VOTING RIGHTS

1. VOTING RIGHTS

2. Constitutional Amendments Expanding the Right to Vote • Originally, the right to vote was limited to white male property owners (and to Christians in some jurisdictions) • Constitution originally gave states the power to determine qualifications for “electors” (voters) • There was no specific “right to vote” under the original Constitution • 15th Amendment (1870): Barred discrimination in voting on the basis of race, color or previous condition of servitude (slavery). • The 14th and 15th Amendments are the first time that a “right to vote” is mentioned in the Constitution.

3. Constitutional Amendments Expanding the Right to Vote • 17th Amendment (1913): Senators elected by popular vote. • 19th Amendment (1920): Barred discrimination in voting on the basis of sex. • Women already had the right to vote in some states: • The Wyoming Territory granted women the right to vote in 1869. This was the first jurisdiction in the US to do so.

4. The Utah Territory granted women the right to vote in 1870, but it was subsequently repealed by Congress. • When Utah sought admission as a state in 1896, one condition imposed by Congress was that women not be given the right to vote. • Utah agreed to this provision, was admitted to the Union, and then restored women’s voting rights (nothing Congress could do about it after they were admitted as a state).

5. Constitutional Amendments Expanding the Right to Vote • 23rd Amendment (1961): The District of Columbia is given representation in the Electoral College. • 24th Amendment (1964): Abolished the poll tax as a requirement for voting in federal elections. • 26thAmendment (1971): Lowered the voting age to 18. • Now, almost all citizens 18 and older have the right to vote in all elections.

6. Methods of Restricting Voting • Literacy test • Requirement to read and interpret a section of the Constitution to the satisfaction of the voting registrar • Selectively enforced against black voters, also disenfranchised many illiterate whites • Poll tax • White primary • If the party is a “private organization,” they can restrict their activities to “members.” These “activities” include voting in the party primary, which was the decisive election in the one-party Democratic South. • Outlawed by the Supreme Court in Smith v. Allwright (1944).

7. Methods of Restricting Representation • Malapportionment: Drawing district lines so that populations are grossly unequal in number; people in the larger district will be underrepresented • One state legislative district in Tennessee contained ten times as many people as another • US Supreme Court decisions on malapportionment: • Baker v. Carr (1962) introduced the concept of “vote dilution”: One person’s vote must count equally to another’s • Reynolds v. Sims (1964): both houses of a state legislature must be based on population • Wesberry v. Sanders (1964): US House districts within a state must be equal in population • Gerrymandering (creative district drawing) • “Cracking, packing and stacking” (see Welch)

8. Voting Rights Legislation • Voting Rights Act of 1965 • Suspended literacy tests • Permanently banned practices used to discriminate on the basis of race • Provided for federal registrars in jurisdictions with literacy tests or similar devices and where less than 40% of eligible citizens voted in 1964 Presidential election • Requires Department of Justice preclearance (approval) of changes in voting practices in covered areas • Primarily targeted at the South but as a result of expansion of its provisions, now includes Alaska and three boroughs of New York City • Renewed and amended in 1970, 1975, 1982 and 2006

9. Voting Rights Legislation • US Supreme Court upheld constitutionality of VRA in South Carolina v. Katzenbach (1968) • Voting Rights Act of 1970 • Literacy tests permanently banned • Voting Rights Act of 1975 • Extended protections to language minorities • Election jurisdictions must provide balloting materials in additional languages where >10% of the population speaks it as a primary language • Spanish in NYC and other areas • Chinese in San Francisco

10. Voting Rights Legislation • Voting Rights Act Amendments of 1982 • Changed discriminatory “intent” standard to “effect” standard • In order to challenge a voting practice, it is no longer necessary to prove that it was adopted with the intent to discriminate, only that it has the effect of discriminating on the basis of race • This was the basis of the recent challenge to SC’s Voter ID law (disproportionate effect on black voters even if this was not its intention) • Banned practices where minority voters have less opportunity than others to participate in the electoral process and “elect candidates of their choice”

11. Voting Rights Legislation • Racially polarized voting: A majority of members of one racial group support one candidate and a majority of members of another racial group support another candidate • In the South (and some other areas), a majority of white voters support Republicans and a majority of black voters support Democrats • Makes it difficult if not impossible for minority candidates to get elected

12. Majority-Minority Districting • The VRAA of 1982 was interpreted by the Justice Department as requiring the construction of districts where minority candidates had a fair chance of being elected. • This requires the construction of districts where members of a minority group (e.g., African-Americans, Hispanics) are the majority of the population. • This requires gerrymandering in favor of the minority group. • Since NC is 16% black, it was required to construct two (out of 12) Congressional Districts that were majority-black.

13. 12th Congressional District of North Carolina 1992-1997

14. Controversies in Majority-Minority Districting • MMDs elected the first African-American Members of Congress since Reconstruction from NC, SC and other states • Reverse discrimination? 14th Amendment prohibits discrimination on the basis of race, not discrimination against one particular group • Shaw v. Reno (1993): US Supreme Court held that NC 12th District violated the rights of a white resident, since it was designed to elect someone not of her race

15. Controversies in Majority-Minority Districting • NC had to redistrict again in 1998, 2000, 2002 • Hunt v. Cromartie (2001): Supreme Court upheld one version of the 12thDistrict, finding that race was not the “predominant” consideration in its design • Political gerrymandering is permissible (perfectly OK to draw a district designed to elect a Democratic candidate, a majority of whose population happens to be black) • MMD was believed to be the only way for black candidates to get elected in white-majority areas: does Obama’s election change this? (He won NC)

16. Voting Rights Act of 2006 • Named for Fannie Lou Hamer, Rosa Parks and Coretta Scott King • Extended language-minority requirements and preclearance requirements • Controversies: Should states like SC continue to be required to get federal approval for changes in voting practices because of long-ago discrimination? • Should balloting materials be provided in languages other than English?

17. What Makes It Harder to Vote? • Longer residency requirements • Requiring you to live in an area for a year or more before you can vote there disenfranchises mobile populations (who are more likely to be poor) • Federal law now prohibits a residency requirement of longer than 30 days

18. What Makes It Easier or Harder to Vote? • Registration requirements • The earlier the cutoff date to register before the election, the less likely people are to register and therefore to vote • SC requires you to register 30 days before the election (most states require some advance registration period) • Eight states allow you to register on Election Day and then vote immediately • NC allows you to register and then vote during the early voting period, but not on Election Day itself • North Dakota has no voter registration, and very high turnout • Academic studies indicate little evidence of fraud committed through this practice

19. Identification requirements • Intended as safeguard against voter fraud (but academic research indicates that very little vote fraud occurs in the form of identity theft or impersonation at the polls) • ID requirements make it harder to vote • An estimated 11% of eligible voters do not have government-issued photo ID

20. Identification requirements • Lack of ID disproportionately affects poor people in general and African-Americans in particular • A black Southerner born before the Civil Rights Act of 1964 is more likely to have been born at home if their mother couldn’t go to a segregated hospital to give birth • If you were born at home, you’re less likely to have a birth certificate than if you were born in a hospital • What if you need a birth certificate to get a photo ID?

21. Identification requirements • SC’s voter photo ID law is subject to Justice Department preclearance • The Justice Department denied preclearance because it found that it would have a disproportionate effect on black citizens • On October 12, 2012, a federal court upheld the ID law but postponed it from going into effect until 2013 • Arizona has just passed a law requiring proof of citizenship to register to vote – does this raise the same issues?

22. Absentee Voting • Do you need an excuse to vote absentee by mail, or can anyone do it for any reason? • If you don’t need an excuse for an absentee ballot, it’s easier to vote • 27 states allow absentee voting with no excuse • Oregon and Washington state conduct all elections by mail • Significant potential for voter fraud in absentee balloting • In SC, you must apply for an absentee ballot ahead of time and meet certain requirements • Examples: • Students attending school away from home • Military personnel • Anyone age 65 and older • Hospitalized, job prevents you from voting while polls are open, death in family, etc.

23. Early voting • Vote in person at a designated site (such as a public library) during a period of time prior to Election Day • Available in 32 states and DC, not in SC • NC has early voting Oct. 18-Nov. 3 this year • This is supposed to make it easier to vote, but actually appears to decrease turnout • The theory is that if voters’ attention is directed away from a single Election Day, they’re less likely to vote

24. Voting technology • Certain types of technology make it harder for your vote to be cast and counted accurately • This became an issue in the 2000 presidential election in Florida • Punch cards: 4% error rate • Computerized systems: <2% error rate • Poorer (more Democratic) areas were more likely to have cheaper, less accurate technology: did this actually affect the outcome of the election? • Bush won Florida by 537 votes • Help America Vote Act of 2002 (HAVA) • Grants to states to improve voting technology

25. Who Can’t Vote? • People under 18 • Non-citizens • People who move within 30 days of the election can vote using their old residence, not necessarily their new one • Those declared mentally incompetent • Convicted felons in most states • College students • In some states, living in a dorm does not meet the residency requirement to vote in the place where you attend school; this was a controversy at WU for several years • Most students use their family home as a voting address even when they’re away at school

26. Felon disenfranchisement • 5.85 million ex-felons (1 in 13 black men) are ineligible to vote after their criminal sentences have been served • In 11 states, disenfranchisement after a felony conviction is permanent • In 35 states, you have no voting rights while on parole (incl. SC) • In 30 states, you have no voting rights while on probation • In ME and VT, you can vote while in prison