Below is the text of a toast to the Constitution that I gave to the members of the Higginbotham Inn of Court a few days after the 2020 presidential election:
In the aftermath of the election, I thought tonight would be the perfect time to talk a little bit about the history of voting rights in this country, and what the Constitution does and doesn’t say about those rights.
The tension that exists to this day between federal power and state’s rights is evident in the method the framers chose for the election of the President. Article II, Section 1 provides “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…”.
“In such manner as the legislature thereof may direct.” So as originally written, the U.S. Constitution left the determination of who could vote entirely in the hands of state legislatures. And in those early years, state legislatures directed that (with certain limited exceptions) only white land owning men could vote.
The “land owning” requirement persisted through the early 1800s, ending only in 1856 when North Carolina became the last state to drop it. Yet even as states extended the right to vote to white men who didn’t own land, they simultaneously restricted voting rights in other ways. States like New York, New Jersey, and Pennsylvania that had previously permitted certain limited categories of women and free Blacks to vote took those rights away. By the time the Civil War began, most states had constitutional provisions that prohibited all women and African Americans – free or not – from voting.
In the aftermath of the Civil war, some misguided Americans opposed efforts to grant voting rights to freed slaves in apocalyptic, biblical terms.
A widely distributed 1867 pamphlet in the Library of Congress’s collection opposing rights for newly freed slaves warned: “The people of the United States have now thrust upon them, the question of negro equality, social, political and religious. How will they decide it? The states or people that favor this equality and amalgamation of the white and black races, God will exterminate.”
In spite of this grim warning, the 15th Amendment, ratified in 1870, prohibited the federal government and the states from denying the right to vote to any person “on account of race, color, or previous condition of servitude.” The 14th Amendment defined voters as “male inhabitants…being 21 years of age.” So at that point in our history, the American electorate consisted –in theory anyway – of all male citizens over the age of 21 – except for Native American men who were not yet deemed to be citizens.
Moving on to the early 20th century, the scare tactics about expanded suffrage continued. A pamphlet opposing women’s suffrage warned “The female vote would enormously increase the evil, for it is often more numerous, always more impulsive, and less subject to reason; and … almost devoid of the sense of responsibility.” This warning fell on deaf ears and women won the right to vote in 1920.
Even as the electorate was expanding to include women, states were enacting Jim Crow laws – literacy tests, poll taxes, and record-keeping requirements – that effectively once again disenfranchised most black Americans. These racist voting suppression efforts were all too successful. In 1867, the percentage of African American adults registered to vote in Mississippi was 66.9 percent; by 1955, it was 4.3 percent.
In 1962, the last American state to do so granted voting rights to Native Americans and in 1965, a bipartisan Congress passed the Voting Rights Act barring the discriminatory practices that had prevented African Americans from exercising their voting rights for so long. Finally, in 1971 the 26th Amendment lowered the voting age to 18. And at that point, for the first time in American history, the Constitution provided for the right of nearly all of its adult citizens to vote in Presidential elections. I say nearly, because, of course, residents of D.C. and Puerto Rico still cannot participate.
Turning to today -- In the 2020 election, we saw the highest voter turnout in more than a century. We are at 67% and we aren’t done counting the votes. Young voters, African-Americans, and first time voters came out in droves. And they did so in the midst of a global pandemic and in the face of a firehose of social media misinformation and a grab bag of voter suppression efforts. One of the bright spots of this past election for me was the level of engagement in the political process that I saw among young Americans. It was so gratifying to me to see how much my children and their friends value the right to vote and how they will do whatever it takes to exercise that right.
The constitutional history of American suffrage is a history of fits and starts, and retrenchment but ultimately, the inexorable expansion of voting rights. What’s clear today as always is that embracing voter suppression and disenfranchisement as a political tool is a sure way to end up on the wrong side of history. As Martin Luther King Jr. reminded us, “The arc of the moral universe is long, but it bends toward justice” and justice means that every vote counts.