How Should we Reform Voting?
A Short History of the Centuries-Long Push and Pull for Equitable Voter Access
If you discuss the election with people who wrongly believe it was “stolen” (which I highly recommend, and I think is extremely important), you may find, like I did, that it’s very hard to prove to yourself that it was not in fact “stolen”. This isn’t because you’re faced with compelling evidence that it *was* stolen, and, of course, there’s deep evidence that it was not. It’s just that the attack surface over which claims of fraud can be made is so massive, and it takes time to dispel each individual claim. At some point in these conversations, to shift the burden of proof onto the allegation makers, you’re forced to appeal to authority and refer to the fact that the Attorney General and swing-state Secretaries of State say that it wasn’t stolen from the presidential candidate of their own party and certified the results.
This all feels incredibly precarious to me: I don’t want a system that depends on a few key individuals setting aside their party affiliation to cooperate for the collective good.
For this reason, I’m going to be digging into the history of voting in the U.S. I think we need to build towards a voting system that’s intuitively fair and free for all those participating in it, simple enough in its registration and polling process that there can be no doubt that each individual’s voice was heard. If we don’t, I'm seriously worried that, in the longish run, the internet and its second-order effects will make the U.S. ungovernable without the existence of a state that would look authoritarian to us now.
Voting reform is in the news again with the new administration, so we’re going to start there, specifically looking at the history of voting rights amendments to the Constitution, the legislation that gave it teeth, and why those teeth are actually in terrible shape today.
The Reconstruction Amendments and Voting
After the Civil War, the Federal government had *serious* doubts that the states that had just freed people they’d previously enslaved were going to let those people start voting to elect their own government right away unless they were compelled to.
Having passed the 13th amendment to end slavery (*except as punishment for a “crime”), the Federal government passed two more Constitutional amendments to secure the rights of former slaves, the 14th and 15th Amendments. Collectively we refer to these three as the “Reconstruction Amendments”. The 14th guaranteed citizenship to all those previously enslaved, did some punishing of those who had been involved in the rebellion, and attempted to create an incentive for extending voting rights to the whole [male] population by making a State’s national representation proportional to the share of its [male] population that it allowed to vote.
This last bit evidently didn’t provide enough of an incentive, as states still didn’t extend voting rights, so two years later Congress hit ‘em with another amendment focused on voting.The 15th Amendment guaranteed the ability to vote to all those previously enslaved (only men again).
Well…. tried to guarantee. Let’s read the full text because it only takes a few seconds:
The 15th Amendment
Section 1. 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 race, color, or previous condition of servitude.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
Pretty straightforward amendment, nice! However, notice that the 15th amendment guaranteed the right to vote in a negative sense. It didn’t absolutely abolish all restrictions on voting for people of a certain age, but rather named a few specific things that you definitely *couldn’t* prevent people voting because of: race, color, and whether they had previously been a slave. States that badly wanted to quickly found ways to exploit this, and either created proxies for previous servitude (e.g. grandfather clauses) or tests that they knew would disproportionately or entirely target former slaves and their children (e.g. literacy tests).
After a brief period of enforcing the intent of the 15th Amendment in the former states of the Confederacy, the federal government decided to significantly decrease its enforcement of voting rights because it was politically expedient not to, the Supreme Court pointed out the limited, negative definition of voting rights given by the amendment, and the wind was out of the sails on the whole Reconstruction thing. For decades, the descendants of former slaves were almost totally disenfranchised in the South.
An age came and went with a generation having virtually no say in their own government. The federal government expressed little more than apathy for enforcing the voting rights it had extended, and the courts were quick to point out that Congress alone had been given the power to take action on this issue. The U.S. underwent several financial crises, a pandemic, massacres, and many wars, the burden of which were disproportionately endured by the descendants of the people she’d formerly enslaved.
The 1965 Voting Rights Act
Around 1950, the situation began to change. The federal government, possibly because of the obviously unfair treatment of people of color during the first half of the twentieth century mentioned above, became interested anew in securing the rights, established in the Reconstruction Amendments, of all of its citizens. It was relentlessly challenged to do so by a generation of civil rights activists who wouldn’t allow the 15th Amendment to go un-enforced any longer in the former states of the Confederacy, which had almost totally disenfranchised the whole of their black populations by this point. The federal government began passing civil rights legislation again, establishing federal offices within the Department of Justice related to enforcing civil rights and desegregating schools, employment, and eventually all public facilities and services.
These Acts attempted to also enforce equal access to voting, specifically by empowering the federal government to sue states for any voter registration policies that could be demonstrated to be, in practice, depriving citizens of their 15th Amendment rights. However, proving that one of the methods of restricting poll access used was in fact a proxy for race was time-consuming, and the federal government found that striking down such provisions was a game of whack-a-mole. After the months-long process of collecting voter registration data to demonstrate in a court that a policy, for instance a “moral character test” (whatever that means?), was in reality being used to target voters of color, the federal government would find that the state in question simply changed its voter registration test to some new proxy that would need its own day in court. In some cases, after losing a case, state officials would actually just close down their registration offices until there was time to pass a new restriction.
The attack surface of possible registration restrictions was far too large for the federal government to make meaningful progress in increasing voter access by just repeatedly suing the states. Thus, three Civil Rights Acts later the number of African-Americans registered to vote in the South had barely budged. To finally force the former states of the Confederacy, as well as other discriminatory districts, to allow all of their citizens to vote, the federal government needed to switch the burden of proof from those challenging the voter registration laws as unfair to those seeking to change them for discriminatory effect.
The 1965 Voting Rights Act, passed under Lyndon B Johnson, did precisely this by, among other things, adding a “preclearance” requirement that forced states to submit proposed changes to their voting system before making them to the federal government for review. However, this “preclearance” requirement only applied to states covered by a “coverage formula”, meaning a way of deciding which states had been on particularly bad behavior. Let’s again quickly read it together, since it will be important later:
Section 4(b), Coverage Formula
As of November 1, 1964, the jurisdiction used a "test or device" to restrict the opportunity to register and vote; and
Less than half of the jurisdiction's eligible citizens were registered to vote on November 1, 1964; or less than half of eligible citizens voted in the presidential election of November 1964.
The rule, at the time, was that the state had, in the previous year, 1964, employed a “test or device” to decide whether someone was eligible to vote and also seen voter turnout of less than half of its total eligible citizenry in the previous election. However, the “preclearance” requirement that affected states and districts covered under this coverage formula expired after five years if not renewed.
This method really did prevent states with a history of discriminatory voting restrictions from disenfranchising subsets of their populations, and black voter participation in the South began to rise.
Shelby v. Holder (2013)
However, the Supreme Court again played spoiler and over decades of cases, repeatedly interpreted the Act so as to limit its scope, although rarely finding the content of the Act itself unconstitutional. However, this time, Congress responded to each narrow interpretation with revisions that made the Act’s original intent clear, and in fact broadened the Act, notably by adding “language minorities” as a class that equal access to voting would be protected for.
One piece of the Act that had to be continuously updated was its reference to the year 1964 in Section 4(b)’s coverage formula, along with a renewal of the preclearance requirement that it decided. For a time, Congress updated the year referenced in the coverage formula every five years. Simultaneously, each time, it would renew the role of the federal government as the approver of the affected states’ election law changes.
However, for some reason, not totally clear to me while researching this piece, Congress seemingly forgot to keep updating that number in its amendments to update the Act after the 1975 amendment. The Supreme Court held for years that the provision giving the federal government the powers to supervise states’ changes to their own voting laws was only constitutional because it was a temporary power with a constantly moving window, so this seems like a serious oversight.
Because of this, in 2013, in Shelby v. Holder, the Supreme Court found, somewhat understandably, that the preclearance requirement, which now applied to states based on their voter registration stats and laws in 1973, forty years prior, was thus unconstitutional as is, and needed to be updated. Congress has not done so as of yet. With the Section 4(b) coverage formula disabled, the preclearance system is defunct until a new system for deciding which districts need federal supervision is established.
Looking Forward
This is a long and winding story, covering hundreds of years. Having explained the long historical context of any potential Voting Rights Act/Amendment of 2021, I’m now going to save analysis of the options put forward for a subsequent post (sorry!). But I think from the background we’ve explored a few things should be clear:
A new Section 4(b) coverage formula should be established by any new Voting Rights Amendment.
Any argument that frames voting reform legislation which establishes federal supervision of state elections as an “unprecedented federal takeover” of states’ voting systems seems like it’s probably being made in bad faith. Yes, a key aspect of the preclearance system was that it essentially gave the federal government veto power over states’ voter registration criteria, *not* the power to set states’ voting systems for them. But still, the last time that federal oversight of state elections was as lax as it is right now was pre-1965.
Voting Rights have waxed and waned over the decades, and the lack of current discriminatory registration practice is no guarantee of future equity in access to voting. In her dissent in the Shelby v Holder decision, Justice Ruth Bader Ginsburg wrote, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” It seems reasonable for the Court to have struck down the 1973-based coverage formula, and the decision didn’t directly challenge preclearance, only the coverage formula, but the concern in general seems warranted. Whenever in the past we’ve let our guard down, voting access has gradually been stripped away. Even if one argues racist voting restrictions are less likely given our society’s progress (a dubious argument, given our past experience of regression on this front), there’s nothing preventing some other subset of citizens from being discriminated against until we have a new coverage formula.