David Cole teaches constitutional law, national security, and criminal justice at Georgetown University Law Center. His book, “Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law,” will be released in March.
In 2008, 57 percent of Americans voted, and Barack Obama became the nation’s first black president. In the 2010 midterms, only 37 percent voted, and Republicans gained control of the House of Representatives, as well as 18 state legislatures. They learned their lesson. The following year, Republican legislators introduced 180 bills in 41 states designed to make it harder to vote. Nineteen states passed 25 laws that limited voting. They included onerous voter-identification laws and registration requirements, restrictions on early voting and increased penalties for volunteers who make mistakes in registration drives. Not coincidentally, the laws all had a foreseeably disproportionate impact on the young, the poor and minority voters — groups that tend to vote Democratic. As conservative strategist Paul Weyrich told the Republican National Convention some 30 years earlier: “I don’t want everybody to vote. . . . Our leverage in the elections quite candidly goes up as the voting populace goes down.”
Such a self-consciously partisan and highly coordinated strategy of vote suppression is, one might think, profoundly un-American. The nation was founded on the “consent of the governed.” “We the people” rejected monarchy for popular sovereignty. Yet as Michael Waldman deftly shows in “The Fight to Vote,” there have long been two competing strains in American politics.
On the one hand, the nation’s commitment to democracy is reflected in a long, albeit fitful, drive to expand the franchise to meet the ideal of equal voice upon which democracy’s legitimacy is premised. On the other hand, majorities have too often sought to exploit their temporary advantage to rig the rules to ensure their continued hold on power even after they have lost the people’s support.
As far back as the founding era, the Federalists, seeing a popular turn toward the Republicans, became “the first American ruling group, sensing demographic or political change, to try to withdraw democratic rights as an electoral tactic.” Southern whites perfected the practice in the aftermath of Reconstruction, using literacy tests, poll taxes and other means to disenfranchise virtually the entire black population and much of the poor white population to boot.
And today, Republicans in many states have pressed voter-identification laws, purportedly in response to a threat of in-person fraud, that impose document requirements that disproportionately bar poor and minority voters while simultaneously foreclosing Election Day registration. Proponents of these laws have cited almost no instances of actual in-person voting fraud. Indeed, given the serious criminal penalties for such conduct and the minimal likelihood that a single vote would make a difference, one judge noted that you “would have to be insane to commit voter impersonation fraud.” Yet it is a convenient excuse to deny the franchise to poor and minority voters.
Such moves are possible because the Constitution’s framers chose not to create a right to vote and instead left the matter largely to the states. The issue has been a source of heated struggle ever since. At the time of the founding, James Madison wrote eloquently that the electors should be “not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune.” Yet at its founding the nation was a democracy in name only. Slaves were denied the vote and counted as three-fifths of a person — not to afford them any rights but to give white Southerners disproportionate power in Congress. Women were denied the vote. And most states limited the franchise to those who owned property. The country was founded not on the “consent of the governed” but on the agreement of white male property owners. And they were not eager to give up their monopoly.
The democratic ideal, however, has long had a force of its own, and over time, the franchise has expanded to more closely approximate the promise upon which we staked our independence. It is notoriously difficult to amend the Constitution. After the first 10 amendments, adopted essentially as a condition of ratification, only 17 others have won approval in 240 years. Yet five of them expand voting rights. The 15th Amendment, enacted after the Civil War, prohibited denial of the vote on the basis of race. The 17th Amendment empowered citizens to vote for senators directly. (Senators were initially selected by state legislators.) The 19th Amendment, ratified in 1920, gave women the vote. The 24th Amendment championed the democratic rights of the poor by banning poll taxes. And the 26th Amendment extended the franchise to 18-year-olds.
This remarkable string of constitutional amendments is emblematic of a central theme of Waldman’s engaging history: The vote has been protected largely by the people, through the democratic process itself, rather than by court-enforced constitutional law. The courts have long been wary of getting embroiled in what Justice Felix Frankfurter called this “political thicket.” And not without reason; voting disputes are frequently highly partisan, and if the Supreme Court divides along partisan lines, its own legitimacy is likely to be called into question. No decision has done more to undermine the court’s legitimacy in my lifetime than Bush v. Gore. Judicial involvement in partisan disputes is fraught with risk.
But leaving the democratic process to the democratic process also has great dangers. Consider what Southern legislatures were able to achieve in the Jim Crow era. During Reconstruction, black voter turnout approached 90 percent, hundreds of black men were elected to state legislatures, a black man was elected governor of Louisiana, and 16 blacks served in Congress. But in the wake of Reconstruction, Southern states imposed a range of hurdles at the ballot box designed to deny freed black men the vote.
The tactics, especially when coupled with the terror inflicted by the Ku Klux Klan, were brutally effective. In Louisiana, the number of black registered voters dropped from 130,000 in 1896 to a mere 1,342 in 1904. By 1940, only 3 percent of African Americans in the South were registered to vote. And all of this occurred after the adoption of the 15th Amendment, prohibiting denial of the vote on account of race. The courts did nothing to stop it.
It took political mobilization, in the form of the civil rights movement, to reverse the trend. Enactment of the Voting Rights Act, spurred by police brutality directed at civil rights protesters in Selma, Ala., and elsewhere, returned the vote to African Americans. In Mississippi, black registration went from 6.7 percent in 1964 to 59.3 percent in 1968 and to 71 percent by 1998.
Voting rights, Waldman reports, are under attack again today. As the Federalists did in the nation’s earliest days and Southern whites did in the Jim Crow era, Republicans today are doing their best to make voting difficult for those who they think will not support their cause. Republican appointees on the Supreme Court have exacerbated the problem. In 2013, by a 5-to-4 party-line vote, the court invalidated the most effective provision of the Voting Rights Act, which required states with a history of discrimination to obtain Justice Department approval before changing their voting rules in ways that might disproportionately burden minority voters. And the Roberts court has issued a series of 5-to-4 rulings, including most notably Citizens United v. Federal Election Commission, that have struck down reasonable limits on campaign spending, effectively giving billionaires and corporations a constitutionally protected right to buy influence and distort the electoral process. Justice Louis Brandeis, who grew up in the Gilded Age, warned that “we can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.” As Waldman shows, the Republican Party has made its choice clear, today simultaneously seeking to protect concentrations of great wealth and to suppress voting by the poor.
But however successful they might be in the short term, such efforts to undermine democracy are a sign that the Republicans are on the wrong side of history. Political parties seek to restrict the vote when they lack confidence that they will prevail in a full and fair contest. Such limits have worked to entrench power temporarily. Still, Waldman’s important and engaging account demonstrates that over the long term, the power of the democratic ideal prevails — as long as the people so demand.
By Michael Waldman
Simon & Schuster.
368 pp. $28