With the presidential election less than two weeks away, and Republican nominee Donald Trump encouraging his supporters to monitor their polling places for voter fraud — using much the same language that Republicans have consistently used to argue for restrictive voting laws — the sanctity of the election is a hot topic. It’s no wonder the rules and regulations that stand to make it harder for Americans to cast ballots are under renewed scrutiny as “the real vote rigging.”
In mainstream political conversations, these restrictions — voter identification requirements, limits on early voting, felony disenfranchisement, and the like — are almost exclusively discussed in terms of their effect on election outcomes. To be fair, that’s a newsworthy perspective and a legitimate focus of pundits and political junkies weighing the factors for and against each party’s candidates.
After all, since the 2010 midterm election, seven states have new voter identification laws that require all voters to show proof of identification in every election — all of them passed by Republican-controlled legislatures. GOP officials have even admitted that these requirements benefit them by making it more challenging for racial and ethnic minorities and the poor to vote.
Meanwhile, the Democratic Party pledges in its 2016 party platform to lift restrictions. There’s an undeniable partisan divide, and it’s nothing new. Since their formation in the United States, political parties have strategically used voting qualifications and administrative rules to exclude or include potential voters.
But rules and procedures that make it more difficult to vote have an even more important impact — one that is often missed when this issue is analyzed through the lens of horse-race analysis: Anything that makes it harder for people to cast a ballot risks depriving them of their constitutional rights.
When the conversation about restrictive voting laws focuses solely on electoral outcomes and partisan advantages and disadvantages, we can overlook the deeper and more serious issue. The potential threat to democracy is a problem much bigger than the outcome of any one election.
To understand today’s voting restrictions, you have to understand the long history of disenfranchisement
Historical perspective is helpful to understand this. Using rules to disenfranchise voters has a long history in the United States. In the early colonial era, voting rules were established by the individual colonies, and voting rights were primarily extended to adult white men who owned property. Following the American Revolution, campaigns to expand or limit the franchise were often driven by social status. While wealthy Americans wanted to restrict access to the franchise to maintain their social and economic power, the poor wanted to expand the franchise in order to ensure that they would be represented and contribute to the forming of the new nation. As political parties formed, partisan arguments for and against expanding the franchise emerged.
These preferences were often based on perceptions of which groups of potential voters would support individual parties. Citizenship, residency and tax-paying requirements, religious affiliation, felony status, and other qualifications were used to exclude the poor, women, immigrants, transients, African Americans, and American Indians. Slowly, these qualifications were eased or eliminated, allowing more individuals access to the franchise. However, voting rules continued to broadly exclude citizens with felony convictions, women, racial and ethnic minorities, and the poor.
Following the Civil War, the passage of the Reconstruction Act in 1867, which required full male suffrage, and the passage of the 13th, 14th, and 15th Amendments, many who were formerly ineligible were given the right to cast ballots. As a reaction to this expanding electorate, some states and political parties used rules and administrative procedures to disenfranchise newly eligible voters.
Poll taxes, literacy tests, Constitution interpretation tests, grandfather clauses, and white primaries were introduced into the American political system during Reconstruction (1865-1877) and the Jim Crow era (1877-1965). These laws worked in tandem to support a system of de jure (legal) discrimination and de facto (in practice) discrimination.
Laws that don’t outright prohibit voting can still violate voters’ constitutional rights
The constitutionality of the discriminatory measures that emerged during Reconstitution and Jim Crow were repeatedly challenged, and all of the above voting rules were eventually ruled unconstitutional because of their discriminatory effects.
In Guinn v. United States (1915), the Supreme Court found that constitutional provisions in the Oklahoma Constitution, which used a grandfather clause to exempt voters from the literacy test, was unconstitutional because it violated the 15th Amendment.
The constitutionality of white primaries was brought before the Supreme Court of the United States on multiple occasions. In Texas, the state legislature passed a white primary law in 1923. When the law was challenged in Nixon v. Herndon (1927), the Supreme Court ruled the statute unconstitutional because it violated the Equal Protection Clause of the 14th Amendment. Following the decision, the state legislature gave the executive committee of each state party the authority to determine the rules for primary participation. The Democratic committee adopted a provision that only allowed whites to participate in the Democratic primary. The white primary in Texas was again challenged, in Grovey v. Townsend (1935).
But the Supreme Court ruled that because political parties are private organizations that could determine their own qualifications for voting, black voters had no constitutionally protected right to vote and the white primary was not in violation of the 14th Amendment. In Smith v. Allwright (1944), the Grovey decision was overturned. The majority held that because state law made the Texas primary an integral part of the general election process, blacks could not constitutionally be prohibited from voting in the Democratic primary.
In 1964, the 24th Amendment was passed, prohibiting poll taxes in federal elections. In the same year, the Civil Rights Act was passed. In addition to outlawing discrimination based on race, color, religion, sex, or national origin and segregation in public spaces, it also eliminated the unequal application of voter registration requirements. In 1965, the Voting Rights Act (VRA) outlawed literacy tests in all jurisdictions (Section 201) and prohibited states and local jurisdictions from implementing state durational residency requirements longer than 30 days (Section 202), and any new voting laws discriminating against racial or language minorities (Section 2).
Additionally, the VRA provides provisions for specific jurisdictions. Most notably, Section 4(b) established a formula that was used to identify jurisdictions with histories of voter discrimination. Under Section 5, those jurisdictions that were identified by the formula were required to file for preclearance though the Department of Justice or the courts prior to making changes to their election and voting rules and procedures. Ruling Section 4(b) unconstitutional in Shelby v. Holder (2013), the Supreme Court held that the burden imposed on jurisdictions by Section 4 are no longer responsive to current conditions and that the coverage formula was outdated and does not reflect changes that have occurred in the past 50 years to narrow the voting and registration gap in the states under preclearance.
Prior to the passage of the Voting Rights Act in 1965, interpretation tests were ruled unconstitutional in Louisiana v. United States (1965). Delivering the majority opinion in that case, Justice Hugo Black focused on the unequal administration of the Louisiana interpretation test, asserting that the state placed “arbitrary power in the hands of election officers who have used it with phenomenal success to keep Negroes from voting in the State. The State admits that the statutes and provisions of the state constitution establishing the interpretation test ‘vest discretion in the registrars of voters to determine the qualifications of applicants for registration,’ while imposing ‘no definite and objective standards upon registrars of voters for the administration of the interpretation test.’"
Finally, poll taxes in state elections were ruled unconstitutional in Harper v. Virginia Board of Elections (1966). Delivering the majority opinion, Justice William O. Douglas stated, “…a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.”
The election rules that were adopted during Reconstruction and the Jim Crow era demonstrate that even when laws don’t expressly make it impossible for a group of people to vote, de facto discrimination or discrimination in practice can be equally as discriminatory because it indirectly affects the right of individuals to vote. This assertion has been supported by the Supreme Court, as laws that contribute to this form of discrimination have repeatedly been ruled violations of the Equal Protection Clause contained in the 14th Amendment and the 15th Amendment of the United States Constitution.
States continue to restrict access to the ballot, and courts continue to step in to protect voters
Because of the authority granted under the 10th Amendment, states continue to shape election rules. In recent years, state legislatures and governors have made dramatic changes to registration and voting rules. These rules contribute to an electoral system in which what voters experience when trying to register and vote is based on where they live.
One voting provision that has increasingly received attention is voter identification. In 2005, Indiana was the first state to implement a strict voter identification law that requires all voters to present valid government-issued photo identification every time they vote. When the statute was challenged in Crawford v. Marion County Board of Elections (2008), the voter identification law was argued unconstitutional under the Equal Protection Clause of the 14th Amendment because it would place an undue burden on minorities, students, the elderly, and the poor.
The Court, however, held that sufficient evidence was not provided to demonstrate that the law would create an undue burden on voters and that the state had sufficiently demonstrated it had an interest in implementing the law to reduce fraud, modernize election, and instill confidence in electoral outcomes.
Following the decision in Crawford, the number of voter identification laws passed by state legislatures has increased. As with the Indiana law, these laws have been challenged prior to their implementation, with varying results.
Similar to interpretation and literacy tests, voter identification laws have also come under scrutiny because of the discretion used in their administration. Research suggests that poll workers rely on their own attitudes and beliefs about the way voter identification laws should be administered, often ignoring the law. Additionally, poll workers are more likely to request voter identification from black and Hispanic voters than white voters of similar sex, education, and age, even when the law does not allow for discretion. The discretion used by poll workers in the administration of voter identification laws directly affects who is asked for identification, what type of identification is accepted, and who ultimately is allowed to vote.
The reduction or elimination of other policies that provide opportunities to register and vote and directly impact specific population groups has also been labeled discriminatory. Both early voting and same-day registration provide citizens with increased opportunity to register and vote. There are currently 37 states that allow for early voting and 13 states that allow for same-day registration. According to a report by the Brennan Center for Justice, citizens who take advantage of early voting are more likely to belong to communities of color. Similarly, Demos reports, “Same day registration assists geographically mobile, lower-income citizens, young voters and voters of color.”
Regardless, of how these individuals might vote, attempts to disenfranchise voters, even when there are no measurable effects on voter turnout, hark back to a time when de facto and de jure discrimination were the norm in the United States.
For example, in North Carolina State Conference of the NAACP v. McCrory (2016), plaintiffs argued that a law that would have created a strict voter identification requirement, reduced the number of early voting days, and eliminated same-day registration violated Section 2 of the VRA and the Equal Protection Clause of the 14th Amendment. The Fourth US Court of Appeals struck down the law because of its discriminatory intent. In writing for the court, Justice Diana Gribbon Motz described the law as “target[ing] African Americans with almost surgical precision.” Motz also referenced previous challenges brought under the Voting Rights Act that highlight the vulnerability of minority voters that stems from party polarization and the tendency for parties to target voters who are unlikely to vote for them.
Although many other challenges to laws reducing the number of early voting days, requiring voter identification, eliminating same-day registration, or changing absentee ballot procedures are still being litigated, the fact remains that the intersection of party affiliation and racial identification continues to render minority voters particularly vulnerable to discrimination, vote dilution, and violations of the Equal Protection Clause contained in the 14th Amendment of the United States Constitution.
When we evaluate the impact of restrictive voting laws, it’s these people — not the parties and candidates whom they may or may not cast ballots for — who should be the subject of our most serious concerns.