opinion
The Right to Vote: A Primer on Applicable Constitutional Provisions and Laws
Voting is a fundamental component of American democracy. Yet, voting has not always
been available to all members of our society. Accordingly, the Editorial Board of the Evansville Bar Association has written this article on this history of the right to vote in honor of Law Day, the theme of which is “Your Vote, Your Voice, Our Democracy.”
The U.S. Constitution does not confer a right to vote to all citizens. In fact, the original
Constitution did not include a right to vote at all; rather, it only addressed elections to federal office, leaving to each state complete authority to set voter qualifications and rules for voting in Congressional elections. U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”)
As of the Constitution’s ratification in 1789, state legislatures generally restricted the
right to vote to white male property owners over the age of 21 (roughly 6% of the population), although the Indiana Constitution never imposed a requirement of property ownership. See Ind. Const. art. 2, § 2 (1816) (“In all elections, . . . every white male citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months immediately preceding such election . . . shall be entitled to vote.) In 1856, North Carolina was the last state to abolish “property ownership” as a voting qualification for white men.
The idea that the right to vote is fundamental did not come into play until after the Civil
War. In 1870, the Fifteenth Amendment was ratified and declared that the “right of citizens of the United States to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” U.S. Const. amend. XV., § 1. In 1920, the right to vote was extended to women by passage of the Nineteenth Amendment, which 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 sex.” U.S. Const. amend. XVIII, §1. In 1964, states ratified the Twenty-Fourth Amendment, which eliminated poll taxes as an eligibility requirement in federal elections.
U.S. Const. amend. XXIV, §1 (“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”) Finally, the Twenty-Sixth Amendment, ratified in 1971, lowered the voting age from 21 to 18 for all elections. U.S. Const. amend. XXVI, § 1 (“The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”)
Congress has the power to enforce the Fifteenth, Nineteenth, Twenty-Fourth, and
Twenty-Sixth Amendments “by appropriate legislation.” See Const. amend. XV, § 2; XIX, § 2; XXIV, § 2; XXVI, § 2. The Voting Rights Act of 1965, enacted to enforce the Fifteenth Amendment, outlawed literacy tests and similar voting qualifications and practices that discriminated on the basis of race or color and gave the Attorney General the authority to preapprove certain state laws (“preclearance”) regulating elections and voting. An expansion of the law in the 1970s also protected voting rights for non-English-speaking U.S. citizens.
But in 2013, the Supreme Court struck down part of the Act which had established a formula for identifying jurisdictions that were required to obtain preclearance. Shelby County v. Holder,133 S.Ct. 2612 (2013).
Since the Voting Rights Act, state laws on voting have frequently been subject to judicial
scrutiny on grounds that they may restrict the right to vote. State laws imposing any form of literacy requirement are expressly prohibited by the Voting Rights Act and have been invalidated by the courts. See Oregon v. Mitchell, 400 U.S. 112 (1970). Yet, mental incapacity, which typically requires an adjudication of incompetency, is still an eligibility restriction in some states. For example, see the Kentucky Constitution at § 145(3) (stating “the following persons are excepted and shall not have the right to vote . . . (3) Idiots and insane persons.”); Iowa Code Ann. § 48A.2(4) (“Person incompetent to vote” means a person with an intellectual disability who has been found to lack the mental capacity to vote in a proceeding held pursuant to section 633.552.”).
Disenfranchisement due to a felony or an “infamous crime” conviction has been
upheld as a valid eligibility restriction. See Richardson v Ramirez, 418 U.S. 24 (1974); Johnson v. Gov. of State of Florida, 405 F.3d 1214 (11th Cir. 2005); Snyder v. King, 958 N.E.2d 764, 768 (Ind. 2011) (defining “infamous crimes” as those that “attempt to abuse or undermine our constitutional government” such as treason, perjury, and election fraud). Felony disenfranchisement is expressly permitted in many state constitutions as well as the Fourteenth Amendment. U.S. Const. amend. XIV, § 2 (prohibiting the right to vote for any reason other than “participation in rebellion or other crime”); see also Ind. Const. art. II, § 8 (“The General Assembly shall have power to deprive of the right of suffrage, and to render ineligible, any person convicted of an infamous crime.”). The Indiana General Assembly disqualifies felons from voting only during the time they are imprisoned or otherwise detained.
In recent years, photo identification laws have been challenged as an impermissible
eligibility requirement. In 2008, Indiana’s voter ID law was upheld by the U.S. Supreme Court as being valid, in part because such laws protect against voter fraud and promote public confidence. Crawford v. Marion County Election Bd., 553 U.S. 181 (2008). Durational residency requirements of more than 30 days have also been challenged as an impermissible eligibility restriction. Dunn v. Blumstein, 405 U.S. 330 (1972). Due to the Voting Rights Act and state judicial decisions, virtually every state has a durational residency requirement of no more than 30 days.
The Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments and the
Voting Rights Act have expanded the right to vote to every American citizen above the age of 18, and any restrictions on this right will likely continue to be the subject of judicial challenges and scrutiny. It is incumbent on each citizen to appreciate and exercise his or her right to vote.
This article was written by the Editorial Board of the Evansville Bar Association, chaired by Erin Bauer, and comprised of Max Fiester, Hon. Carl Heldt, Steven Hoar, Yvette LaPlante, Mark Miller, Andy Ozete, Katherine Rybak, Hon. Les Shively, Dirck Stahl, Kathryn Sullivan, and Shawn Sullivan
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