The Right to Vote

by Alexander Keyssar

  The Warren Court

  The eradication of racial restrictions on the franchise was promoted by federal courts in general, and by the Supreme Court in particular. As a matter of constitutional law, this was not a particularly difficult or pathbreaking exercise: the Fifteenth Amendment was explicit in rejecting racial bars, and many, but not all, judges believed that the Fourteenth Amendment—which guaranteed the “equal protection of the laws” and prohibited states from abridging “the privileges or immunities of citizens”—was also applicable to discriminatory franchise rules. Indeed, well before the 1960s, the New Deal Supreme Court had begun to shed its predecessors’ willful blinders about the realities of southern politics and discard the once-prevalent principle that laws that were not overtly discriminatory in their language did not violate the Fifteenth Amendment. In 1939, the Supreme Court had invalidated an Oklahoma law (adopted after the 1915 nullification of the state’s grandfather clause) that imposed a discriminatory registration scheme on blacks; in 1944, it had abolished the white primary; and in 1949, in Schnell v. Davis, it had ruled that Alabama’s “understanding test” was used arbitrarily to eliminate black voters. In 1960, the Supreme Court also upheld a provision of the 1957 Civil Rights Act authorizing the federal government to take legal action against registrars who were engaging in discriminatory practices.23

  Yet the Voting Rights Act required the Court to go substantially further, particularly in permitting Congress to authorize what amounted to a federal takeover of state voting law. Not surprisingly, six southern states (Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia) challenged the core provisions of the bill, arguing that they “exceed the powers of Congress and encroach on an area reserved to the States by the Constitution.” The Supreme Court emphatically rebuffed that challenge in 1966 in South Carolina v. Katzenbach, concluding that the disputed features of the Voting Rights Act “are a valid means for carrying out the commands of the Fifteenth Amendment.” The Court’s opinion, written by Chief Justice Earl Warren, included a detailed historical account both of “the blight of racial discrimination in voting, which has infected the electoral process . . . for nearly a century” and of the failure of milder forms of federal intervention to “cure the problem of voting discrimination.” Given these failures, Warren concluded, the “array of potent weapons” provided by the Voting Rights Act was a reasonable and legitimate exercise of Congress’s duty to enforce the Fifteenth Amendment. “Hopefully, millions of non-white Americans will now be able to participate for the first time on an equal basis in the government under which they live.”24

  In related cases, the Warren Court invoked the equal protection clause of the Fourteenth Amendment in defense of the Voting Rights Act. In Katzenbach v. Morgan, the Court upheld the provision of the act that prohibited the use of New York’s English-language literacy test to disqualify natives of Puerto Rico who were American citizens and had been educated in Spanish-speaking American schools. (New York had hundreds of thousands of Puerto Rican-born residents in the 1960s.) The Court in effect was utilizing the Fourteenth Amendment to extend the antidiscrimination requirements of the Fifteenth Amendment to minorities who were not of a different “race”; it also recognized the power of Congress to enact such an extension. Three years later, in 1969, the Court ruled, in Gaston County, N.C. v. United States, that a North Carolina literacy test administered without overt racial bias could be barred under the Voting Rights Act: looking behind the law to its social context, the Court concluded that segregated and inferior school systems made it more difficult for blacks to pass the literacy test. In 1970, in Oregon v. Mitchell, the Court ruled that the Fifteenth Amendment gave Congress the power to ban literacy tests or “other devices” that discriminated against blacks in state as well as federal elections.25

  By the end of the 1960s, thus, two precepts had been clearly and irretrievably etched into federal law. The first was that racial barriers to the exercise of the franchise, whether simple or sophisticated, direct or indirect, were illegal. The second was that Congress, backed by the courts, possessed the authority to take vigorous, even extraordinary, measures to dismantle any such racial barriers. After a century of contorted excursions through constitutional byways, reinforced—if not prompted—by a lack of political will, the simple brevity of the Fifteenth Amendment had returned to center stage. That critical fact was underscored by Chief Justice Warren in the literary flourish with which he concluded his opinion in South Carolina v. Katzenbach. “We may finally look forward,” he wrote, “to the day when truly ‘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.’”26

  Universal Suffrage

  Racial barriers were not the only ones to fall between the late 1950s and early 1970s. In an extraordinary burst of activity, Congress, the Supreme Court, and state legislatures took a rapid-fire series of steps to expand the franchise along several different axes. Such action was prompted in part by the debates surrounding black voting rights: If it was wrong to deny or obstruct the enfranchisement of African Americans, how could it be legitimate for states to disqualify other citizens, such as the very poor or the mobile? The issue of race effectively reopened the venerable Pandora’s box of suffrage rules, and a host of other restrictions came pouring out.

  They landed, moreover, in a receptive ideological climate shaped by World War II and the cold war, in which the virtues of democracy were being trumpeted from almost every point on the political spectrum; even if such trumpetings at times were less than sincere, they made it difficult to oppose a broad franchise. The bars to suffrage also landed in an economically thriving nation, basking in the glow of two decades of prosperity, in which both political parties appeared convinced that the elixir of economic growth had permanently diluted the class tensions and distributional politics of the past.

  Of equal importance, the Supreme Court, both reflecting and reinforcing the popular mood, broke new doctrinal ground through its embrace of democracy as a core constitutional value, a jurisprudential move that had been developing since the 1940s. The Warren Court came to see itself as the guardian of formal democratic rights, and it fashioned the equal protection clause of the Fourteenth Amendment into a formidable weapon with which to protect the ability of citizens to participate in democratic processes. Since Congress declined to pass a constitutional amendment (proposed in 1963) “to establish a free and universal franchise throughout the United States,” that weapon proved to be critical to the nation’s culminating effort to adopt universal suffrage.27

  Wealth Is Not Germane

  Economic barriers to voting were among the first to fall: although pecuniary restrictions on the franchise were relatively few in the mid-twentieth century, they did exist, and there was nothing in federal law to prohibit their application (or resuscitation) as long as they were not racially discriminatory. One of these restrictions was eliminated through the Twenty-fourth Amendment (1964), which banned poll taxes in federal elections. Enacted more than a decade after the poll tax had ceased to be a burning civil rights issue, the amendment nonetheless stemmed more from concerns about race than class. Congress (as noted earlier) pressed the issue further in section 10 of the Voting Rights Act by declaring that it viewed poll taxes, in state as well as federal elections, to be an infringement of constitutional rights. The Voting Rights Act grounded this declaration in the claim that poll taxes not only were racially discriminatory but that they kept “persons of limited means from voting,” and that there was no legitimate state interest in requiring “the payment of a poll tax as a precondition to voting.” To settle the question, the act directed the attorney general to seek a test of the constitutionality of poll taxes in the federal courts.

  The test case sought by Congress came before the Supreme Court in 1966. Harper et al. v. Virginia Board of Elections et al. originated in a suit by several Virginia residents who challe
nged the state poll tax; a district court had dismissed their complaint, citing the Supreme Court’s 1937 decision in Breedlove v. Suttles.28 The subsequent appeal to the Supreme Court produced a ringing, but not unanimous, declaration that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” In his majority opinion, Justice William O. Douglas, perhaps the most liberal member of the Warren Court, reached well beyond the issue of poll taxes to insist that wealth was “not germane to one’s ability to participate intelligently in the electoral process,” that “wealth or fee paying has . . . no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.” He justified the applicability of the equal protection clause by claiming that it “is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality. . . . Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.”29

  The two dissenting opinions filed in the case, by Justices Hugo Black and John Harlan (joined by Potter Stewart), took direct aim at the ideological basis of the majority’s invocation of the equal protection clause. All of the justices agreed that poll taxes were repugnant, but the dissenters argued that financial qualifications for voting were not necessarily irrational or arbitrary and therefore did not fall under the scope of the equal protection clause: it was not for the courts, they held, but for Congress or the American people (through a constitutional amendment) to adopt a new political theory. “Property and poll-tax qualifications, very simply, are not in accord with current egalitarian notions of how a modern democracy should be organized,” Harlan concluded, but it was up to the “legislatures” to “modify the law to reflect such changes in popular attitudes.” The dissenters in effect were arguing that democracy should be expanded only through democratic means, while the majority was insisting that universal suffrage was already an established value that the judiciary was obliged to protect.30

  The dissenters in fact may have had the more cogent and historically grounded legal argument. Since the nation’s founding, there had always been plausible—if elitist—rationales for economic qualifications, and as Black pointed out, Douglas never even attempted to show why such qualifications were arbitrary, capricious, or irrelevant. Moreover, even putting aside longstanding debates about the proper role of the judiciary in American governance, there was much to be said for allowing the people, or their elected representatives, to determine the shape of the polity. Nonetheless, the majority opinion reflected another set of historical truths: that there was always conflict about the breadth of the franchise and that those who possessed it could not necessarily be counted on to extend the right to others. Faced with this reality, it made sense for an insulated institution such as the Court to defend what it believed to be a fundamental element of American politics. Or, stated somewhat differently, if the nation truly embraced the political theory that it celebrated, if—as was so widely proclaimed in American public life—the United States was the embodiment and standard-bearer of democratic values, then it was reasonable for the Court to ensure that the nation’s laws matched those values.31

  As a matter of constitutional law, Harper’s significance resided in its innovative use of the equal protection clause of the Fourteenth Amendment. From a broader, more historical standpoint, the case’s significance was far greater and less technical: almost two centuries after the nation’s founding, economic restrictions on voting had been abolished in all general elections. What once had been believed to be the most essential qualification for the franchise—the possession of property—officially had been judged irrelevant. The United States may have been the first nation to begin dismantling class limitations on the suffrage, but it was among the last to complete the process. That this final step was taken during a period of unprecedented wealth and prosperity, in an era marked by the celebration of the United States as a society in which class boundaries had dissolved (if they ever existed) was surely not a coincidence. Nor, perhaps, was it coincidental that the author of the Harper opinion (like the chief justice himself) had grown up in dire poverty.32

  The 1960s also witnessed the abolition of another vestigial class limitation on suffrage: the disfranchisement of paupers. Roughly half of the states that once had pauper exclusions had repealed them by 1960, but such laws—though rarely enforced after the 1930s—remained on the books in Delaware, Maine, Massachusetts, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Virginia, and West Virginia. (Missouri, in addition, excluded persons kept in “poorhouses.”) As late as 1956, Congress, in drawing up a poll tax amendment (which eventually became the Twenty-fourth Amendment) considered adding a clause to permit states to retain their pauper exclusion provisions. In 1957, the Oklahoma Supreme Court tacitly sanctioned that state’s pauper exclusion, while concluding that it did not apply to persons receiving old-age assistance.33

  Still, by the 1960s such laws appeared to most Americans to be archaic and indefensible. Oklahoma eliminated its requirement in a referendum in 1964, and Maine did the same the following year. The Harper decision was the final nail in the coffin: its broad language made clear that pauper exclusion laws no longer could withstand judicial scrutiny. As a result, state legal codes and constitutions were revised to bring the letter of the law into line with the new reading of the federal Constitution. Remarkably, this process revealed that many Americans still believed that the dependent poor ought to remain disfranchised. In 1972, Massachusetts held a referendum on deleting the pauper exclusion clause from its constitution: the referendum passed, but more than 400,000 people (roughly 20 percent of the electorate) voted against it—and Massachusetts, in 1972, was the only state carried by the liberal Democratic presidential candidate, George McGovern. The people of Rhode Island affirmed that state’s long history of contrariness by rejecting such an amendment altogether.34

  The attack on economic qualifications quickly carried over into the last domain in which they endured: municipal or special-purpose elections that restricted the franchise to those who owned property or paid taxes. Once again the Supreme Court, rather than state governments or Congress, led the attack, and once again the equal protection clause of the Fourteenth Amendment was the Court’s primary weapon. In Kramer v. Union Free School District (1969), the Court considered a challenge to the New York law that permitted residents of some school districts to vote in school elections only if they owned taxable real property in the district or had a child enrolled in the public schools. With Justices Stewart, Harlan, and Black again dissenting, the Court ruled that the law violated the equal protection clause. Writing for the majority and self-consciously establishing a precedent, Chief Justice Warren declared that any “statutes which deny some residents the right to vote” had to come under the “strict scrutiny” of the Court, that the Court’s usual deference “to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials.” This was so “because statutes distributing the franchise constitute the foundation of our representative society.”35

  Strict scrutiny was a concept that would loom large in later suffrage law, and what it meant was that any restriction on the franchise had to be “necessary to promote a compelling state interest.” To pass strict scrutiny, exclusionary laws also had to be tailored with great precision, so that “all those excluded” were clearly less interested in or affected by the election’s outcome than those who were permitted to vote. In careful judicial fashion, the Court declined to address the first issue—whether in theory there could be a state interest compelling enough to warrant exclusions in school elections—while announcing that New York’s law had failed the second test. Many residents excluded by the law had an interest in the quality of the schools and were aff
ected by the school budget and property tax rates.

  What the Court had done in effect was to recognize the potential legitimacy of property-based restrictions in special elections, while setting the bar very high—almost impossibly high. Its stance was elaborated in another case decided simultaneously, Cipriano v. Houma. In that case, the Court overturned a Louisiana law that permitted property taxpayers alone to vote on the issuance of revenue bonds by a municipal utility: since the bonds were to be paid from the revenues of the utility, and nontaxpayers also used and paid for the utility, the Court ruled that the exclusion of nontaxpayers was illegitimate. The following year, the Court issued a similar yet more far-reaching decision regarding an Arizona statute that restricted the franchise to real property owners in elections approving the issuance of general obligation bonds (that would be paid back through taxes). In City of Phoenix, Arizona v. Koldziejski, the Court ruled that non-property owners were just as interested as property owners in public facilities funded through bonds, and they contributed to tax revenues by paying rent. The Arizona statute consequently was struck down. Within two years of the Phoenix decision, similar laws in nine other states were either repealed or overturned by the lower courts. One of the more significant, if relatively invisible, late-nineteenth- and twentieth-century strategies for circumventing the absence of general property qualifications had met its end.36