The Right to Vote

by Alexander Keyssar

  Despite this setback, the approach continued to gain adherents among both civil rights and prisoners’ rights activists, many of whom believed the Wesley decision to be flawed. By the 1990s, something close to a full-blown legal strategy was being proposed, grounded in two well-documented empirical findings. The first was that a hugely disproportionate number of prison inmates and convicted felons were black or Hispanic. In the early 1990s, for example, 63 percent of all prisoners in Illinois were black (compared to 15 percent of the population); in New York, roughly 80 percent of all parolees and inmates were Hispanic or black. The second key finding was that minorities were treated in a discriminatory fashion by the criminal justice system: blacks and Hispanics were targeted by the police and arrested far more often than were whites. Minorities also were far more likely to be sentenced to prison, and for longer terms, than were whites convicted of committing the same crimes. These racial disparities were particularly visible in drug-related cases, which had come to constitute a sizable proportion of all felony convictions. Discrimination in the justice system thus made minorities more vulnerable to disfranchisement. The argument was deepened, sociologically if not legally, by the claim that racial discrimination kept many minorities in disadvantaged socioeconomic circumstances, which made them more likely to commit crimes. Opponents of criminal disfranchisement also argued that electoral turnout levels among the poor already had fallen to a perilous low and that the state should seek to reverse rather than aggravate that trend.112

  This strategy made a small amount of headway both in the 1990s and after the turn of the century, with several lower courts suggesting that the Voting Rights Act could indeed “apply to felon disenfranchisement laws.”113 In the end, however, no state laws were struck down on these grounds, and the scope of the exclusions remained substantial. Although, by the late 1990s, only ten states continued to impose lifetime disfranchisement on convicted felons, every state except Maine, Massachusetts, and Vermont disfranchised convicted felons while they were incarcerated, and most also excluded men and women who were on probation or parole: roughly four million people were thereby kept from the polls. The impact of these laws on minority populations was striking, especially in states that retained permanent disenfranchisement. Nationwide, 14 percent of black males were barred from the polls at the end of the twentieth century; in Alabama and Florida, nearly one-third of all black men were disfranchised, and the figure was only slightly lower in Iowa, Mississippi, New Mexico, Virginia, Washington, and Wyoming. These numbers were sufficient to have affected the outcomes of elections in numerous states.114

  The persistence of felon disfranchisement laws pointed to the limits of the revolution in voting rights that had occurred in the 1960s and 1970s. Although race, class, mobility, literacy, and the ability to speak English had ceased to be formal impediments to voting, good behavior was still required. However weak the rationales for these laws may have been, states retained, and exercised, the power to banish the unlawful and the unruly from the polity. By the late twentieth century, voting had become a right belonging to all American citizens, yet it remained a right that could be lost or taken away as a means—largely symbolic—of promoting social discipline.

  Immigrants and Aliens Redux

  After playing a large, even leading role in the drama of voting rights in the nineteenth and early twentieth centuries, immigrants quickly receded from view. The key to the shift lay in the numbers: immigration levels plummeted during World War I, remained very low until the late 1940s, and rose only gradually between 1950 and 1965. Those who did come were, for the most part, easily absorbed into American society and into the political institutions created in earlier decades. The potentially most troublesome group (from the vantage point of natives) was the hundreds of thousands of men and women from Mexico who served as a reserve army of labor for American agriculture in the Southwest and West. The political threat posed by Mexicans, however, was greatly diminished by their low rate of naturalization—the result both of their desire to retain Mexican citizenship and of the federal government’s bracero program, which admitted scores of thousands of Mexican laborers each year on expressly temporary visas.115

  By the time that immigration rates began to rise significantly, during the final quarter of the twentieth century, the transformation of suffrage law was already well under way, and new legal principles protected immigrants against forms of discrimination that had been widespread in 1880 and 1910. Literacy tests could not be imposed; mastery of English was not essential (after 1975); geographic mobility was not penalized; and special requirements, such as waiting periods or the presentation of naturalization documents, fell by the wayside, at least in part because of the looming umbrella of the equal protection clause. Immigrant citizens could not be treated differently than other citizens, which meant that they had to be gradually incorporated into the polity.116

  Yet not all foreign-born residents of the United States were citizens: indeed, the percentage who were naturalized dropped from nearly 80 percent in 1950 to 40 percent in 1990. By 1996, there were ten and a half million legally resident aliens in the nation, most of whom had come from either Asia or Latin America. In addition, the number of illegal aliens was estimated to be in the vicinity of five million in the 1980s and closer to ten million by 2005. Whether legal or illegal, these noncitizens all lacked political rights. Felons may have been the largest single group of disfranchised citizens, but aliens by far were the largest group of adults barred from participation in American politics.117

  The laws governing the voting rights (or lack thereof) of these men and women were unusually clear-cut. After the nation’s experiment with declarant alien voting had come to a close in the 1920s, all states required voters to be citizens. The federal government sanctioned that qualification: citizenship was considered to be a reasonable qualification for voting, one that did not violate any tenets of the Constitution. Although several attempts were made to include aliens under the broad canopy of the equal protection clause, these made little headway in the courts.118

  The resurgence of immigration, however, reignited interest in alien voting, particularly in local elections. The argument for stretching the boundaries of the franchise was straightforward: in many communities, thousands of noncitizens paid taxes, owned homes, held jobs, and had children in public schools. They contributed to the public purse, were affected by public policies, and sometimes were subject to military service: consequently, they ought to have a voice in government. Stated somewhat differently, they were de facto if not de jure citizens; they behaved as citizens, even if they lacked official status. Between the late 1970s and 1990s, the notion that noncitizens ought to be enfranchised, at least in local elections, was buttressed by a growing awareness of changing practices in other nations. Ireland, the Netherlands, and all of the Scandinavian states permitted noncitizen residents to vote in local elections, while New Zealand enfranchised all residents in all elections. In 1993, the Maastricht Treaty permitted all citizens of European member states to vote in local elections where they resided—regardless of their national citizenship.119

  This assembly of concerns prompted a number of locales to offer at least limited suffrage to noncitizen residents. Beginning in 1968, New York authorized aliens whose children were in public schools to vote in community school board elections; Chicago subsequently did the same; and parents in Los Angeles and San Francisco sought similar rights in the 1990s. In 1992, moreover, the small, Washington-area city of Takoma Park joined a number of its Maryland neighbors by amending its charter to enfranchise noncitizens in all local elections: the decision was prompted by a 1990 redistricting, which revealed that wards that were equal in population had very unequal numbers of eligible voters—because some neighborhoods were filled with alien residents. The city, which had a reputation as a bastion of progressive politics, then voted to permit noncitizens to participate in elections. Its action sparked controversy in the Maryland legislature, but Takoma Park and other
communities with similar regulations successfully defended their home rule right to expand the franchise.120

  Takoma Park, however, proved to be an exception rather than a harbinger of things to come. Although significant drives to enfranchise noncitizens in local elections were mounted in numerous cities between the mid-1990s and 2005 (including New York, San Francisco, Los Angeles, Washington, and several cities in Massachusetts), they all fell short, defeated either by legislators or in referenda. The conditions that had fostered the nineteenth-century alien suffrage laws—the desire to attract settlers, most critically—no longer obtained; and arguments about equity or fairness were overwhelmed by the fears spawned by the huge new waves of (particularly Latino) immigration. In some parts of the nation, public debate in the 1990s and after the turn of the century focused more on contracting than expanding the legal rights of immigrants, on closing the borders rather than incorporating those who were already here. In 1996 Congress took the unusual step of passing a law prohibiting noncitizens from voting in federal elections. “Voting and citizenship are so inextricably bound in this country that it’s hard to imagine one without the other,” editorialized the San Francisco Examiner. By the end of the twentieth century, few Americans knew that voting and citizenship had not always been so inextricably linked.121

  Getting the Electorate to the Polls

  The Congress finds that—1. the right of citizens of the United States to vote is a fundamental right;

  2. it is the duty of the Federal, State and local governments to promote the exercise of that right; and

  3. discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.

  —THE NATIONAL VOTER REGISTRATION ACT OF 1993

  In 1988, two prominent scholar-activists, Frances Fox Piven and Richard A. Cloward, published an influential book entitled Why Americans Don’t Vote. Their subject, as the title suggests, was the extraordinarily low electoral turnout among Americans, particularly poor and young Americans. Although the authors presented a complex historical and structural analysis of this phenomenon, they wrote with a particular target in mind: the registration laws that in almost all states governed the procedures through which eligible adults could become voters. To Piven and Cloward, these laws loomed as the critical source of nonparticipation (and thus powerlessness) of the nation’s poorest and least well-educated citizens: they did not constrict the right to vote per se, but they constituted a major class-biased obstacle to the exercise of that right. Many other scholars—if less single-minded in their analyses—agreed that the registration laws were an impediment to a fully participatory democracy.122

  Registration laws (described in Chapter 5) emerged in the nineteenth century as a means of keeping track of voters and preventing fraud; they also served—and often were intended to serve—as a means of keeping African-American, working-class, immigrant, and poor voters from the polls. First placed on the books between the 1850s and World War I, registration laws were frequently revised by state legislatures in the course of the twentieth century. In some states, procedures were simplified and made easier; elsewhere they remained complex and difficult to navigate. As always, the devil was in the details: the laws specified when and where people could register, how often they had to register, whether or not the names of nonvoters were periodically “purged,” the procedures to be followed if a voter moved from one precinct to another, the hours that registry offices were open, and the documentation that had to be presented to registrars. In 1974, the federal courts, while affirming the legitimacy of reasonable and uniform registration procedures, made clear that such details mattered: the courts struck down a Texas law permitting registration only during a four-month period, long before elections, because it imposed too onerous a burden on prospective voters and thus impeded their right to vote.123

  The concern that registration procedures were depressing turnout—and therefore ran counter to the new spirit of voting laws in general—led many states in the 1970s and 1980s to streamline their registration procedures. Some permitted registration by mail; others allowed voters to register at a wide range of public offices; a few even allowed voters to register on election day. But the effects of some of these reforms (such as registration by mail) were often slight, and numerous states resisted such actions altogether. As a result, the federal government began to consider the imposition of national voter registration standards. As early as 1962, a presidential commission, reflecting concerns about low levels of turnout, recommended significant reforms in state registration laws.124

  The first major proposals for national legislation came in the 1970s. Between 1972 and 1976, Congress considered several bills that would have required the states to permit postcard or mail-in registration: these were defeated by a coalition of Republicans and southern Democrats. In 1977 President Jimmy Carter offered the National Uniform Registration Act, which mandated election-day registration. To Carter’s stated surprise, his bill encountered fierce opposition in Congress: almost all Republicans opposed it (on the grounds that it would facilitate corruption), as did many conservative Democrats, and a few liberals as well. Carter attributed the opposition to the reluctance of incumbents to expand their own electorates, which could make reelection more problematic. Yet as Carter surely knew, there were partisan factors as well. Easing registration requirements was widely perceived as a step that would help Democrats and hurt Republicans: most of the new enrollees were expected to be poor, members of minority groups, or young, and all of these groups tended to vote Democratic.125

  Despite their defeats in Congress, proponents of registration reform, spurred on by the election of Ronald Reagan, renewed their efforts in the 1980s. One proposal was to coordinate all registration through the Postal Service, but opposition to the idea was too widespread (including among postal workers) for it to get very far. Another was “agency registration,” permitting prospective voters to enroll at a variety of public facilities, such as libraries, welfare offices, and motor vehicle bureaus: the latter seemed particularly promising, since 85 percent of adult Americans had drivers’ licenses that periodically had to be renewed and already served as identification papers. This idea had been adopted by Michigan in 1977 and subsequently was embraced by other states, thanks in part to the energetic lobbying of a broad coalition of progressive and good-government groups, including the League of Women Voters and Project SERVE, which Piven and Cloward themselves had helped to found. In addition to state legislation, bills calling for agency and motor vehicle bureau registration, as well as registration by mail and election-day registration, were introduced in Congress in the late 1980s.126

  The rationale put forward for these proposals was straightforward and ostensibly nonpartisan. Low voter turnout was deemed to be a defect of American politics, and making registration easier, it was argued, would go a long way toward solving the problem: more than 80 percent of Americans who were registered did in fact participate in elections. Proponents maintained that the United States was almost unique in placing the burden of registration on the individual (rather than the state); they also pointed out that countries and states with less burdensome registration procedures tended to have higher turnout. Turnout in Michigan, for example, had increased by more than 10 percent after passage of its “motor voter” bill. Facilitating registration thus would improve the health and vitality of the polity.127

  Proponents of reform also had a partisan, or political, agenda. Progressives such as Piven and Cloward wanted to enhance the voting strength of disadvantaged groups whose interests were being ignored or worse by Reagan Republicanism. Not surprisingly, thus, most Republicans opposed the reforms, although they too defended their position in nonpartisan terms. Republicans argued that registration by mail and same-day registration would increase fraud and that agency registration would be unduly expensive
. Some also insisted that any federal law would be an unconstitutional intrusion into an arena traditionally regulated by the states. Senator Mitch McConnell, a Kentucky Republican who led the fight against national legislation, even denied that a “turnout problem” existed. “Low voter turnout is a sign of a content democracy,” he proclaimed.128

  Federal registration bills came to the floor of Congress between 1988 and 1991: their usual fate was to be filibustered to death by Republicans who opposed the legislation but did not want to vote directly against it. In the spring of 1992, however, some key Republican defections, coupled with a looming election, led to the passage of a compromise motor voter bill. As he had threatened to do, President George Bush vetoed the legislation, arguing that it “imposes an unnecessary and costly federal regime on the states” and was “an open invitation to fraud and corruption.” The president also maintained that the bill was “constitutionally suspect.”129