How Voting Became a Constitutional Right

A History of Revolution and Counter-Revolution, Part I

Published on Martin Luther King Day, January 17, 2022

By Edward Spannaus

While working on this article, I would from time to time test a friend by asking, “What does the Constitution say about the right to vote?”

The correct answer is “nothing,” if we are referring to the Constitution as written in 1787.  There’s a bit of sleight-of-hand when politicians or pundits talk about the United States as “the world’s oldest democracy” – as if this nation were founded as a democracy during our Revolutionary period.  It wasn’t. It was founded as a Republic; democracy came much later.

It took almost 200 years, from the 1770s to the 1970s, for this nation to establish universal suffrage, where all citizens – poor or rich, women and men, black or white, native-born or immigrant – had their right to vote enshrined in our Constitutional law.

The pinnacle of this hard-fought battle was the Voting Rights Act of 1965. But that was simply the implementation of the revolutionary Constitutional amendments that flowed from  the conclusion of our Civil War a hundred years earlier.

That we didn’t start off from the get-go as a society in which all people were free, and all possessed the right to vote, should not be any surprise.  Consider the global context in which the United States was founded.  It was a world dominated by feudalism and one in which slavery was universally accepted as lawful. The 13 colonies – despite significant differences among them – were all subject to English law, of which feudalism and monarchy were its foundations.

Unique – and exceptional – was the founding of a republic committed to, at least in principle if not in practice, to promoting the general welfare and declaring the equality of all its people.

It took almost a century to abolish slavery, and almost two centuries to guarantee to those formerly enslaved, or poor or transient, or of the “wrong” sex, the right to vote.

This is the story of how the nation achieved this goal, in periods of progress and retreat, and how today we find ourselves in another period of backsliding and retrogression.

The 1787 Constitution

When the federal Constitutional Convention adjourned on September 17, 1787, it left a lot of unfinished business.  Among the biggest questions left unresolved (and thus left to the states) were the issues of slavery, and that of suffrage. Slavery was tacitly acknowledged– but not officially recognized – as a state  matter, and the issue of who could vote in elections for federal office-holders, at that point only the Congress being at issue, was avoided altogether.

As was the case with slavery, the issue of suffrage was regarded as so contentious, that for the Convention to take a firm position could jeopardize ratification.  Some members of the Convention, committed republicans, believed firmly that only men of property possessed a sufficient stake in society to be entrusted with the vote. Others, equally committed republicans, believed that giving all men the right to vote was in fact the best means of ensuring that they indeed had a stake in society. (Among the latter were Benjamin Franklin and George Mason.)

In the end, the delegates to the Constitutional Convention ducked the issue, The Constitution did not, as is commonly heard, entitle white men to vote, while excluding Blacks and women. It did not define the right to vote at all, for anyone.

As with slavery, the question of voting was ultimately an issue of defining the nature of the Union. That is, was the nation a confederation of sovereign states, or was it a Union established by “We, the people,” not the states, in which the federal Constitution and the laws made under it, were the supreme law of the land?[1] It took nothing less than a bloody Civil War to resolve that question once and for all.

But there are today, as in the immediate post-Civil War period, those who still don’t accept this truth. Unfortunately, some of them sit on the United States Supreme Court.

Voting before the Revolution: Not as simple as you think

Who could vote at the time of the writing and adoption of the Constitution?  This was entirely left up to the states, as they emerged from the colonial period in which suffrage was based on colonial precedents and English practices. And of course the English system was predominantly feudal or manorial, based upon large land-holdings.  So it is no surprise that, at the time of the Revolution, seven states set a voting requirement of a certain amount of real property; others required a specified level of personal property, and one (South Carolina) allowed the payment of taxes in lieu of land holdings.[2]

And within that framework, there was wide variation at different places and different times.  In at least five states, free Black males were allowed to vote at some times.  At some times and places, Catholics and Jews were barred from voting. And of course, for the most part, women weren’t allowed to vote.  There were also differences between cities and rural areas.

The period of the Revolution was a time of great ferment and widespread debate over voting, as with everything else.  The overthrow of British rule meant forming new governments in the former colonies.  But who should be part of the new governments? Who should have a voice? Was it not paradoxical to argue that there should be no taxation without representation vis-a-vis Britain, but then deny a large part of the population in the newly-freed colonies the right to choose their own governing officials?

One of the most compelling arguments for expanding the franchise involved those who had taken up arms and fought for our independence from Britain. Benjamin Franklin later took up this cause at the Constitutional Convention, arguing “that we should not depress the virtue and public spirit of our common people, of which  they displayed a great deal during the war….”  Franklin contended that the superior valor of the Americans in the war could be attributed to their belief that they were the “equal” of their “fellow citizens,” and he warned that their patriotism could be undermined by property qualifications for the right to vote.[3]

In the early months of the Revolution, under the influence of militiamen, the Pennsylvania state constitutional convention produced one of the most dramatic expansions of the franchise, abolishing property requirements, and giving all taxpaying adult males – including free Blacks – the right to vote.  Enlargement of the franchise occurred in many other states during the Revolutionary period, while still maintaining some property or tax-paying qualification. Only in Vermont were all property or other financial qualifications eliminated by a democratically-elected constitutional convention, which also adopted the first state contitution to abolish slavery. Five states retained their colonial voting laws.[4]  Massachusetts actually tighted its voting requirements. A 1778 draft constitution was rejected by that state’s citizens because of its retaining some property qualifications, and also because of its racial exclusion. A subsequently draft in 1780 eliminated the racial exclusion, but reinstituted property qualifications that were more stringent than in the colonial period.[5]

Free Blacks were not barred from voting in six states (NC, MA, NY, PA, MS, and VT), but were barred from voting in Georgia, South Carolina, and Virginia.  Women were allowed to vote in New Jersey.

What does the Constitution say?

With such a wide divergence in suffrage requirements and practices, it is not surprising that the Constitutional Convention could not set a national standard for voting. It  did not set qualifications for suffrage; it did not grant anyone the right to vote.  Nor did it deny anyone the right to vote.

The 1787 Constitution only addressed voting twice, and that was only for U.S. Representative, the only federal office for which there was direct election at the time.  In Art. 1, Sec. 1, it said that the qualification for voting for Representatives shall be the same as the qualification for voting for the most numerous branch of the State Legislatures (e.g.,  the State House of Representatives, or House of Delegates). In other words, it was left to the states to determine who could vote.

And secondly, in Art. 1, Sec. 4, it stated that the “time, places and manner” of holding elections for U.S. Senators and Representatives shall be set by the states, “but the Congress may at any time by Law make or alter such Regulations….” [6]  This is critically important, for it clearly established, from the outset,  federal supremacy over state laws and practices which might discriminate against certain classes of voters. (A strong rebuff to those today who claim that voting protections proposed by Democrats amount to a “federal takeover” of elections in violation of our Constitution.)

Congress has another potentially powerful tool over elections, in Art. 1, Sec. 5, which states that “Each House shall be the judge of the elections, returns, and qualifications of its Members.”

Amendments are Constitutional

However, the 1787 Constitution has been further elaborated many times, in line with the original principles and objectives laid out in the Preamble, such as “to form a more perfect Union.”

No less than eight Constitutional amendments have been adopted either pertaining to the election of federal officers, or to expand and guarantee the right to vote.  These are surely as much a part of the “original intent” of the Constitution as anything written in 1787 – even if in this case, the “original intent” extends up to 1971!^[7]

Five of these amendments enlarged suffrage and the right to vote.  These are:

• 14th Amendment (1868): All persons born or naturalized in the U.S. are citizens, and no state may make any law abridging their rights; if the right to vote of any citizen is denied, the Congressional representation of  that State shall be reduced accordingly.
• 15th Amendment (1870): the right to vote shall not be abridged by any State on account of race, color, or previous condition of servitude.
• 19th Amendment (1920): Suffrage extended to women.
• 24th Amendment (1964):  Eliminated the poll tax.
• 26th Amendment (1971):  Lowered the voting age to 18.

Importantly, all five of these amendments contain a section declaring that Congress shall have the power to enforce the provisions of each amendment by appropriate legislation.

These amendments, and the laws enacted by Congress to enforce these amendments, constitute part of the “supreme law of the land,” and are binding on the judges and courts in every state, under Article VI of the Constitution.

Yet every enlargement of the suffrage, or laws  guaranteeing the right to vote, have been met by a barrage of legislation and court rulings intended to undermine them.  This goes all the way up to the Supreme Court of the United States, which in recent years has taken it upon itself to question the wisdom and appropriateness of the legislation implementing these amendments, particularly the Voting Rights Act of 1965, which has been re-authorized four times by Congress.  This despite the fact that the Constitution and its amendments expressly give the federal government vast authority over state laws and practices involving suffrage and elections.

This is the supreme law of the land.  Why, then, do we still have so much trouble getting it right?

The early decades

During the decades between the creation of the Republic and the Civil War, the issues of voting qualifications and even the manner of voting, underwent significant changes. The overriding reality of this process, was that all these questions were considered matters for the various states to handle. The national government took no role.

Changes in suffrage were spurred on by the explosion of the population of the United States, in which immigration played an outsized role; the territorial expansion of the nation and the addition of new states, and the rise of industry and manufacturing in the North, creating a progressive and more urbanized society in which property ownership became less significant.

During the first half of the 19th century, the general trend was toward a broadening of the franchise.  Property (or “freeholder”) qualifications were gradually eliminated, Virginia being the last state to jettison it in 1850. Likewise, other economic requirements, such as paying taxes, mostly went away during this time, allowing more people to vote.

In this period, growing urbanization meant that a larger portion of adult males didn’t hold property and were thus unable to vote. Protests broke out in a number of states, including Wisconsin, Maryland, Virginia, and North Carolina. Many men who had served in the War of 1812, for example, found themselves disenfranchised, and joined the protests. (A close-to-home example: in Virginia, men who were mustered into the militia signed petitions protesting their disfranchisement; in Loudoun County, 1000 out of 1200 men mustered could not vote.)[8]

A particularly eloquent expression of the protest against “odious” property requirements is found in the “Memorial of the Non-Freeholders of the City of Richmond,” presented to the Virginia Constitutional Convention in 1829.  They ridiculed the idea that possession of land made a man “wiser or better,”  pointing out that “virtue” and “intelligence” were not products of the soil.  And they noted that no such “invidious distinction” between propertied and propertyless men was drawn “in the hour of danger.”  They pointed out, with irony,  that the muster rolls of the military were not compared with the land books to purge those who lacked  property.  But nonetheless, the Virginia Constitution of 1830 reaffirmed the property requirement, which remained for another 20 years.

It may surprise the reader to learn that citizenship was generally not a requirement for voting at this time, and in many states, unnaturalized aliens were allowed to vote. Indeed, in midwestern states which were seeking settlers, and in urbanized states where manufacturing was growing, immigration was encouraged, and so were their votes.  Often, this became a partisan issue, with Whigs in more rural area, or Democrats in more urban areas, seeking immigrant votes, and the opposition parties seeking to restrict or suppress that vote.

And, strange as it might seem today, voter registration was not a common practice in the early 19th century. It became more popular beginning in the 1830s, especially among Whigs who worried about aliens and transients casting votes for the Democratic Party.  Both New York State and Pennsylvania passed voter registration requirements – which only applied to Philadelphia and New York City respectively – which were believed to be targeting the poor and Irish Catholics.

But by mid-century, in a number of states, the Whigs – unlike today’s short-sighted Republicans – understood the futility of showing  hostility toward groups, such as aliens, who were going to get the vote anyway.

While the broad tendency in the ante-bellum period was for the expansion of suffrage, this was by no means uniform or linear.  Two notable exceptions were women and Blacks.

In New Jersey, where women, at least property-owning women, were allowed to vote up until 1807, claims of “corruption” were then used to justify the restriction of the franchise to “free white male citizens” – thus disfranchising women, Blacks, and aliens.

The number of states which formally barred free Blacks from voting was relatively small in the immediate aftermath of the Revolution, but this number grew steadily throughout the ante-bellum period. By 1855, there were only five states, all in New England, that did not prohibit Blacks from voting.  And then the U.S. Supreme Court, in its infamous 1857 Dred Scott decision, held that Blacks were not, and never could be, citizens of the United States.[9]

Efforts to restrict the franchise intensified after 1855, says Professor Keyssar, spurred on by the dramatic political successes of the anti-immigrant and anti-Catholic “Know-Nothing” movement.  While they opposed the extension of slavery and embraced a number of progressive reforms, they went to great lengths to bar immigrants from voting.  In New York, a voter-registration law was explicitly designed to “purify” the ballot box.

When a group of German-Americans protested a Massachusetts requirement for a two-year waiting period after naturalization before immigrants could vote, Abraham Lincoln wrote to them:

I am against its adoption in Illinois, or in any other place where I have a right to oppose it.  Understanding the spirit of our institutions to aim at the elevation of men, I am opposed to whatever tends to degrade them.  I have some little notoriety for commiserating the oppressed negro; and I should be strangely inconsistent if I could favor any project for curtailing the existing rights of white men, even though born in different lands, and speaking different languages from myself.[10]

A Constitutional Revolution

Discrimination against any class of voters, by race, ethnicity, sex, etc., whether overt or covert, was quite legal in the ante-bellum period, because the states could effectively do whatever they wanted, without any federal constraint.

All this changed with the Civil War and the post-Civil War Amendments enacted between 1865 and 1870.

These amendments – the most important ever adopted – fundamentally changed the relationship between the states and the Federal government. Where the Constitution had been mute regarding voting and suffrage,  it now spoke loudly and firmly:

• Slavery was abolished (13^th).
• No state could now infringe upon the rights, privileges, and immunities of citizens of the United States (14^th).
• The Constitution guarantees equal protection of the laws to all (14^th).
• The rights of citizens can no longer be denied on account of race or color (15^th).
• Congress can pass whatever laws are necessary to enforce these amendments. (13^th, 14^th, and 15^th).

For the first time, the “right to vote” was explicitly guaranteed by the U.S. Constitution.  For reasons we’ve discussed, it was never mentioned in the Constitution prior to the 14^th and 15^th Amendments.

Thus, the issues which had wracked the nation – and the Supreme Court – for much of the pre-Civil War period were now settled, at least formally.  When John Marshall had declared that the Constitution was the supreme law of the land, as well as laws made under it, much of the nation recoiled.  When he said that the Constitution was established by the people of the United States, not the states of the United States, much of the South threatened nullification and revolt.  When he contended that the Constitution was intended to protect citizens against arbitrary action by the states, he was in a distinct minority.

Similarly, just because the Constitution now explicitly extended its protections to all citizens, black or white, native born or immigrant, did not mean that this principle was universally accepted. Far from it.

The 14^th and 15^th Amendments were necessary because powerful white Southerners were not willing to extend the rights of citizens to formerly enslaved persons. When the states of the defeated Confederacy refused to accept the 14^th Amendment, Congress passed the Reconstruction Act which subjected those states to military rule, and made ratification of the 14^th Amendment a condition for re-admission to the Union.

Under Reconstruction and military rule, Blacks were able to vote in large numbers and hold public office. But hostility to Black suffrage persisted.  In the South, the powerful planter class feared loss of their power from widespread Black voting, and feared an alliance of Blacks and poorer whites as emerged in a number of southern states.  In the North, while northern Republicans generally supported Black suffrage, Democrats were obstinately opposed, and made significant gains in the 1867 and 1868 elections; in the latter, the popular Ulysses Grant won the presidency, but by a relatively narrow margin.

The 15th Amendment

For reasons of both principle and practical politics, Congressional Republicans sought a new Constitutional Amendment after the 1868 elections which would explicitly guarantee the vote to Blacks. After extensive debate in Congress, the 15^th Amendment was approved by Congress in early 1869, and was ratified in 1870.  It read:

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.

The Congress shall have power to enforce this article by appropriate legislation.

Supporters of the Amendment were jubilant.  Black voters by the thousands, including military veterans, marched in parades across the county. Frederick Douglass declared that the 15^th Amendment “means that we are placed on an equal footing with all other men … that liberty is to be the right of all.”

For the first time, the Constitution expressly set forth a standard for voting which came close to declaring universal suffrage.  A broader amendment, which would have barred discrimination not just on account of race or color, but “nativity, property, education or creed,” was defeated.  Democrats complained that the Amendment “singled out the colored race as its special wards and favorites.” And Democrats argued as well, as Keyssar summarizes it, “that the amendment violated states’ rights, debased democracy by enfranchising an ‘illiterate and inferior’ people, and promised to spawn an unholy (and contradictory) mixture of intermarriage and race war.” [11]

Not everyone was convinced that the amendment’s sweep would be limited to Blacks. In California, politicians warned that it could open the door to Chinese voting; in Rhode Island, fears were voiced that the Irish could be considered as a “race.”

The 15^th Amendment tacitly left the door open a crack for other, non-racial forms of discrimination, many of which were rapidly implemented, such as poll taxes, literacy tests, and property qualifications. These omissions would not be remedied for another hundred years.

Almost as soon as it was adopted, southern and border states adopted measures designed to circumvent the 15^th Amendment, such as gerrymandered districts and the reorganization of election machinery, including closing polling places, to create obstacles to Black voting. Some states reinstituted financial requirements for voting.

These “legal” measures were accompanied by a reign of terror across the South, targeting Blacks and their white Republicans allies with violence in order to suppress the vote.  This violence was met by Congressional adoption of the Enforcement Act of 1870, which for the first time made interference with voting a federal crime. It authorized the President to appoint election supervisors, who could go into federal court in cases of election fraud, intimidation of voters, or conspiracies to prevent citizens from exercising their constitutional rights.  This was followed by the Ku Klux Klan Act which extended criminal penalties for conspiracies, and authorized the deployment of federal troops to protect voting rights.

The post-Civil War amendments, and the enforcing laws enacted by Congress, represented a transformation, actually a revolution, in Constitutional law. “The Constitution is not now what it was,“ proclaimed Rep. Job Stevenson, Republican of Ohio. “The old, vexed question of whether this really was a national Union, or merely a disjoined confederation . . . has been settled forever.”[12]

But while the question may have been settled as a matter of Constitutional law, resistance to this conception of the Union in the name of states’ rights was never put to rest, and indeed it continues to this very day in various guises.

As support for Reconstruction waned in the 1870s, so did any enthusiasm for enforcing these laws, to the point that in 1875, one Republican newspaper pronounced the 14^th and 15^th Amendments as “dead letters.”

Nonetheless, in the upper South and elsewhere, Blacks continued to vote in significant numbers, and elected local and federal officials through the 1880s. In some areas, Blacks formed alliances with poor and upcountry whites, and even with emerging industrial interests who wanted the South to modernize.[13]

The most successful example of this was the Readjuster movement, a Black-white political alliance which held power in Virginia from 1879 through 1883. The Readjusters fought for full funding of public education, which had been curtailed due to interest payments owed to banks – hence their name, derived from their campaign to “readjust” the state debt. They also amended the state constitution to repeal the poll tax. In cities where it held power, most notably in the city of Petersburg, the Readjuster alliance made great progress in the development of public services, infrastructure, public health, and higher education.[14]

Reaction: the Counter-Revolution Begins

The Readjusters and similar alliances were crushed in the 1880s, and the period of black voter and electoral power ended around 1890 – when the period of “Jim Crow” is generally considered to have begun.  Indicative of the shifting political winds was the Congressional defeat of the proposed “Federal Elections Bill” in 1890-91, also known as the “Force Bill” or the “Lodge Force Bill” after one of its principal sponsors, Henry Cabot Lodge.  In 1888, the Republican platform charged “that the present Administration [Grover Cleveland] and the Democratic majority owe their existence to the suppression of the ballot by a criminal nullification of the Constitution and laws of the United States.”

With the support of the new President, Benjamin Harrison, Congressional Republicans drew up legislation to enlarge and strengthen the voting enforcement laws of the 1870s. The Federal Elections Bill, among other things, would have authorized citizens of a congressional district to petition the federal courts to appoint federal election supervisors, and it would have empowered federal officials and court to overturn election fraudulent results certified by state and local officials.

The bill’s defeat, and the repeal of the Enforcement Acts, brought an end to federal enforcement of the 15^th Amendment and efforts to obtain federal intervention in southern elections. These  were not to be revived until the emergence of the Civil Rights Movement in the 1960s which triggered the passage of the Voting Rights Act in 1965.

1890 saw the floodgates opened on systematic efforts by southern states to “legally” disfranchise Black voters, while not overtly violating the 15^th Amendment.  “Legal” methods that had been experimented with in the 1870s and 1880s, were now institutionalized in southern states, with effects that lasted in the mid-20^th century.[15]

In the vanguard was Mississippi, which enacted voting restrictions that effectively eliminated Black voters from the state’s political life, while still technically complying with the 15^th Amendment. These measures included a drastic increase in residency requirements, a poll tax, and a literacy test which required voters to show that they could understand and explain the state constitution.

Other states quickly followed, expanding on these requirements and adding others, such as elaborate registration systems, and the “white primary” system – utilized in Democratic-controlled Southern states where winning the primary election ensured victory in the general election.[16]

While these measures were strictly applied to potential Black voters, they could be – but weren’t always – exercised in a much looser fashion toward whites. But many southern would-be aristocrats – often referred to as “Bourbons” – were quite willing to see thousands of lower-class whites excluded too; they just couldn’t be too overt about it.

The 15^th Amendment’s explicit outlawing of discrimination based upon race, was taken to implicitly permit discrimination on the basis of economic class – and indeed, this was the standard applied by the U.S. Supreme Court through the Progressive Era, when it held that there was nothing wrong with property or tax-paying requirements for determining eligibility to vote.

Take Virginia, for example…

When the question of whether to hold a new constitutional convention was put to Virginia voters in 1900, the strongest opposition came from areas in which poor white farmers and laborers, many of whom were illiterate, were dominant.  The Democratic Party had to launch a major campaign to assure white voters that they would not lose the vote.  The 1901-02 constitutional convention set out to “purify” the ballot box by enacting measures to disfranchise Black voters without explicitly violating the 15^th Amendment. (Today, “purifying” the ballot would be described as “restoring the integrity of elections.”)

The convention dragged on for 13 months because of concerns that literacy tests would effectively take the vote away from illiterate whites in the mountainous southwestern part of the state.

Carter Glass explained to delegates that the suffrage article would “not necessarily deprive a single white man of the ballot, but will inevitably cut from the existing electorate four-fifths of the negro voters.” When Glass was asked how this would be accomplished, he responded: “By fraud, no; by discrimination, yes. But it will be a discrimination within the letter of the law, and not in violation of the law. Discrimination! Why that is precisely what we propose. . . to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution . . . .”[17]

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“The General Assembly shall enact such laws as are necessary and proper for the purpose of
securing the regularity and purity of general, local and primary elections….”  The Constitution of Virginia, 1902, which effectively disfranchised all Black voters, and half of all White voters.

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The new Virginia constitution worked as intended:  an estimated 90% of previous Black voters lost the franchise, as did about 50% of white voters! In absolute numbers, more whites than blacks were believed to have been disqualified from voting, giving control over elections and the machinery of elections to the Democratic machine which dominated Virginia politics into the 1960s.

For our purposes here, the key is Carter Glass’s declaration that, indeed, discrimination against Black voters would take place, but that it would be “discrimination within the letter of the law.” Over time, in the South and eventually much of the nation, more and more sophisticated means to discriminate “within the letter of the law” would be discovered and put into place – which made rooting it out that much more difficult.

From Jim Crow to World War II

The fight for women’s suffrage was closely linked to that of Black suffrage during the 1840s and 1850s. During the Civil War, women’s leaders willingly scaled back their efforts, in favor of Blacks and the formerly enslaved. So it was a bitter disappointment for the women’s suffrage movement when the voting provisions of the 14^th Amendment applied only to “males.”  Likewise, the 15th Amendment did not prohibit discrimination based upon sex; that did not happen until 1920, when the 19^th Amendment took effect.

Women’s suffrage was the only major change in voting rights that took place between the Jim Crow era and the 1960s, when the federal government effectively nationalized the right to vote by establishing nationwide voting standards. In principle, this created near-universal suffrage.

In the South, Jim Crow laws remained in effect for much of the 20^th century, disfranchising most Blacks and many whites as well. There was a campaign to abolish the poll tax in the 1930s, led by New Dealers and organized labor, but this was stymied when the Supreme Court upheld the constitutionality of the poll tax in 1937. In response, the House passed anti-poll tax legislation, which was filibustered to death in the Senate by southern Democrats who speciously claimed that Congress had no constitutional authority to pass such a bill.

How drastic the retrogression caused by Jim Crow was, is shown by this: Before 1890, voter turnout for presidential elections was more than 80%. After the imposition of Jim Crow laws in the South and the 15^th Amendment dormant, turnout plummeted to 20%. Even in the North, turnout was less than 60% in this period.  In off-years, turnout was even lower.[18]

Opposition to universal suffrage was widespread in the North as well as the South. Efforts to restrict access to the ballot with regard to the poor, the working class, and immigrants continued well into the 20^th century – and can be heard up to the present day in charges by some Republicans that Democrats favor unchecked immigration in order to obtain more Democratic votes, or the periodic railing against “low-information voters” – a thinly-veiled attack on minorities, poor whites, and immigrants.

Two types of changes in voting laws were dominant in the early 20^th century: changes in qualifications for people to vote, and changes in procedures – such as establishing cumbersome and time-consuming registration procedures in order to disfranchise potential voters.  Such measures were not always targeted at racial or ethnic groups; often strictly partisan interests were the motivating factor – as we also see today. And as always, naked partisan interests were frequently masked by claims that the restrictions were aimed at voter fraud or corruption. There’s nothing new about that either.

World War II upends the status quo

With one million Blacks drafted into the armed forces, and the claim that American troops were fighting for democracy, it became untenable to continue to deny Blacks the right to vote.  In 1942, Congress passed the Soldier Voting Act, which was expanded in 1944, giving Black servicemen the right to vote.

1944 also saw another important development when the Supreme Court outlawed the White Primary – which in southern, Democratic-controlled states, was yet another mechanism for disfranchising Blacks, since the winner of the primary was inevitably the winner in the general election. Southern politicians railed at the Supreme Court for what they regarded as an unconstitutional intrusion into state affairs, and responded with racial gerrymandering and intimidation, often physical.  “The best way to stop niggers from voting,“ thundered Mississippi’s Senator Theodore Bilbo at the time, “is to visit them the night before the election.”[19]

World War II marked a turning point. From 1940 to 1947, the number of Blacks who were registered to vote jumped from a mere 3% to 12%.  Restrictions on voting by Asian-Americans were also eased.

1954 brought the landmark Brown v. Board of Education decision, in which the Supreme Court demolished the “separate but equal” myth regarding schools, giving hope to Blacks and others for change in the segregationist order, and also stirring a renewed focus on breaking down barriers to voting.

Violent resistance among white southerners caused President Eisenhower to seek new civil rights legislation – the first in over 80 years.  It was too weak to have much impact; its most significant features were empowering the Justice Department and the federal court to intervene against violations of the 15^th Amendment, and the creation of the U.S. Commission on Civil Rights.

This was the situation when the revived Civil Rights movement of the 1960s burst onto the scene.

The Voting Rights Act of 1965

Led by Black activists in the South and their white allies, the movement targeted segregated public facilities in 1961 and 1962 with the Freedom Rides and sit-ins.  Confronted with fierce, violent resistance from local authorities, the movement quickly realized that no meaningful change could take place in the South unless Blacks could exercise the right to vote.  After a number of Black civil rights workers were severely beaten or killed, the movement decided to put a spotlight on the situation by organizing the Mississippi Summer Project, also known as Freedom Summer, in which hundreds of white college students, mostly from the North, were brought into Mississippi to undertake a massive voter registration drive, accompanied by educational initiatives.[20]

The brutal murder of three Civil Rights workers in Neshoba County, Mississippi in the early summer of 1964 focused national attention on Mississippi. With Blacks locked out of the Democratic Party, Freedom Summer gave rise to the alternative Mississippi Freedom Democratic Party, which took the fight to the Democratic National Convention in August 1964, where it sought to replace the regular Mississippi Democratic Party delegation.

Voter registration drives spread across the South, culminating in the mass march from Selma, Alabama to the state capital Montgomery on March 7, 1965. The violent response to the march by Alabama authorities, which became known as “Bloody Sunday,” triggered nationwide outrage, which impelled President Lyndon Johnson to propose the national Voting Rights Act to a joint session of Congress just days later.

“At times history and fate meet at a single place to shape a turning point in man’s unending search for freedom,” Johnson told Congress. “So it was a century ago at Appomattox. So it was last week in Selma, Alabama.”

Southern Democrats launched a furious campaign to block passage of the bill, but their obstruction was overcome, and the landmark legislation passed by an overwhelming bipartisan majority. President Johnson signed the bill into law on August 3, 1865, in the same room in which President Lincoln had signed the Emancipation Proclamation.

The Voting Rights Act of 1965 was entitled “An Act To enforce the fifteenth amendment to the Constitution of the United States, and for other purposes.”

It contained key provisions demanded by the Civil Rights Movement, as well as recommendations from the federal Commission on Civil Rights. In many respects, it echoed the never-passed Federal Elections Bill of 1890. Major provisions were:

• Tracking the language of the 15^th Amendment, it prohibited any election practice or procedure that would deny or abridge the right to vote on account of race or color (Section 2). This was later amended to include language discrimination. It was gutted by the U.S. Supreme Court in 2021.
• It granted robust powers to the federal courts, and the Attorney General acting through the courts, to enforce the 15^th Amendment (Section 3).
• It immediately suspended “tests or devices” used for discriminatory purposes in states and counties where fewer than 50% of all adults had voted in 1964; this included literacy tests, educational or knowledge requirements, or proof of “good moral character” (Section 4). These suspensions originally were to remain in effect for five years, but Congress latter expanded them and made them permanent.
• The “preclearance” provision (Section 5) was among the most powerful elements of the Voting Rights Act. It prohibited officials in specified areas from changing election procedures without pre-approval from the Justice Department or a federal court. This shifted the burden of proof to state and local officials. Prior to this, the Justice Department or private parties were forced to fight discrimination on a case-by-case basis, through lengthy litigation; time and time again, this was proven to be unworkable. Now, the Justice Department did not have to painstakingly prove that a practice was discriminatory, but the burden was on state or local authorities in specific jurisdiction to prove that it was not discriminatory.
• The VRA established criteria (a “coverage formula”) in Section 4(b) which determined which states and local governments were subject to preclearance under Section 5. Over the years, the coverage formula was changed, to bring many northern states and cities under its provisions. On the other hand, some southern jurisdictions were able to get out from under preclearance requirements through the law’s “bail-out” provisions. . Section 4(b), and thus Section 5, were eviscerated by the U.S. Supreme Court in 2013.
• It authorized the Attorney General and the Civil Service Commission to send federal examiners into the South to monitor voter registration practices, and to register voters themselves, enforcing the guarantees of the Fifteenth (Sections 3, 6, & 7).
• It authorized the appointment of election observers (Section 8).
• Section 11 barred any refusal to allow a qualified person to vote under color of law; it prohibited harassment or intimidation; and it addressed fraud such as false registration and double-voting.

Some of the Voting Rights Act’s provision expired after five years, requiring that Congress renew it.  Indicative of the bi-partisan consensus that supported voting rights, the bill was renewed (and sometimes expanded) by Congress in 1970, 1975, 1982, and 2007. It’s worth noting that all four of these four renewals took place under, and were signed by, Republican presidents.

The Voting Rights Act was indeed revolutionary – but it was a revolution that had been delayed for almost one hundred years.  At its root, all the Voting Rights Act of 1965 did, was to implement and enforce what the nation had declared to be fundamental law in 1869-70, with the adoption and ratification of the 15^th Amendment to the United States Constitution.

And, like all revolutions, it generated a counter-revolution – which has been accelerating in recent years.  That will be the subject of the second part of this article. (to be continued)

 

[1] This question, the fight over the nature of the Union, was explored in some depth in my series on John Marshall and Alexander Hamilton.

[2] This discussion of suffrage before, during, and after the Revolution draws heavily on the groundbreaking study The Right to Vote: The Contested History of Democracy in the United States, by Alexander Keyssar (New York; Basic Books, 2000).

[3] Keyssar, p. 15.

[4] These were: RI, DE, CT, SC, and VA.

[5] Keyssar, p. 18-19.

[6] This was changed by the 17th Amendment, ratified in 1913,  which provided for direct election of U.S. Senators.

[7] In addition to the five amendments listed herein, the other three are: 12th Amendment (1804) pertaining to the Electoral College and the counting of ballots; the 17th Amendment (1913) providing for the direct election of U.S. Senators; and the 23rd Amendment (1961) regarding the appointment of Presidential Electors to the District of Columbia.

[8] This general discussion of 19^th century suffrage patterns draws up Keyssar, op. cit., chapters 2 & 3.  The Loudoun example is found on p. 35.

[9] One of the dissenting opinions in the Dred Scott case, by Associate Justice Benjamin Curtis, stated:  “All free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.”  As such, Curtis went on the argue, Blacks were also citizens of the United States, and could not denied the rights of citizens.  Scott v. Sandford, 60 U.S. 390.

[10] “To Dr. Theodore Canisius,“ May 17, 1859, The Writings of Abraham Lincoln, Vol. 5.

[11] An extensive discussion about the 15th Amendment is contained in Eric Foner’s Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper Collins, 1988), pp. 422, 446-469.  See also Keyssar, pp. 93-104.

[12] Quoted in Foner, op. cit, pp. 454-455.

[13] Keyssar, pp. 106-108.

[14] See Edward Spannaus, “The Black-White Alliance that Once Governed Virginia,” Bulletin of Loudoun County History, 2019, pp. 36-53.

[15] This discussion of Jim Crow legal strategies draws upon Keyssar, pp. 111-115.

[16] Larry Sabato, The Democratic Party Primary in Virginia: Tantamount to Election No Longer, Charlottesville, University of Virginia Press, 1877, esp. pp. 48-52.

[17] Glass (later a U.S. Representative, U.S.  Senator, and Secretary of the Treasury) is quoted in Brent Tarter, “Disfranchisement,” in the Encyclopedia Virginia.

[18] Keyssar, p. 231.

[19] Keyssar, p. 249.

[20] Disclosure:  The author was one of those northern students who went to Mississippi in the Summer of 1964. Some of his reports and photographs can be found here and here.

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Tags: 15th Amendment, civil rights, Constitution, Edward Spannaus, elections, voter suppression, voting rights, Voting Rights Act