Record numbers of Americans have mailed in ballots or are showing up at polling places to vote early, but if they hope to guarantee their votes will count, one thing is clear from these Supreme Court decisions and others: The Constitution is the wrong place to look. If we want to really guarantee our suffrage, we should know true control of the franchise lies with the states.
Over and over, the Constitution makes that clear.
Let’s start with what it says about federal voting. When the Constitution took effect in 1789, “we the people” could vote only in U.S. House elections, and that was only if our state legislature let us vote in state house elections. It’s only been since the 17th Amendment in 1913 that we’ve elected senators; before then, state legislatures chose them. As for the presidency, we still don’t vote for it; state legislatures hold a popular vote to choose “electors” — the people who directly vote for president and vice president — and until 1880 at least some state legislatures chose the electors themselves. Notice a pattern?
Other misconceptions about voting rights concern what the Constitution says, and doesn’t say, about race, sex, age and citizenship.
A lot of people assume the Constitution originally didn’t let Black people vote — that instead it was the 15th Amendment in 1870 that gave them that right. Not only is that not the case, but the 15th wasn’t the first amendment to counter Black voter suppression. The 14th Amendment, in 1868, gave citizenship to anyone born in the United States, including Black people, and penalized states for not letting “male” citizens 21 and older, including Black male citizens, vote in federal and state elections. But the penalty — a decreased population basis for apportioning U.S. representatives — wasn’t enough to stop suppression, so the 15th Amendment specified “race, color, or previous condition of servitude.” In other words, “citizens of the United States” can’t have their right to vote “denied or abridged” based on those things, which really means the amendment protects our voting rights only if we already have them.
This distinction means everything, because it shows where disenfranchisement has always lived: in state governments. For all its groundbreaking protections, the 15th Amendment didn’t prevent a century of poll taxes, literacy tests and whites-only primaries in Southern states. By not specifying that Black people had the right to vote, the Constitution opened the door for discriminatory state laws. At the same time, the Constitution never said Black people couldn’t vote. While no states let enslaved people vote in 1789, free Black people — sometimes restricted to men or property owners — could vote in Delaware until 1792, Kentucky until 1799, Maryland until 1809, Connecticut until 1818, New Jersey until 1820, North Carolina until 1835 and Pennsylvania until 1838. Rhode Island let free Black people vote before 1822, then banned them, and then reversed the ban in 1843. Free Black men or property owners have always voted in Maine, Massachusetts, New Hampshire, New York and Vermont. The point is, the Constitution didn’t ban Black people from voting, but by leaving suffrage up to the states — even in federal elections — states could pass discriminatory laws targeting Black voters. They still do this today with state laws around polling place closures, voter ID requirements, “exact match” signature registration policies, “use it or lose it” stipulations, felony disenfranchisement and the other sorts of challenges the Supreme Court has been considering.
Similarly, we tend to think of women getting the right to vote with the 19th Amendment in 1920, but that’s also not true. The 19th is written like the 15th in that voting rights for citizens can’t be “denied or abridged” based on sex; but this didn’t give women the right to vote, it just protected their right if they already had it. In many states, women could vote long before the 19th Amendment: New Jersey allowed women to vote between 1789 and 1807, and between 1869 and 1887, five territories that later became states granted women full voting rights. In 1890, Wyoming became the first state after New Jersey to give women voting rights, and 14 others followed — as well as 12 more that restricted female voting to presidential elections — before the 19th Amendment. While the Constitution does mention “male” around voting, in the 14th Amendment, it wasn’t an actual restriction. The 19th Amendment, in any case, effectively applied only to White women, since many states prevented Black women from voting until the 1964 Civil Rights Act and the 1965 Voting Rights Act.
Misconceptions apply to how Native Americans are viewed by the Constitution, as well. On two occasions, the Constitution said Native Americans who didn’t pay taxes were excluded from a state’s population totals for the purpose of apportioning its U.S. representatives — but it never mentioned voting. It wasn’t until the Snyder Act of 1924 that Native Americans received U.S. citizenship, which meant the 15th Amendment applied to them, too — but several states resisted. A pair of court cases in 1948 affirmed the 15th Amendment for Native Americans in Arizona and New Mexico, and in 1962 Utah became the 50th state to remove legal barriers to voting for Native Americans. So again, by making voting rights a state issue, the Constitution let individual states disenfranchise a segment of the population. States still do this today with voting laws requiring a mailing address that isn’t just a post office box; many Native Americans don’t possess such an address.
Nor is the Constitution specific about restricting the vote by age. Like the 15th and 19th Amendments, the 26th Amendment in 1971 protected the voting rights of citizens from being “denied or abridged” if they were 18 or older. Until then, the Constitution cited age once (next to “male” in the 14th Amendment), but again, it wasn’t a restriction. Today, dozens of states let voters preregister at 16 or 17, and a third of states let 17-year-olds vote in primary elections if they’ll be 18 by the general election. Four cities in Maryland — Greenbelt, Hyattsville, Riverdale Park and Takoma Park — let 16-year-olds vote in all local elections, and in Berkeley, Calif., 16-year-olds can vote in school board elections. There’s also no federal law requiring people to be 18 to vote, but in Oregon v. Mitchell, the Supreme Court said Congress can set a uniform voting age for federal elections.
As for citizenship status, not only is there nothing in the Constitution that restricts voting to citizens, but for its first 137 years, at least 40 states also let noncitizens vote in federal, state and local elections. Only since 1926, when Arkansas was the final state to implement a ban, have noncitizens been prevented from voting in federal and state elections in every state. It was not until 1996 that a federal law banned noncitizens from voting in federal elections. Today, 10 cities and towns in Maryland — Barnesville, Chevy Chase, Garrett Park, Glen Echo, Hyattsville, Martin’s Additions, Mount Rainier, Riverdale Park, Somerset and Takoma Park — let noncitizens vote in all local elections, while San Francisco lets noncitizens vote in school board elections.
So why didn’t the Constitution specify who can vote? If it had, some states most likely wouldn’t have ratified it, and nine of the 13 states were needed. But while the framers punted the issue of voting rights to the states, they also gave Congress the power to “make or alter” certain voting laws. In other words, for our 231 years under the Constitution, voter discrimination on behalf of property ownership, race, sex, age and citizenship has existed almost exclusively at the state level, which means your state legislators, governor and secretary of state are crucial in guaranteeing you voting rights.
While a new federal Voting Rights Act would certainly help, the only way to guarantee the franchise is through a “right to vote” amendment. On Aug. 5, Sen. Richard J. Durbin (D-Ill.) introduced such an amendment. Needless to say, it won’t sort out 2020 for us.