Voting Rights | Constitution 101

0:00[Music] today we're going to talk about voting rights and the constitution let's begin with a quick walking tour of the constitutional provisions that address voting let's start with the original constitution there are four main provisions article 1 section 2 which sets out qualifications for voters in u.s house elections article 1 section 3 which leaves the election of u.s senators to state legislatures article 1 section 4 which leaves the time place and manner of elections to state legislatures subject to regulation by congress and article 2 section 1 which sets up the electoral college so the big takeaway is that the original constitution left voting issues largely to the states now moving beyond the original constitution we see several constitutional amendments which relate to elections and voting there is the 12th amendment which changes the electoral college there was the 14th amendment which uh protects the equal protection of the laws and which

1:16the supreme court eventually evoked to protect voting in the 20th century there's the 15th amendment which bans racial discrimination and voting there's the 17th amendment which provides for the popular election of u.s senators changing the original constitutional design there's the 19th amendment which bans sex discrimination in voting there's the 23rd amendment which gives the district of columbia three electors in the electoral college the 24th amendment which bans poll taxes in national elections and the 26th amendment which protects voting rights for people who are 18 and older what's the big idea here the original constitution leaves the issue of voting largely to the states a series of new constitutional amendments passed in the progressive era and after world war ii banned discrimination at

2:07the ballot box based on race the 15th amendment sex the 19th amendment and age the 26th amendment state governments still play a central role in elections today but these new amendments carved out an important role for the national government in the context of election and voting now we're going to talk about the constitutional history of voting rights uh before the civil war it's an important story and we're going to begin by rewinding to 1776 after america declared independence states began to write new constitutions and different states took different approaches to voting most of them established property requirements for voters they limited voting rights to people who owned property but even in those early years some states moved to abolish these requirements vermont in 1777 had no

3:00property requirements pennsylvania in 1776 abolished property requirements but it did require voters to be taxpayers and then there's women and voting in fact unmarried women who own land could vote in new jersey in state and local elections between 1776 and 1807 it was after that that the state legislature restricted voting to free white male citizens now let's skip ahead to the age of jacksonian democracy in the 1820s and 1830s at the same time that new jersey is cutting back on its voting for women we're seeing massive changes in american democracy and a move toward universal white male suffrage so it's this is the period when states are abolishing their property requirement poor white men are now able to vote throughout the country which was not the case at the founding

3:56nevertheless we continue to see restrictions for many other groups including women and african-americans now by the mid-1800s women begin to push for access to the ballot box and in 1848 at the seneca falls conference elizabeth katie stanton and lucretia mott organized a convention to discuss women's rights the gathering attracted nearly 300 people and stanton prepared a manifesto called the declaration of sentiments it was literally a rewriting of the declaration of independence to draw attention to the inequalities and oppressive laws that women endured the declaration of sentiments begins we hold these truths to be self-evident that all men and women are created equal and stanton obviously used the declaration of independence as a model evoking the natural law principles of

4:50the revolution to guarantee equal liberty and equality for all human beings all men and women instead of listing grievances against the british king she included a list of complaints against men and her declaration closed with 12 demands including equal education equal pay property rights and the sacred right to the elective franchise in 1878 women's suffrage advocates settled on the following language to amend the constitution to protect women's right to vote 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 sex this was known as the susan b anthony amendment it was introduced in congress for the next four decades congress finally approved it on june 4th 1919 and it was ratified by three

5:44fourths of the states in august 1920 when it became the 19th amendment to the constitution now the women's suffrage advocates modeled their language on the language of the 15th amendment which was ratified after the civil war and banned racial discrimination in voting so let's uh turn to that period after the civil war when the reconstruction generation ratified three important amendments that transformed the constitution the 13th amendment abolished slavery the 14th amendment wrote the declaration of independence's promise of freedom of inequality into the constitution by protecting the equal protection of the laws and the 15th amendment ban racial discrimination in voting in december 1868 congressional republicans introduced early versions of

6:34the 15th amendment and republicans debated a series of questions most notably whether the new amendment should protect voters only against racial discrimination or whether it should cover more than that banning for example poll taxes and literacy tests there were significant debates in the house and senate and senator henry wilson's draft would have banned discrimination and voting based on race color place of birth property education and religious creed it would have banned poll taxes and literacy tests and the senate passed senator wilson's amendment but the house rejected it and the two houses eventually hammered out a compromise which included more limited language which banned racial discrimination in voting and the 15th amendment was ratified in february

7:281870. many african americans many americans celebrated it as the culmination of the anti-slavery crusade here's what frederick douglass said the revolution wrought in our condition by the 15th amendment is almost startling even to me i view it with something like amazement but while reconstruction transformed the constitution forever the moment of reconstruction itself was shining but brief african-americans voted in great numbers electing republicans throughout the south and pushing for the ratification of the 14th and 15th amendments african-americans held office at all levels of government and the national government for the first time acted to protect the constitutional rights of all but then the 15th amendment was eviscerated by a pushback known as southern redemption over time white southerners regained

8:21political power and suppressed african-american voting rights through a mix of violence intimidation and jim crow laws like poll taxes and literacy tests a poll tax is not something that you pay at the polls but polls referred to a head in an ancient english law so a poll tax the head tax i mean you gotta everyone who shows up at the at the polls has to vote and obviously that discriminates against poor people and it meant that many african-americans couldn't vote and they were further prevented from exercising their right to vote by discriminatory literacy tests administered against them but not against white people all of these would have been prohibited by senator wilson's broader proposal for the 15th amendment if it had passed which it didn't and as a result from the 1870s through the early 1900s the supreme court began to cut back on the 15th amendment in cases like united states versus reese

9:14from 1876 and giles v harris 1903 a really shocking case where justice oliver wendell holmes said well maybe alabama's not allowing black people to vote but if there's some kind of fraud on the constitution we the supreme court are powerless to do anything about it and we're not going to make ourselves a party to the fraud by striking this down he basically refused to enforce the 15th amendment and as a result its promise was nullified for many years there were some legislative advances for voting rights during this period in the early 20th century in 1924 for example congress passed the indian citizenship act of 1924 which guarantees citizenship to all native americans born in the u.s congress passed this law in part in response to the native american service in world war one nevertheless the right to vote continued to be governed by state law and until

10:071957 some states continued to bar native americans from voting the most transformative legislative advance for voting rights was the voting rights act of 1965. congress passed it under its power guaranteed by the 14th and the 15th amendment and it created mechanisms to make the promise of the 15th amendment a reality it banned racial discrimination and voting and it set up a mechanism called pre-clearance which required certain states which had history of suppressing the right to vote it made them have to get national permission before they could change their voting laws in discriminatory ways and the voting rights act included a formula for deciding which states and counties needed to get pre-clearance to change their election practices and that was based on their history of

10:58discrimination and voting this is strong constitutional medicine it provided the national government with an important role in protecting voting rights and attacking jim crow laws and it transformed both the legal landscape and the supreme court's attitude toward voting rights shortly after the voting rights act passed the supreme court considered a challenge to its constitutionality in the case of south carolina versus katzenbach and the court in an opinion by chief justice earl warren rejected the challenge and upheld the voting rights act's pre-clearance requirement as a valid exercise of congress's power to enforce the 15th amendment the court concluded that the 15th amendment gave congress full remedial powers to ban racial discrimination and voting and the voting rights act was a legitimate response to the insidious and

11:47pervasive evil of jim crow laws that prevented african americans from voting since the 15th amendment was passed now in other cases after the passage of the voting rights act the supreme court said the right to vote is a fundamental right protected under the 14th amendment this is an important change because the original 14th amendment was only intended to apply to civil rights not political and social rights but after the voting rights act the court expanded the 14th amendment to protect political rights as well and as a result after 1965 the court struck down various laws that infringed on the right to vote most notably jim crow laws that discriminated against african americans for example in 1966 in harper against virginia board of elections the court struck down the use of poll taxes in state and local elections as a violation of the 14th

12:38amendment the supreme court recently returned to the issue of the voting rights act constitutionality in shelby county against holder when the voting rights act was passed in 1965 the pre-clearance requirement was set to expire after five years but congress extended it in 1970 in 1975 in 1982 and then for an additional 25 years in 2006 and in shelby county the challengers argue that the voting rights act use an outdated formula for deciding which states and localities were covered by the pre-clearance requirement and they said that formula violated the constitution in a 5-4 decision written by chief justice john roberts the supreme court agreed the court struck down the voting rights act's pre-clearance formula the justices concluded that this provision exceeded the scope of congress's power under the 14th and 15th

13:32amendments the court decided that the 2006 amendments were unconstitutional because the coverage formula was based on data about racial discrimination from the 1970s that hadn't been changed since 1982 so it was based on old data and the court said that the south had changed a lot since the jim crow days under these circumstances the court concluded that the selective application of the pre-clearance requirement ran afoul of what the court called a fundamental principle of equal sovereignty among the states as a result the voting rights act pre-clearance mechanism can't be enforced unless congress passes a new coverage formula there was a dissenting opinion in shelby and it was written by justice ruth bader ginsburg joined by justices breyer kagan and sotomayor

14:20justice ginsburg said the voting rights act did fall within congress's power to protect people from racial discrimination and voting the 15th amendment's text in history show commitment to attacking racial discrimination at the ballot box previous decisions like katzenbach confirmed congress's broad power to enforce the 15th amendment and justice ginsburg said the voting rights act has worked defeating jim crow transforming voting and increasing african-american voter participation justice ginsburg concluded throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you're not getting wet on the court and in the country debate about the scope of constitutional protections for the right to vote continue

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