When the Bill of Rights was proposed, it was unthinkable that the right to vote would be included. That would have meant extending it to women, free Black people, and white people without property. Article I, Section 2 of the Constitution gave the states the power to determine who could vote in federal elections.
That provision was subsequently modified by constitutional amendments, the 15th and 19th, that granted voting rights to newly freed Black people and women, respectively. However, as New York Governor Charles Evans Hughes noted in 1907 — 13 years before he became Chief Justice of the Supreme Court — “We are under a Constitution, but the Constitution is what the judges say it is …”
Judicial discretion allowed the Supreme Court during the Jim Crow era to uphold Southern laws that denied power to Black voters through devices such as literacy tests and whites-only primary elections. The Court privileged states’ authority under Article II over the 15th Amendment’s guarantee of the right to vote.
The Supreme Court shifted its position in the 1960s when it upheld the 1965 Voting Rights Act as a valid exercise of Congress’s power to enforce the 15th Amendment. The act authorized federal officials to go into states with a history of voter suppression to register eligible citizens and required these states to get clearance from the Justice Department before making any changes in their voting laws. For the first time in our nation’s history, nearly every U.S. citizen who wanted to vote could do so without facing an undue burden, such as passing a literacy test.
That era has ended. In the early 2000s, Republican legislators in Indiana and Georgia enacted laws requiring residents to have a government-issued photo ID, such as a driver’s license or passport, to register to vote. Minority group members, young adults, and people with low income — all of whom tend to vote Democratic — are the Americans least likely to have a passport or driver’s license.
The constitutionality of a government-issued photo ID law was challenged as violating the 14th Amendment’s equal protection clause. In 2008 the Supreme Court, in a 6-3 decision with Republican appointees casting the six votes, rejected the challenge, saying that, although the law had a partisan motive, it was only one of the motives behind the law. The Court’s decision gave a green light to other states to pass similar laws. Two dozen Republican-controlled states did so.
Five years later the Supreme Court gutted key provisions of the 1965 Voting Rights Act. In Shelby County v. Holder (2013), a 5-4 decision with all five of the majority votes cast by Republican appointees, the Supreme Court invalidated the requirement that required designated states to get clearance from the Justice Department before changing their voting laws, holding that the formula for identifying such states was obsolete.
The Court’s decision set off a race to the bottom in southern states. Within a year, every state previously subject to the preclearance requirement, all of which had a Republican-controlled legislature, had changed its voter eligibility rules.
Texas’s new law required voters to have an approved form of photo ID. On the approved list was a concealed handgun license. Omitted from the list was a state or local government employee ID. A college ID was also left off the list. Government workers, college faculty, staff, and students? Mostly Democrats. Gun owners? Mostly Republicans. The law was challenged as a violation of equal protection, but the Supreme Court upheld it in 2014.
In 2017, North Dakota’s Republican-controlled legislature passed a law requiring residents to have a residential address to be eligible to vote. Nearly all white residents, who tend to vote Republican, had one. But many from North Dakota’s strongest Democratic voting bloc didn’t. They are the Native Americans living on reservations, which don’t have street names and numbers on all their roads. The Supreme Court allowed the North Dakota law to stand.
In 2021, the Republican appointed justices further weakened the Voting Rights Act by upholding a law enacted by Arizona’s Republican-controlled legislature that made it a crime for campaign workers and community volunteers to collect voters’ absentee or mail-in ballots and deliver them to a polling place or post office. The practice was concentrated on Arizona’s Native American reservations where polling places and post offices are often a long distance from people’s homes.
The Republican-appointed Supreme Court justices now appear set to assign the Voting Rights Act to history. In their new term, they have asked to hear a Voting Rights Act case challenging North Carolina’s new law that would block state courts from reviewing cases involving the rules for federal elections. The law if upheld could conceivably allow a state legislature to void election results and handpick the winner.
Texas, Georgia, and Florida are among the more than a dozen Republican-controlled states that have enacted more restrictive voting laws since the 2020 election, many of them aimed at suppressing Democratic turnout. A Georgia law, for example, restricts the number of Sundays on which early voting and registration can occur. Sunday was traditionally a time when Black congregations after church services would collectively register and vote. None of the voting laws enacted by Republican-controlled states since the 2020 election has been struck down by the Supreme Court.
The cumulative impact of states’ efforts to control access to the ballot will not be known until after the November votes are counted but it could be large enough to affect control of the House and Senate. Journalists might consider reminding their audience about what’s required to register and vote in their state.
Thomas E. Patterson, Bradlee Professor of Government & the Press at Harvard’s Kennedy School, is the founder of The Journalist’s Resource and author of several books, most recently “Is the Republican Party Destroying Itself?” JR plans to post a new installment of his Election Beat 2022 series every week leading up to the midterm elections. Patterson can be contacted at thomas_patterson@harvard.edu.
Further reading:
“Voting Laws Roundup: May 2022,” Brennan Center for Justice, NYU, 2022.
“Block the Vote: How Politicians are Trying to Block Voters from the Ballot Box,” ACLU, 2021.
“The Missing Right: A Constitutional Right to Vote,” Jonathan Soros, Democracy 28, Spring 2013.
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