What’s Next for Voting Rights?

The United States Supreme Court has agreed to hear a pair of cases, being argued together, which address an issue on voting rights. In Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee, the Court is being asked to decide, among other things, whether a state, in this case Arizona, can prohibit “ballot harvesting,” a process in which someone, typically not a family member or caregiver, collects and submits mail-in votes for other people. The law had been passed several years ago but given the prominence of mail-in votes in the 2020 election and perhaps in the future, these cases may provide a sense of where the issue of voting rights is headed. First, some background on voting rights.

From Reconstruction to Jim Crow

Section 1 of the Fifteenth Amendment to the United States Constitution, added in 1870 during Reconstruction, states: “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.” That Amendment, the third of three post-Civil War amendments, aimed to give Blacks the same voting rights as Whites. As a result of the Fifteenth Amendment, Blacks in the South were able to vote in large numbers during Reconstruction and were elected to various offices in the southern states. Moreover, according to the organization Facing South (https://www.facingsouth.org) and the Biographical Directory of the United States Congress (1903, United States Government Publishing Office), eight African Americans were elected to Congress for the term from 1877-1879 – one senator and seven representatives. Among those representatives was Robert Smalls, a formerly enslaved man who commandeered a Confederate ship and who later served with the Union Navy during the Civil War.

Unfortunately, the voting rights for Blacks established by the Fifteenth Amendment were short-lived. Decisions by the Supreme Court, along with the Jim Crow regime which was set up in southern states shortly after Reconstruction, wound up removing the rights of almost all Blacks in the South to vote until the 1960s. Methods such as the poll tax, literacy tests, and outright intimidation were used in southern states to suppress the vote. Not surprisingly, Blacks were no longer elected to Congress from southern states.

Push Back, The Voting Rights Act, and Suppression

But voting rights for Blacks were recovered to a large extent in 1965, in the culmination of the Civil Rights Movement of the 1950s and ‘60s. In March of 1965, a group of protestors marched from Selma, Alabama to the state capitol in Montgomery, to seek the right to vote. Among the leaders of the group was the late John Lewis, at the time a young civil rights activist. Lewis was severely beaten during the March but continued his activism and went on to be elected to Congress in 1986. The events of the Selma to Montgomery March outraged much of the country, and later that same year, Congress passed, and President Lyndon Johnson signed the Voting Rights Act of 1965. That Act outlawed literacy tests, poll taxes were made unconstitutional in federal elections by the 24^th Amendment, and they were ruled unconstitutional at the state level by a Supreme Court decision. In addition, the Act provided for federal officials to be present at voting places in the southern states, and for southern states to be required to get federal approval of any changes in voting procedures.

The Voting Rights Act significantly increased the ability of African Americans to vote in southern states, and they began to again be elected to various offices. According to History.com, “[i]n Mississippi alone, voter turnout among Black people increased from 6 percent in 1964 to 59 percent in 1969”; such turnout percentage compared favorably with the overall voter turnout in the nation. In addition, by 1992, there were 18 Blacks elected to Congress from southern states (see again, the organization Facing South and the Biographical Directory of the United States Congress).

The Voting Rights Act was expanded and continued on several occasions – in 1970, 1975, 1982, 1992 and 2006. But in the early 2000s, some southern states sought to challenge the parts of the Voting Rights Act which provided for federal oversight of voting in southern states and required federal approval of changes in voting processes in those states. In 2013, the Supreme Court, in Shelby v. Holder, ruled in favor of the southern states. As a result, the federal government is no longer involved in supervising elections in those states. But other portions of the Voting Rights Act continue in effect. As explained by SCOTUSblog, Section 2 of the Voting Rights Act bars racial discrimination in voting by allowing “voters to seek judicial relief if they believe that a state or local government has denied or limited their voting rights on the basis of their race, color or membership in a language minority group.” Seeking judicial relief is a great option but it assumes a capacity to implement that is not accessible to all.

The Recent and Present Situation

Since the decision in Shelby v. Holder, there has been concern that some states are trying in other ways to suppress voter turnout, with a particular purpose of reducing the votes by poor and younger voters, who typically vote heavily for the Democrats. While the prior voting rights actions were aimed at stopping discrimination by southern states against Blacks, these new steps seem to go even further. Many states have passed Voter ID laws, which require a person to show a valid ID, often a driver’s license, to establish that they are who they say they are when they show up to vote. The theory is that people with less means and younger people are less likely to have such IDs. At this time, 36 states have enacted Voter ID laws. Some of these laws have been subject to judicial challenges, but as of this time, the Supreme Court has not ruled definitively on whether they are allowed in general.

That brings us to the consolidated cases from Arizona mentioned at the top of this article. The Arizona Republican Party, as well as Arizona’s attorney general, a Republican, argue that disallowing ballot harvesting is a common practice used by many states to prevent voter fraud. It appears that about half of the states allow ballot harvesting. You can find some good information on that at the following two links: https://ballotpedia.org/Ballot_harvesting_(ballot_collection)_laws_by_state, and https://www.cbsnews.com/news/ballot-harvesting-collection-absentee-voting-explained-rules/. On the other side, the Democratic National Committee argues a ban on ballot harvesting violates Section 2 of the Voting Rights Act, because the claims of voter fraud are unfounded, and the law is actually aimed at suppressing the vote of African Americans. Why should so called ballot harvesting be illegal? Such an idea penalizes those who are disabled, shut-in, or otherwise living with capacity limitations and unable to access the service of a family member to enable them to cast their vote. Making ballot harvesting illegal prevents charitable individuals and groups from assisting and enabling voters to cast their ballots. It will be interesting to see how the Court rules in these cases. While the issue here may not tell us what the Supreme Court thinks about voting rights on the whole, the decision may give some indication about what the Court thinks about arguments that claim there is still racial discrimination in voting.

The Arizona cases are not yet scheduled for oral argument in the Supreme Court, but assuming that they go through the rest of the process without delay, they will be argued and decided by the end of the Court’s current term in June 2021.

Is there a role for you to play? The American Civil Liberties Union (ACLU), NAACP Legal Defense Fund, and others, who seek to expand voting rights will likely argue or support voting rights in these cases. Your support of these organizations can enable you to participate in protecting the right for all Americans to vote.

As Frederick Douglass (1818-1895) reminds us in 1857, “Without a struggle there can be no progress.”