Voting Rights IS the Most Important Issue Today
We’ve been fighting for our unrestricted voting rights since at least 1789.
By Pamela Hilliard Owens
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There are so many issues fighting for our attention all at the same time, it is mind-boggling. As we enter the third year of COVID, even as the numbers from Omicron are quickly declining, we are exhausted and tired of things not being “normal.”
But of all of the pressing concerns we are facing, the MOST important is “Voting Rights.” The universal right to vote for ALL Americans has been an issue since the founding of this country.
How It Started
When the United States Constitution was adopted in 1789, voting rights were left to the states. The novelty of representative democracy (instead of a monarchy) and a compromise over slavery (the “3/5ths” rule for counting slaves). At the very beginning, the only people who had the right to vote were white male property owners. No poor white men, no women, no Black people, no indigenous peoples, no other people of color. It wasn’t until the 1820s that the property-owning restrictions were eased.
By the way, it is amazing that “Constitutional Originalists” like Justice Amy Coney Barrett, don’t seem to realize that they would have almost NO rights under the original version of the Constitution. It is incredulous that as a woman, Justice Coney Barrett does not realize that in 1789, she didn’t even have the right to vote, much less become a lawyer and then a judge.
It wasn’t until the 15th Amendment was ratified in 1870 that all men were (supposedly) given the right to vote regardless of race, color, or previous condition of servitude. The 15th Amendment also gave Congress (not just the States) the power to enforce the amendment with appropriate legislation.
The 19th Amendment, ratified in 1920, finally gave (supposedly) all women the right to vote, and again gave Congress (not just the States) the power to enforce the amendment with appropriate legislation.
In 1924, the Indian Citizenship Act granted the right to vote to Native Americans born in the United States.
In 1943, the Chinese Exclusion Act was finally repealed, giving Chinese immigrants and their American-born families citizenship and the right to vote.
So it took about 154 years for the United States to (supposedly) grant full citizenship and voting rights to all of its native-born and naturalized citizens age 21 years and above.
But it wasn’t that easy.
Jim Crow and his grandson, James Crow, Esq.
The 13th Amendment ending slavery in the United States was ratified in December 1865. The 14th Amendment, ratified in 1868, gave American citizenship to all persons “born or naturalized” in the United States (conveniently still excluding Indians), and (supposedly) guaranteed equal rights and protections to ALL, and enshrined “due process” into the Constitution.
Interestingly, especially since the two impeachments of Donald Trump and the January 6th Insurrection to overthrow the 2020 election of Joe Biden, Sections 2, 3, and 5 of the 14th Amendment have become increasingly more important.
Section 2 of the 14th Amendment basically states that when the right to vote is abridged or denied to anyone (only males at that time) over the age of 21, the number of representatives allocated to that state will be reduced.
Section 3 of the 14th Amendment asserts that no person shall be a Senator, Representative, elector of the President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive r judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to enemies thereof. Only a vote of 2/3 of both houses of Congress can supersede this for such a person.
Section 5 of the 14th Amendment again gives Congress the power to enforce this amendment by appropriate legislation.
It didn’t take long for the Southern states to set up all types of voter suppression tactics, including literacy tests, poll taxes, grandfather clauses, violence, lynching, and other ways of murder.
“Jim Crow” laws were state and local laws that enforced racial segregation in the Southern states and were meant to disenfranchise all minority populations, but especially African Americans and remove all of the political and economic gains made by Black people during the Reconstruction period. In 1896, the United States Supreme Court upheld the established Jim Crow laws in Plessy vs. Ferguson which laid out “separate but equal” facilities for African Americans. Jim Crow laws were enforced in the South all the way up to 1965.
The Department of Justice was Established to Fight the Ku Klux Klan
In 1870, Congress established the Department of Justice, led by the Attorney General, to handle the legal business of the United States. In order to ensure the civil rights and voting rights of African Americans in general during this time, and to respond to the violence and terrorism of the Ku Klux Klan, Congress also passed a series of Enforcement Acts in 1870 and 1871 to end the violence and empower the President to use whatever legal and military means to protect African Americans. The Attorney General and the Solicitor General successfully prosecuted more than 3,000 members of the Ku Klux Klan, gaining over 600 convictions.
However, voter suppression and voter restriction efforts continued all the way until the passing of the Voting Rights Act in 1965—for almost one hundred more years.
The Destruction of the Voting Rights Act
The Voting Rights Act did what Reconstruction did: put federal muscle behind ensuring voting rights. Even if the states tried to continue voter suppression and restriction, the Department of Justice and the Supreme Court were empowered by the Voting Rights Act to ensure everyone had the right to vote. The Voting Rights Act was reauthorized every five years by both Houses of Congress until about 2020.
In 2013, the United States Supreme Court ruled in Shelby County vs. Holder that Section 4(b) of the Voting Rights Act was unconstitutional, meaning that the “preclearance” requirement for certain states was no longer necessary.
Since then, and especially since the 2020 election of Democrat Joe Biden and the 2021 elections of Senators Raphael Warnock and Jon Ossify (both Democrats) in Georgia, hundreds of voter restriction and voter suppression laws have been passed in states with Republican legislators. At least 23 states had enacted "newly restrictive statewide voter laws,” including polling place closures, voter ID laws, limiting early voting, and more.
Some of the most restrictive and dangerous laws actually give Republicans the right to “throw out” election results they don’t agree with, ignoring the will of the voters in their jurisdictions.
What Is Going to Happen Now?
Because the current composition is split 50/50 (including two independent Senators who caucus with the Democrats), and two of the Democratic Senators refuse to vote with the other 48 on the current voting rights acts that have been passed by the House of Representatives.
Also, because the not-constitutionally-required filibuster function is still in effect, there is no way that sixty votes could be used to vote for voting rights. Even if the current Majority Leader of the Senate, Chuck Schumer of New York, was able to disable the filibuster, we would still need the votes of all fifty Democrats plus Vice-President Kamala Harris to get a majority of 51 votes in the Senate.
Unfortunately, there is very little the Department of Justice or the President can do (through Executive Actions) to change the trajectory of voter restrictions and suppression efforts, especially not in time for the 2022 elections. Republican-run states will not work with the Federal government and only Congress can change the laws.
It seems as if the only recourse we have is to fight hard at the state and local levels to ensure that as many Democrats as possible work hard to overcome the obstacles, and equally as important, that the votes are correctly and fairly counted.