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

Civil Rights Policy Brief #232 | By: Rod Maggay | October 30, 2024

Featured Photo by: Unseen Histories on Unsplash

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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 third part in this series will examine how voters themselves, and not the federal or state governments, have tried to remedy the issue of controversial voting rights in the U.S. (You can read the first two Briefs in this series on the Civil Rights US RESIST NEWS archive page).

Policy Summary: While much attention and focus has been on the constitutional amendments and what the federal government and individual state legislatures have tried to do to protect and expand voting rights, the issue at times has been led by individual voters themselves. Instead of waiting for sometimes reluctant legislatures to do something or having another catastrophic event prompt the government to act (e.g. the Civil War), voters have at times tried to utilize the referendum or the initiative process to enact laws to sometimes grant the right to vote and to protect the right to vote that had been granted to minority and racial groups. The issue was placed in the hands of voters with many state legislatures and entities sometimes having no say on the matter until a vote was taken.

The initiative and referendum process in the states vary considerably but have some common elements. The initiative process permits citizens to either collect signatures or craft a petition to implement a new statute or constitutional amendment. If there are enough signatures (state law defines the minimum signatures required) or the petition is accepted, the proposed law or amendment is placed on the ballot. Voters then vote to decide whether the proposed law should be passed or not. If it is passed the proposed law or amendment is added to the law code or state constitution and has the same force of law if the law had been passed by the state legislature. The referendum process is similar. If enough signatures are acquired or a petition is accepted, a measure is placed on a ballot for voters to decide whether to retain or remove an enacted state law. Not all states have an initiative and referendum process and there is no comparable process that is used at the federal government level. LEARN MORE

Policy Analysis: The late nineteenth and early twentieth centuries saw many initiative and ballot measures placed on state ballots over a wide – range of issues. As an example, when it came to women’s voting rights, it appeared as a ballot measure over fifty – four times in nearly 30 separate states between 1867 and 1920 prior to the ratification of the Nineteenth Amendment in 1920, which constitutionally guaranteed to women the right to vote. What this illustrates is that the issue of the right to vote did not have to wait for the state legislature or the federal government to do something to advance. Voters could take their aspirations into their own hands and let voters decide instead of leaving it to reluctant legislators who would often try to stonewall. While not all of the women’s suffrage ballot measures passed, fifteen did pass which permitted women in fifteen separate states the right to vote. The number may not seem that many but passage of these ballot measures in these states laid the foundation for the passage of the Nineteenth Amendment.

This background is important because the use of the ballot measure in regards to voting rights is being used widely today and not always in a positive way. In 2022, there were a number of ballot measures that were placed on the ballot in a number of states that sought to restrict access to the right to vote, likely in response to Donald Trump’s claims of voter fraud in the 2020 election. When asked to vote on controversial voter access proposals, voters in Arizona flatly rejected strict new voter ID requirements. In Michigan, voters approved new expanded voter access policies for their state constitution. And in Connecticut the same year, voters approved a new no – excuse early voting policy.

However, 2024 will see a number of ballot measures that could restrict access to the ballot box. In Wisconsin, a ballot measure would seek to change language in the state constitution that would allow only citizens to vote in Wisconsin elections. And in North Carolina, a 2024 battleground state, a ballot measure is on the ballot to clarify language in the state constitution there that non – citizens are not permitted to vote. In total for 2024, including Wisconsin and North Carolina, there are eight states that have a ballot measure seeking to limit voting in elections to citizens only, very likely fueled by Donald Trump’s unfounded claims that immigrants and non – citizens are voting in significant numbers. So, while initiatives, referendums and ballot measures have given voters the ability to have a say on issues important to them, like voting rights, there is still a danger that the process can be abused by those who want to implement measures that could have the unintended consequences of suppressing the vote and disenfranchising more people than necessary, even some citizens. As Election Day nears, it is up to voters again to take issue into their own hands and come out and vote down these “citizen only voting” ballot measures and demonstrate that state legislatures and the federal government don’t have to take the lead when it comes to voting rights – there are tools for voters to take charge on the issues important to them, too. LEARN MORE, LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources

• State Court Report – more info on how voting rights are handled by the states and the role the initiative and referendum process has in that.

• Ballotpedia – a history of the women’s suffrage ballot measures in the nineteenth and early twentieth centuries.

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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