U.S. 208 (1986))[58]

The Office of Hawaiian Affairs of the state of Hawaii, created in 1978, limited voting eligibility and candidate eligibility to 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., have not been apportioned a representative or US senator in Congress. Thus, since shortly after the District was created, they cannot vote in U.S. Congressional elections, or State Elections, as they do not reside in a state.

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 or home rule by 1871. It restored some home rule in 1971, but maintained the authority to 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 to 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.

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 a member to represent them in 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.[59]

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 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 Columbia to vote for and elect a representative 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. 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, the Commission concluded that the United States violates 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.[60]

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.[15] 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.[61]

A citizen who has never resided in the United States can vote if a parent is eligible to vote in certain states.[62] 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 I and Article II 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.[63][64]

As of 2010, under Igartúa v. United States, the International Covenant on Civil and Political Rights (ICCPR) is judicially considered not to be self-executing, and therefore requires further legislative action to put it into effect domestically. Judge Kermit 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 Juan R. 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 .[61]

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”.[61]

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.[65] 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. [65]

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 like Chicago, towns or villages (in Maryland) today allow noncitizen residents to vote in school or local elections.[66][19][67][68] 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".[69] Federal law states that only American citizens may vote in federal elections.[70]

See also[edit]

References[edit]

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External links[edit]