Vote, right to Summary

  • Last updated on November 11, 2022

Delineation of which persons are granted suffrage under the U.S. Constitution or by legislation.

In Reynolds v. Sims[case]Reynolds v. Sims[Reynolds v. Sims] (1964), Chief Justice Earl Warren wrote, “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Warren’s pronouncement notwithstanding, the manner in which the Supreme Court interpreted the right to vote has varied significantly over its history.

Suffrage has been extended and expanded primarily by constitutional amendment and legislative enactment, not as a result of Court rulings. In 1870 the Fifteenth AmendmentFifteenth Amendment enfranchised men who had been denied the vote because of their race, color, or previous enslavement. In 1920 the Nineteenth AmendmentNineteenth Amendment specifically eliminated gender as a criterion for voting. Requiring payment of a tax to be eligible to vote was made unconstitutional by the Twenty-fourth AmendmentTwenty-fourth Amendment (1964). The Twenty-sixth AmendmentTwenty-sixth Amendment (1971) lowered the voting age to eighteen. The Voting Rights Act of 1965Voting Rights Act of 1965 was pivotal in establishing the efficacy of minority voting rights.

The Court’s involvement with suffrage takes three forms: First, it determines whether a right to vote exists under any given circumstance. Second, it decides what legal protection is available to citizens who are prohibited from exercising their right to vote. Third, it examines whether electoral districts are properly apportioned so that each person’s vote counts equally in determining the outcome of elections.

Early Issues

Historically, the Court’s determination of when a constitutionally protected right to vote existed has been narrow and restrictive. The Constitution originally contained very little regarding the right to vote. Existing references appear to leave primary responsibility for questions of suffrage to the states. For instance, Article I, section 2, provides for popular election of a House of Representatives. However, it is the states that determine who can vote in those elections. Before 1960, with rare exceptions, the Court viewed the right to vote as a political question for state legislatures rather than a legal right protected by the Constitution. This view persisted even in the light of such explicit constitutional pronouncements as the Fifteenth Amendment. Therefore, the states exercised primary dominion over suffrage through the nineteenth century and into the first half of the twentieth century

Before the Civil War (1861-1865), questions regarding the right to vote rarely came before the Court. That changed after passage of the Fourteenth and Fifteenth Amendments in 1868 and 1870 respectively and because of the women’s suffrage movement. In the Slaughterhouse Cases[case]Slaughterhouse Cases[Slaughterhouse Cases] (1873), the Court, making its first interpretation of the Fourteenth Amendment, read it restrictively. For example, in delineating the privileges and immunities of U.S. citizens under the Fourteenth Amendment, it made no mention of the right to vote, which continued to be viewed as a matter for the states to decide. This case served as a harbinger of how the Court would view the Fifteenth Amendment. The Fifteenth Amendment appeared to grant the right to vote to recently freed male slaves and to prohibit the denial or abridgement of that right on account of a person’s race or color. However, in United States v. Reese[case]Reese, United States v.[Reese, United States v.] (1876) and United States v. Cruikshank[case]Cruikshank, United States v.[Cruikshank, United States v.] (1876), the Court maintained its narrow interpretation of the right to vote.

Reese and Cruikshank involved convictions under the 1870 Enforcement Act, enabling legislation intended to implement the Fifteenth Amendment. In Reese, state election officials were found guilty after refusing to accept the vote of an African American. In Cruikshank, a mob was convicted in the killings of more than one hundred African American would-be voters. The Court reversed the convictions in both cases. The premise behind the Court’s rulings was that the Constitution, even as amended by the Fifteenth Amendment, did not give anyone the right to vote. That amendment simply meant that the government may not discriminate on the basis of race, color, or previous servitude in determining who can vote. However, the determination of who can vote remained with the states.

These decisions were consistent with the restrictive view of the right to vote expressed by the Court earlier in Minor v. Happersett[case]Minor v. Happersett[Minor v. Happersett] (1875). The case concerned the right of women to vote and the greater issue of whether the Constitution established a right to vote at all. As in the Slaughterhouse Cases, the issue centered on the meaning of the privileges and immunities clause of the Fourteenth Amendment. The legal action was brought on behalf of Virginia L. Minor by her husband, Francis. Virginia Minor was an active suffragist and hoped that women’s right to vote could be secured through the courts. However, the Court unanimously determined that because no right to vote in general is guaranteed by the Constitution, no right to vote for women could be implied from the language of the Fourteenth Amendment.

The view of the Court in cases such as Minor, Reese, and Cruikshank becomes clearer when contrasted with Ex parte Yarbrough[case]Yarbrough, Ex parte[Yarbrough, Ex parte] (1884). That case, like Reese and Cruikshank, involved the use of violence to prevent an African American from voting. However, in this case, it was clear that under state law, Berry Saunders, the target of the violence, had the right to vote. The Court emphasized that although it could not grant the right to vote, it certainly had the authority to protect the exercise of that right when it existed. Ku Klux Klan member Jasper Yarbrough’s conviction under the 1870 Enforcement Act was upheld. However, the impact of this decision was quite limited. In James v. Bowman[case]James v. Bowman[James v. Bowman] (1903), the Court stated that the 1870 Enforcement Act could not constitutionally be used to punish purely private, as opposed to state, actions that interfered with someone’s right to vote.

The Minority Rights Context

The Court’s decisions on the right to vote in the post-Reconstruction era through the twentieth century should be read in the context of minority rights. After ReconstructionReconstruction, the southern states tried to maintain or regain social and political conditions in which whites dominated. After World War II, social attitudes toward and legal recognition of minority civil rights began to change significantly. The Court’s decisions on the right to vote were influenced by and influenced these societal conditions.

After Reconstruction, throughout much of the United States but particularly in the South, states enacted a variety of laws often referred to as Jim Crow laws. These laws appeared benign on face but in application, they discriminated against minorities. For example, some states required otherwise eligible voters to pass a literacy test before they could cast their ballots. This practice was considered tangentially in Williams v. Mississippi[case]Williams v. Mississippi[Williams v. Mississippi] (1898) and found not to violate the equal protection clause of the Fourteenth Amendment. The Court determined that because a literacy test was required of all voters, there was no discrimination based on race or color as prohibited by the amendment. In fact, as applied by local election officials, these tests frequently were administered such that white citizens passed and nonwhites did not.

Another invidious scheme involved the use of a grandfather clauseGrandfather clause, which limited the right to vote to those people whose ancestors had had the right. The ancestors of most African American citizens were slaves and not eligible to vote; therefore, the current generation could not vote either. Some states required citizens to either pass a literacy test or show that their ancestors had been entitled to vote. Educated or not, most white citizens had ancestors who were eligible to vote and therefore did not have to take a literacy test. However, most African Americans were required to pass the literacy test. In this way, apparently neutral state qualifications for voting were in fact used as devices to prevent African Americans from exercising their voting franchise. However, the Court continued to view the right to vote as a political matter for the states and, absent overt discrimination, did not interfere with a state’s decision on voting rights.

Giles v. Harris[case]Giles v. Harris[Giles v. Harris] (1903) provides an example of the Court’s approach to the right to vote in the early 1900’s. Jackson W. Giles claimed that the 1901 Alabama state constitution denied him his right to vote because it, in effect, made it more difficult for him to register to vote than it was for his white counterparts. The Court cited several reasons for refusing to grant the relief sought by Giles, including its historic reluctance to involve itself in political questions and in the enforcement of political, as opposed to legal, rights. In essence, the Court again adhered to the position that the question of whether a right to vote exists is one to be answered by state legislatures, not by the Court.

Similarly, in Breedlove v. Suttles[case]Breedlove v. Suttles[Breedlove v. Suttles] (1937), the Court upheld poll taxesPoll taxes. Clearly poll taxes made it more difficult for the poorer citizen to vote. However, because the law was not discriminatory on its face as everyone had to pay the tax to vote, the Court deferred to the state’s judgment about its own electoral structure. It took a constitutional amendment in 1964 to make poll taxes unconstitutional.

In Guinn v. United States[case]Guinn v. United States[Guinn v. United States] (1915), which involved an Oklahoma state grandfather clause, the Court began to move toward a more active involvement in issues surrounding the right to vote. For the first time, it looked beyond the apparent neutral form of an electoral law and took into account the discriminatory effect of the law on the right to vote of most minorities in that state. The Court held this law to be unconstitutional because it in effect denied the right to vote to those who were protected by the Fifteenth Amendment. Literacy tests also received increased scrutiny by the Court, although the practice in general was validated as late as 1959 in Lassiter v. Northampton County Board of Elections.[case]Lassiter v. Northampton County Board of Elections[Lassiter v. Northampton County Board of Elections]In Harman v. Forssenius[case]Harman v. Forssenius[Harman v. Forssenius] (1965), the Court interpreted the Twenty-fourth Amendment broadly enough to strike down a Virginia law that gave its citizens the choice of paying a poll tax or, in effect, registering to vote before each and every election. The Court not only upheld congressional authority on questions of the right to vote but also looked to the actual impact of the law in question in making its decision.

The Voting Rights Act

In 1965 Congress passed the Voting Rights ActVoting Rights Act of 1965. This legislation made illegal practices (such as literacy tests and grandfather clauses) that unduly or in a discriminatory manner limited the right to vote. The act was amended in 1970 to expand its coverage, in practical effect, nationwide and amended again in 1975 to make the law perpetual. The constitutionality of the 1965 act was questioned in South Carolina v. Katzenbach[case]South Carolina v. Katzenbach[South Carolina v. Katzenbach] (1966) and Oregon v. Mitchell[case]Oregon v. Mitchell[Oregon v. Mitchell] (1970). Once again the Court was faced with determining under what circumstances, if any, U.S. citizenship included the right to vote. The Court upheld the constitutionality of the Voting Rights Act. It held that Congress does indeed have the constitutional authority not only to protect the exercise of the right to vote but also to protect the fundamental right to vote itself. Its rulings showed a continued trend toward an aggressive defense of citizens’ right to vote free of undue impediments and to have their votes count equally with those of all others.

Further Reading
  • The Supreme Court and Individual Rights by Joan Biskupic and Elder Witt (Washington, D.C.: Congressional Quarterly, 1997) provides an excellent introductory treatment of the right of political participation. The Law of Democracy Legal Structure of the Political Process (New York: Foundation Press, 1998) by Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes examines the procedural components of democracy in the particularized context of the United States, primarily from a legalistic perspective. Daniel Hays Lowenstein’s Election Law (Durham, N.C.: Carolina Academic Press, 1995) uses a traditional casebook approach to analyze how the Supreme Court has addressed questions concerning electoral structures and processes. Bernard Schwartz’s A History of the Supreme Court (New York: Oxford University Press, 1993) presents a chronological view of the workings of the Court placed in its broader political and historical context, a context particularly important to understanding the evolution of the right to vote. The Evolution of American Electoral Systems (Westport, Conn.: Greenwood Press, 1981), edited by Paul Kleppner, is a collection of essays on the political and historical development of the electoral structure in the United States. J. Morgan Kousser’s The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910 (New Haven, Conn.: Yale University Press, 1974) and Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Chapel Hill: University of North Carolina Press, 1998) provide an uncommonly insightful analysis of the right to vote in the South. The first volume covers the Reconstruction era; the second considers the post-World War II years.

Cruikshank, United States v.

Fifteenth Amendment

Fifth Amendment

Grandfather clause

Guinn v. United States

Minor v. Happersett

Political questions

Poll taxes

Reese, United States v.

Representation, fairness of

Reynolds v. Sims

Slaughterhouse Cases

Twenty-fourth Amendment

Twenty-sixth Amendment

Voting Rights Act of 1965

White primaries

Yarbrough, Ex parte

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