The Fragility of Voting Rights: The 2020 U.S. Election

The Fragility of Voting Rights:  The 2020 U.S. Election

by Dr. Linda Geller-Schwartz

This is a story about equality, about justice and, ultimately, about democracy.    It is about the historic struggle to create the kind of nation that America professes to be.  But, as f

On July 30, 2020, when the iconic civil rights leader Representative John Lewis was laid to rest, his final message to the American people was conveyed in a letter published in the New York Times.  It included this advice and caution: “The vote is the most powerful nonviolent change agent you have in a democratic society.  You must use it because it is not guaranteed.  You can lose it.”  Representative Lewis knew all too well of what he spoke.

The history of voting rights in America has been the story of a period of expansion of voting rights followed by periods of backlash and retrenchment.   The simple theory that all citizens in a democracy should have the right to vote, while championed as a principle, has seldom been accepted in practice.   Rather,  both major parties, at various points of history, have operated on the premise that if you can define the electorate by excluding some citizens and including others, you can win or maintain power and keep the “other guys” out.  A view has developed in the U.S. that access to the vote is not a “right”, but a “privilege”.   And, if it is a privilege, it must be earned — and it can also be lost.

The American Constitution, specifically the Fifteenth, Nineteenth, and Twenty-sixth Amendments, established a framework for voting rights in the United States.  But unlike many other countries where the rules governing the electoral system are strictly national, U.S. states have broad discretion in determining qualifications for suffrage within their jurisdictions and managing their own election systems.  The result has been a continuous struggle at both the federal and state levels over voting rights, particularly over the right of Black Americans to vote.

The Fifteenth Amendment to the U.S. Constitution, adopted in 1870, after the Civil War, states that: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”  However, the Southern states during the Reconstruction period did everything within their power to maintain Black disenfranchisement and thwart the Fifteenth Amendment. They designed impossible literacy tests, imposed poll taxes or just resorted to violence to stop Blacks  from registering to vote.  Decades of disenfranchisement and violence followed, culminating in the dramatic march for voting rights from Selma to Montgomery. Alabama.  When Rep. John Lewis led hundreds of marchers across the Edmund Pettus bridge in March 1965 and was met by brutal attacks from state law enforcement, the public finally demanded real change. 

The Voting Rights Act of 1965 is considered to be the most effective piece of federal civil rights legislation ever enacted in this country.  Its most potent provision was the requirement that certain states and localities (known as “covered jurisdictions”) who had a history of discrimination get preclearance from the U.S. Attorney General or the U.S. District Court for D.C. before they made any changes in voting practices.  This one remedy resulted in enormous change, particularly in the South.  About one million new voters were registered within a few years after the bill became law, bringing African-American registration to a record 62 percent 

That was the story until 2013.    In that year, the U.S. Supreme Court effectively gutted the Voting Rights Act (1965) in Shelby County v. Holder (2013) .by striking down the preclearance formula.  The Court reasoned that the formula that determined which states needed preclearance for changes in voting rules was “based on 40-year old facts having no logical relationship to the present day”.  The majority of the Court said Congress needed to enact a new coverage formula.  Seven years have passed and Congress still has not passed the Voting Rights Amendment Act and the results have been predictable.  Within 24 hours of the Supreme Court decision, the floodgates opened, and states started to impose strict voter ID requirements, end early voting, close polling places, purge voters and redraw election districts. These actions were matched by a flurry of lawsuits to counter these measures (some won, some lost). But clearly, the Supreme Court decision has made the right to vote more problematic in states where there has been a history of discrimination.

Meanwhile, in Florida, a state which has determined who would be President based on razor-thin voting margins three times since 2000, a new civil rights struggle is being fought out.  One of the discriminatory remnants of the post-Civil War Jim Crow period in Florida was a lifetime ban on voting for people with a felony conviction.  In 2016, that ban still existed in the Florida Constitution, disenfranchising people of color disproportionately.  It was estimated that 1.6 million potential voters could not register to vote – 10% of Florida’s voting population!  All attempts to challenge the provision in the courts were unsuccessful.  So civil rights groups across Florida mounted a major campaign to place a constitutional amendment on the 2016 election ballot to give the people the opportunity to reverse this historic injustice.  Their efforts paid off, when the amendment passed with 65% of voters at the election voting “yes”!

From a global perspective it seems entirely normal that once individuals are no longer incarcerated for their crimes, they should have their voting and civil rights restored.  But voting in Florida is not universally accepted as a “right”. So, unsurprisingly, despite the overwhelming public approved of the amendment, Florida’s Governor DeSantis looked for a loophole in its drafting to restrict its implementation. Rather than restore voting rights after release from incarceration and/or parole, they required, through legislation, that fees, fines and restitution that were owed by an individual be paid before he or she could register to vote.  Not only is this financially prohibitive for most people leaving prison, but they cannot even get reliable information about how much they owe since the state does not have a standardized record-keeping system of this information.  If the individual wrongly registers to vote, the person risks being charged with a new felony!   The challenge to this legislation has been moving through the courts, but the consequence is that only a small fraction of those 1.6 million potential voters will actually be able to vote in the November election.

Finally, the coronavirus pandemic has presented some new threats to voting rights. Many states, both blue and red, have been trying to encourage vote-by-mail to avoid long-lines and crowded voting places on election day, November 3, 2020.  But President Trump has been sowing some seeds of confusion over voting by mail.  He has said he is concerned about fraud, although there is little to no evidence to show that is a problem.  His actions have extended to making changes in the Post Office to make it more difficult for ballots to be delivered and counted on time.   Voters are very concerned about the many things that could go wrong in November, leaving us with another contested election, lawsuits and effective disenfranchisement for many people. 

Voting should be convenient and straightforward for all citizens, but, unfortunately, in 2020, as in many periods of our history, this does not seem to be the case in America.