The Right to Vote

by Alexander Keyssar

  77 Grofman, Handley, and Niemi, Minority Representation, 37; Lawson, In Pursuit of Power, 279-280; Chandler Davidson, “Minority Vote Dilution: An Overview,” in Chandler Davidson, ed., Minority Vote Dilution (Washington, DC, 1984), 2-3.

  78 Grofman, Handley, and Niemi, Minority Representation, 41; Davidson, “Minority Vote Dilution,” 18; Armand Derfner, “Vote Dilution and the Voting Rights Act Amendments of 1982,” in Chandler Davidson, ed., Minority Vote Dilution (Washington, DC, 1984), 145-165. The new wording applied only to claims brought under the Voting Rights Act itself, rather than constitutional claims under the Fourteenth and Fifteenth Amendments.

  79 Thornburg v. Gingles, 478 U.S. 30, 83 (1986); Grofman, Handley, and Niemi, Minority Representation , 48-54.

  80 Grofman, Handley, and Niemi, Minority Representation, 54-81. For examples of lower courts wrestling with the issues, see Nash v. Blunt, 797 F. Supp. 1488 (W.D. Mo. 1992), and Garza v. County of Los Angeles, 918 F. 2d 763 (9th Cir 1991).

  81 Henderson, “Lost in the Woods,” 21-22, n.137; Andrea Bierstein, “Millennium Approaches: The Future of the Voting Rights Act After Shaw, De Grandy, and Holder,” Hastings Law Journal 46 (1995): 1508-1510; Kousser, Colorblind Injustice, 243-276, 377-383.

  82 Shaw v. Reno, 509 U.S. 630, 657 (1993); Kousser, Colorblind Injustice, 383-393; Henderson, “Lost in the Woods,” 21-23.

  83 Miller v. Johnson, 515 U.S. 900, 923 (1995); Henderson, “Lost in the Woods,” 25-38.

  84 Holder v. Hall, 512 U.S. 874, 880 (1994); Bierstein, “Millennium Approaches,” 1512-1525. The findings in this case were partially prefigured by the Court’s decision in Presley v. Etowah County Commission, 502 U.S. 491 (1992), an Alabama case in which, after blacks obtained the right to vote for county commissioners, the powers of those commissioners was sharply restricted: the Court ruled that this did not violate the preclearance provisions of the Voting Rights Act. New York Times, 28 January 1992; Washington Post, 2 February 1992.

  85 Holder v. Hall, 891-945. For criticisms of Thomas, see works by Kousser, Henderson, and Bierstein cited herein.

  86 Johnson v. De Grandy, 512 U.S. 997 (1994); Shaw v. Hunt, 517 U.S. 899 (1996); Bush v. Vera, 517 U.S. 952 (1996); African-American Voting Rights Legal Defense Fund v. State of Missouri, 994 F. Supp. 1105 (E.D. Mo. 1997); Bierstein, “Millennium Approaches,” 1522-1525; Donovan L. Wickline, “Note: Walking a Tightrope: Redrawing Congressional District Lines After Shaw v. Reno and Its Progeny,” Fordham Urban Law Journal 25 (Spring 1998): 641; Judith Reed, “Sense and Nonsense: Standing in the Racial Districting Cases as a Window on the Supreme Court’s View of the Right to Vote,” Michigan Journal of Race and Law 4 (Spring 1999): 389-457; Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes, The Law of Democracy: Legal Structure of the Political Process (New York, 1998), 590-603; Kousser, Colorblind Injustice, 396-455. Justice Ginsburg, in her dissent in Holder, agreed with the majority opinion that there was a tension built into the 1982 amendments to the Voting Rights Act because the goal of allowing vote dilution claims to be pressed conflicted with the denial of a “right to proportional representation for minority voters.”

  87 Shaw v. Hunt, 517 U.S. 899 (1996); Easley v. Cromartie, 121 S. Ct. 1452 (2001); New York Times, 19 April 2001. For a detailed narrative account of these cases, see Tinsley E. Yarbrough, Race and Redistricting: The Shaw-Cromartie Cases (Kansas, 2002).

  88 Pamela S. Karlan, “The Court Finds Room for Racial Candor,” New York Times 23 April 2001; Richard H. Pildes, “Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s,” North Carolina Law Review 80 ( June 2002): 1539-1573; Richard H. Pildes, “Foreword: The Constitutionalization of Democratic Politics,” Harvard Law Review 118 (November 2004): 66-69. As Pildes notes (pp. 56-65), the Court in 2004 issued an ambiguous verdict about the constitutionality of partisan gerrymanders. (Vieth v. Jubelirer, 541 US 267, 158 L Ed 2d 546, 124 S Ct 1769 [2004], entire. Four justices regarded the issue as nonjusticiable; they were joined in the majority by Justice Anthony Kennedy although Kennedy suggested that the courts could intervene in such cases in the future if a workable standard could be developed for gauging when a gerrymander was excessive. Four other justices were prepared to restrict extreme versions of partisan gerrymandering).

  89 A “coalition” district was one where different blocs of voters—such as blacks and Hispanics or black and white Democrats—could potentially join forces to elect candidates; an “influence” district was one with a large enough minority of African Americans or Hispanics to have a significant influence on the election’s outcome. Regarding coalition and influence districts in other states and in the law, see New York Times, 24 April 2001; Pildes, “Voting-Rights Law,” 1551-1567; Carol M. Swain, “Race,” A11-A13; Pildes, “Constitutionalization,” 89-91.

  90 Georgia v. Ashcroft, 539 US 461 (2003), 468, 479; Pildes, “Constitutionalization,” 89-96; Swain, “Race,” A12.

  91 Pildes, “Constitutionalization,” 92; Tucker, “Politics of Persuasion,” 221-223; Kousser, “Strange, Ironic Career,” 732-737, 739-741, 745-757. Pildes, “The Decline of Legally Mandated Minority Representation,” Ohio State Law Journal 68 (2007): 1147-1148, 1156. Congress also modified the wording of section 5 to address issues raised by the Court’s decision in Reno v. Bossier Parish School Board (1997), a case that constricted the ability of the federal government to object to changes in voting that had a discriminatory purpose but were not overtly retrogressive.

  92 League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006), 433; Richard H. Pildes, “Decline,” 1144-1148; Daniel R. Ortiz, “Cultural Compactness,” Michigan Law Review First Impressions 105 (2006): 48-52, http://www.michiganlawreview.org/firstimpressions/vol105/ortiz.pdf. Ortiz coined the term “cultural compactness.”

  93 See, for example, the following articles which were all published in the Ohio State Law Journal 68 (2007): Heather Gerken, “Rashomon and the Roberts Court,” 1213-1237; Pildes, “Decline,” 1139-1161; Ellen D. Katz, “Reviving the Right to Vote,” 1163-1184; Pamela S. Karlan, “New Beginnings and Dead Ends in the Law of Democracy,” 743-766; Edward B. Foley, “Election Law and the Roberts Court: an Introduction,” 739; Guy-Uriel E. Charles, “Race Redistricting, and Representation,” 1185-1212.

  94 For an analysis of partisan interests, see Kousser, Colorblind Injustice, esp. 366-450. Among the most sharply argued of the pieces written by scholars are Kousser, Colorblind Injustice, and Thernstrom, Whose Votes Count?

  95 I owe a debt here to the analysis put forward by Andrea Bierstein in “Millennium Approaches,” cited herein.

  96 Cf. Reed, “Sense and Nonsense,” 418-455, and Grofman, Handley, and Niemi, Minority Representation , 53-81.

  97 Steven J. Mulroy, “The Way Out: A Legal Standard for Imposing Alternative Electoral Systems as Voting Rights Remedies,” Harvard Civil Rights-Civil Liberties Law Review 33 (Summer 1998): 333-371; Bierstein, “Millennium Approaches,” 1525-1530; Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (New York, 1994); Henderson, “Lost in the Woods,” 41-45. Even Justice Thomas, in his opinion in Holder, suggested some potential sympathy for a system of proportional representation, or at least an openness to considering “other voting mechanisms . . . that can produce proportional results without requiring division of the electorate into racially segregated districts.” Cutting in the opposite direction, in 1997, the Court upheld a Minnesota ban on multiparty candidacies; in her concurring opinion, Justice O’Connor expressed the view that states were free to adopt policies that would advantage the two major parties, reflecting a belief that “political stability is best served through a healthy two-party system.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (1997). Preserving a two-party system, of course, would be inconsistent with the goals of proportional representation. Mulroy notes that a few lower courts already have begun to consider alternatives to winner-take-all elections. Mulroy, “The Way Out.”

  98 The ar
ticles cited here offer slightly varying figures regarding the number of states with provisions of different types. Each contains an inventory of the state laws, the most complete of which is in Howard Itzkowitz and Lauren Oldak, “Note: Restoring the Ex-offender’s Right to Vote: Background and Developments,” American Criminal Law Review 11 (1973): 721-770; “Note: The Need for Reform of Ex-Felon Disfranchisement Laws,” Yale Law Journal 83 (1974): 582-584; Vanderbilt Law Review 23 (1970): 975-987; “Note: The Equal Protection Clause as a Limitation of the States’ Power to Disfranchise Those Convicted of a Crime,” Rutgers Law Review 21 (1967): 298-300; Gary L. Reback, “Note: Disenfranchisement of Ex-Felons: A Reassessment,” Stanford Law Review 25 (1973): 845-864; Douglas R. Tims, “The Disenfranchisement of Ex-felons: A Cruelly Excessive Punishment,” Southwestern University Law Review 7 (1975): 124-160; Civil Rights Commission, Voting, 1961, 69. See also Chapter 9 herein as well as Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (New York, 2006).

  99 Itzkowitz and Oldak, “Restoring,” 731-739; Reback, “Disenfranchisement,” 858-861; Tims, “Disenfranchisement,” 154-160. Tims and others have argued that these laws are subject to attack under the Eighth Amendment of the Constitution, prohibiting cruel and unusual punishment, but such claims have never made much headway in court.

  100 “Equal Protection Clause,” 309-315; “Need for Reform,” 585-588; “Note: The Disenfranchisement of Ex-felons: Citizenship, Criminality, and ‘The Purity of the Ballot Box,’” Harvard Law Review 102 (1989): 1301-1309.

  101 Itzkowitz and Oldak, “Restoring,” 755-757; Tims, “Disenfranchisement,” 126n.14. For an excellent example of state deliberations on the issue, see Ohio Constitutional Revision Commission Proceedings Research, vol. 5 (Columbus, 1977), 2358-2366, 2513-2535. In Ohio, as elsewhere, such consideration was accompanied by revision of the exclusion of “idiots” and the “insane” and the introduction of the more benign-sounding concept of “mental competence.” (See Chapter 9.) Regarding the voting rights of the mentally disabled, see “Note: Mental Disability and the Right to Vote,” Yale Law Journal 88 (1979): 1644; Joel E. Smith, “Voting Rights of Persons Mentally Incapacitated,” American Law Reports 80 (1977): 1116.

  102 “Equal Protection Clause,” 299-300.

  103 Otsuka v. Hite, 64 Cal. 2d 596, 598 (Cal. 1966); B. E. Witkin, Summary of California Law, vol. 5, 8th ed. (San Francisco, 1974), 3360-3362; “Equal Protection Clause,” 301-302.

  104 Green v. Board of Elections, 380 F. 2d 445, 451 (2d Cir 1967). Green also held that disfranchisement was not cruel or unusual punishment. Florida’s law was upheld by a district court in Beacham v. Braterman, 300 F. Supp. 182 (S.D. Fla. 1969). New York’s courts, in 1972, also ruled that it was permissible for a state statute to prevent incarcerated prisoners awaiting trial from registering to vote and thus from obtaining absentee ballots; there was, however, a dissent arguing that this was discriminatory because those “confined to our prisons awaiting trial are, for the most part, the politically disconnected and the financially disabled.” O’Brien v. Skinner, 338 N.Y.S. 2d 890 (N.Y. 1972). Regarding Green and other cases of this period, see Itzkowitz and Oldak, “Restoring,” 744-750.

  105 Dillenburg v. Kramer, 469 F. 2d 1222, 1226 (9th Cir 1972); Itzkowitz and Oldak, “Restoring,” 753-754; Reback, “Disenfranchisement,” 848-857; Tims, “Disenfranchisement,” 133-134.

  106 Tims, “Disenfranchisement,” 134-136; Statutes of California and Digests of Measures, 1972, vol. 2, comp. George H. Murphy (n.p., n.d.), 3382.

  107 Richardson v. Ramirez, 418 U.S. 24, 43 (1974); Tims, “Disenfranchisement,” 138-141.

  108 The California Constitution was amended on 5 November 1974 to disqualify electors only “while ... imprisoned or on parole for the conviction of a felony.” Statutes of California and Digests of Measures, 1974, vol. 2, comp. George H. Murphy (n.p., n.d.), 3736.

  109 In 1983, the federal courts also ruled that states can distinguish among convicted felons as long as the distinction is reasonably related to a legitimate state interest. Owens v. Barnes, 711 F. 2d 25 (3d Cir 1983).

  110 Between 1967 and 1975, fourteen states dropped their laws enfranchising ex-felons. Tims, “Disenfranchisement,” 140-141; Hunter v. Underwood, 471 U.S. 222 (1985).

  111 Wesley v. Collins, 791 F. 2d 1255, 1261 (6th Cir 1986).

  112 Andrew L. Shapiro, “Note: Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy,” Yale Law Journal 103 (October 1993): 537-566; Andrew L. Shapiro, “Giving Cons and Ex-Cons the Vote,” Nation (20 December 1993): 767-768; Alice E. Harvey, “Comment: Ex-Felon Disenfranchisement and Its Influence on the Black Vote: The Need for a Second Look,” University of Pennsylvania Law Review 142 ( January 1994): 1145-1189.

  113 Baker v. Pataki, 85 F. 3d 919, 940 n.10 (2d Cir 1996); Farrakhan v. Locke, 987 F. Supp. 1304 (E.D. Wash. 1997); Farrakhan v. Gregoire, 2:96-cv-00076-RHW (E.D. Wash. 2006); Hayden v. Pataki, 2004 U.S. Dist. LEXIS 10863 (S.D.N.Y. June 14, 2004); Hayden v. Pataki, 449 F.3d 305, 2006 U.S. App. (2d Cir. N.Y. 2006).

  114 New York Times, 23 October 1998; New York Times, 30 January 1997; Shapiro, “Challenging Criminal Disenfranchisement,” 538-539, 564, 566 n.146; Shapiro, “Cons,” 767-768. Two additional states provided for lifetime disfranchisement after a second felony conviction. A Massachusetts court, in 1983, ruled that incarcerated prisoners had to be provided with the opportunity to register and to vote as absentees. Cepulonis v. Secy. of Commonwealth, 452 N.E. 2d 1137 (Mass. 1983).

  115 Reed Ueda, Postwar Immigrant America: A Social History (Boston, 1994), 33-34, 60; Raymond E. Wolfinger and Steven J. Rosenstone, Who Votes? (New Haven, CT, 1980), 92-93.

  116 Van Berkel v. Power, 254 N.Y.S. 2d 74 (N.Y. Sup. Ct. 1964); this was reversed by an appeals court, but New York’s ninety-day waiting period clearly violated Dunn, which was decided several years later. Massachusetts dropped its law requiring immigrants to present naturalization papers in 1971.

  117 Ueda, Postwar Immigrant America, 46-48, 125-128; “Time to Give Aliens the Vote (Again),” Nation (5 April 1993): 452; Census Bureau report issued on the Internet on 9 March 1999; Immigration and Naturalization Service Internet report issued on 20 November 1996; Ronald Hayduk, Democracy for All: Restoring Immigrant Voting Rights in the United States (New York, 2006), 53-54. One consequence of the termination of the bracero program in 1964 was an increase in the flow of Hispanics through illegal channels of migration. Given the size of the alien population, it is hardly surprising that in 1996, the Democrats took steps to try to accelerate the processing of citizenship applications, which led to Republican charges of a “get out the vote conspiracy.” New York Times, 13 September 1996.

  118 Jamin B. Raskin, “Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage,” University of Pennsylvania Law Review 141 (April 1993): 1428, 1431-1433; Gerald M. Rosberg, “Aliens and Equal Protection: Why Not the Right to Vote?” Michigan Law Review 75 (1977): 1100-1101, 1106-1110; Padilla v. Allison, 38 Cal. App. 3d 784 (Cal. App. 5 1974). Several courts, including the Supreme Courts of Alaska and Colorado, have ruled that the exclusion of aliens did not violate the equal protection clause. A Colorado court concluded flatly that “aliens are not a part of the political community.”

  119 Raskin, “Legal Aliens,” 1395, 1442-1445; idem, “Time,” 452; Gerald L. Neuman, “We Are the People: Alien Suffrage in German and American Perspective,” Michigan Journal of International Law 13 (Winter 1992): 259-335; Thomas Hammar, “Dual Citizenship and Political Integration,” International Migration Review 19 (Fall 1985): 438-447; Yann Moulier-Boutang, “Resistance to the Political Representation of Alien Populations: The European Paradox,” International Migration Review 19 (Fall 1985): 485-492; Hayduk, Democracy for All, 193-194.

  120 Raskin, “Legal Aliens,” 1396, 1455, 1457, 1460-1469; Washington Post, 30 January 1992.

  121 San Francisco Examiner, 9 February 1996; Hayduk, Democracy for All, 109-19
3; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 110 Stat. 3009-3546. As Hayduk notes, both Cambridge and Amherst, Massachusetts, voted to enfranchise noncitizen residents, but the state legislature denied them permission to do so.

  122 Frances Fox Piven and Richard A. Cloward, Why Americans Don’t Vote (New York, 1988), 17-21; Steven J. Rosenstone and Raymond E. Wolfinger, “The Effect of Registration Laws on Voter Turnout,” American Political Science Review 72 (1978): 22-45.

  123 Rosenstone and Wolfinger, “Effect of Registration Laws,” 23-32; Beare v. Briscoe, 498 F. 2d 244 (5th Cir 1974); see also Mississippi State Chapter, Operation Push v. Mabus, 932 F. 2d 400 (1991); and Deborah S. James, “Note: Voter Registration: A Restriction on the Fundamental Right to Vote,” Yale Law Journal 96 (June 1987): 1615-1640.

  124 Piven and Cloward, Americans, 178-180. For a revealing example of state deliberations, see Ohio Constitutional Revision Commission Proceedings Research, 1970-1977, Research Study no. 24 (Columbus, OH, 1977), 2332-2351.

  125 Piven and Cloward, Americans, 181-208, 215; Rosenstone and Wolfinger, “Effect of Registration Laws,” 29-33; Wolfinger and Rosenstone, Who Votes?, 66; Congressional Quarterly Almanac 33 (1977): 779. Prodded by Senator Edward Kennedy, hearings were held on voter registration reform as early as 1971; Ohio Research, Study no. 24, 2333-2334, 2339-2343.

  126 Piven and Cloward, Americans, 181ff., 209-210, 216-247; regarding the bills introduced in Congress, see U.S. House Committee on House Administration, Subcommitee on Elections, Voter Registration: Hearings on H.R. 3023 and H.R. 3950, 100th Cong., 2d sess., 19 April, 10 May, and 27 May 1988, and 101st Cong., 1st sess., 21 March 1989.

  127 Piven and Cloward, Americans, 15-20; House, Subcommittee on Elections, Hearings, 10 May 1988, 189.

  128 House Committee on House Administration, Report 101-243 to Accompany H.R. 2190: The National Voter Registration Act of 1989, 101st Cong., 1st sess., 18 September 1989; Senate Committee on Rules and Administration, Equal Access to Voting Act of 1989, Hearing on S. 675, 101st Cong., 1st sess., 10 May 1989; New York Times, 13 May 1992. Democrats countered the Republican constitutional argument by pointing out that article 1, section 4 of the Constitution gave Congress the right to regulate “the times, places and manner of holding” federal elections.