The Right To Vote in the U.S. Constitution – Part Two 

Civil Rights Policy Brief #221 | By: Rod Maggay | October 27, 2024

Featured Photo by: theregreview.org

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In the first part of this series on the right to vote in the United States, we examined the source of the right to vote found in the U.S. Constitution and how the constitutional framework with regards to voting has been incomplete. We additionally examined some of the constitutional amendments that have been passed to try and remedy some of those gaps. The second part in this series will examine how Congress has tried to address voting rights through federal legislation. 

Policy Summary: After the Civil War Congress passed a number of constitutional amendments to try and manage and limit the restrictions states used to limit who could vote in elections. However many states, particularly in the South, simply refused to abide by the new amendments. States took it upon themselves to add more and more restrictions through a variety of methods. Some states passed new state constitutions with new voting restrictions that exempted white voters from the new restrictions, e.g. whites being exempted from poll taxes and literacy tests. Some states even implemented the “white primary” which only allowed white voters to participate. Physical violence was also employed to intimidate and harass voters and in some cases to physically beat (and sometimes murder) voters in order to keep them away from polling places. Combined with Jim Crow laws that were used to impose a white supremacy mindset, states were able to skirt what the new constitutional voting rights amendments prohibited. 

In the mid twentieth century, Congress decided to get involved with the issue of voting rights amid the growing Civil Rights Movement. Two pieces of legislation were passed in the 1950’s – the Civil Rights Act of 1957 and the Civil Rights Act of 1960 – but these acts were broad bills that dealt with a wide range of civil rights topics and only briefly touched on voting rights. It was not until 1965 that Congress passed the Voting Rights Act that dealt specifically with voting rights. The law outlawed voting qualifications that denies or abridges a right to vote on “account of race, color or membership in a language minority group.” LEARN MORE 

Policy Analysis: The Voting Rights Act of 1965 provided the Federal Government with more substantial tools to fight voter suppression tactics that were still being employed by some states. The most significant was Section 5 of the Act that required the Federal Government to first approve any changes that a state or local county wanted to make to a voting procedure, more popularly known as “pre – clearance.” This procedure no longer left it to the states alone to decide what voting laws to implement. The Federal Government now had a say and could approve or disapprove a state’s voting law. If it found the proposed law racially discriminatory in any way, the Federal Government could now “veto” the proposed rule and prevent it from going into effect. And, Section 6 (now Section 8) allowed “federal observers” to monitor a jurisdiction’s voter registration functions to ensure that race was not being used to deny a person from registering to vote. The entirety of the Voting Rights Act of 1965 is significant because it took the absolute power of the states over voter eligibility and the right to vote and shared it with the federal government to ensure that discriminatory practices were kept to a minimum. 

But while the Act made broad strides in protecting the right to vote, the Act is only limited to discriminatory tactics that are based on race, color and membership in a minority language group. It does not provide protections based on gender, sexual orientation or on a person’s immigrant status. States may not pass rules that are obviously based on race or color but they are still finding subtle ways to insert a restriction or prohibition that touches on race or color. In March 2024 a rule in Arizona requiring a person to register their birthplace in order to vote was struck down. This was because Arizona already had a rule struck down stating that they could not require proof of citizenship as a requirement to vote and it was believed the birthplace requirement could have been used to determine a voter’s citizenship status. And Alabama and Virginia have recently received notices from the U.S. Department of Justice to prohibit their removal of voters from their state’s voter rolls in the weeks and days leading up to Election Day on November 5th. Virginia’s methods were especially onerous as they were comparing lists of non – citizens with lists of currently registered voters to determine who should be removed. Virginia was also breaking the Quiet Period Provision of the National Voter Registration Act of 1993 (NVRA) which provides that voter roll maintenance and removal of voters cannot be done within 90 days of an election. And in Texas, the American Civil Liberties Union (ACLU) won a victory in a case where Texas sought to limit who may provide assistance to a voter seeking help and instructions to fill out their ballot, as Texas wrongly believed that any assistance was evidence of voter fraud. 

What these scenarios demonstrate is that states can still find a way to discriminate and suppress the vote in ways that do not directly involve race or color. In these cases, the Voting Rights Act of 1965 would not apply to protect a citizen’s right to vote. It shows that when it wants to the federal government can do more. But what if the next wave of state voter suppression bills are aimed at LGBQT persons? Or aimed at out of state college students? Or aimed at those who support certain rights like reproductive rights or immigrant issues? States have been known to change minimum voting threshholds and eligibility to try and ensure that abortion restrictions don’t get overturned. The Voting Rights Act of 1965, because it is based solely on race, would be helpless to protect these voters. What is needed from Congress is a more comprehensive voter eligibility and protection bill that would cover more than race or color instead of addressing these gaps piecemeal. History has demonstrated that states will simply ignore new laws (e.g. the post Civil War constitutional voting amendments) but if Congress can enact a broad and sweeping bill with strong enforcement provisions (like what the VRA of 1965 has) that protects more beyond race and color then Congress will go a long way to protecting voting rights, even more than what was first envisioned when the Voting Rights Act was passed in 1965. LEARN MORE, LEARN MORE, LEARN MORE 

Engagement Resources

• Department of Justice – DOJ guidance on removal from voter lists and cleanup efforts. 
• DOJ Civil Rights Division – department’s guide on federal observers and election monitoring. 

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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