The Right to Vote

by Alexander Keyssar

  98 Historical writing about the origins and development of these laws is scarce, and the author regrets that the subject received almost no attention in the first edition of this book. The best historical analyses can be found in Kay Schriner and Lisa Ochs, “Creating the Disabled Citizen: How Massachusetts Disenfranchised People Under Guardianship,” Ohio State Law Journal 62 (2002): 481-533; Schriner and Ochs, “‘No Right,’” 2-5; and Schriner, Ochs and Shields, “Democratic Dilemmas,” 437-445.

  99 Schriner, Ochs, and Shields, “Democratic Dilemmas,” 439, 456-472; Schriner and Ochs, “‘No Right,’” 1, 3; Schriner and Ochs, “Creating the Disabled Citizen,” 482-485; the only states lacking such provisions were Colorado, Indiana, Kansas, Michigan, New Hampshire, and Pennsylvania. Schriner, Ochs, and Shields estimated in 1997 that the guardianship laws alone could disfranchise between 500,000 and 1,250,000 persons. Kay Schriner, Lisa Ochs, and Todd Shields, “The Last Suffrage Movement: Voting Rights for Persons with Cognitive and Emotional Disabilities,” Publius 27 (Summer 1997): 75-76.

  100 In 1979, for example, a note in the Yale Law Journal argued that the premise of these laws had too long gone “unquestioned” and that “mental disability restrictions violate the equal protection clause.” “Mental Disability and the Right to Vote,” Yale Law Journal, 88 ( July 1979): 1644-1664. Regarding dementia, see Karlawish, et al., “Identifying the Barriers,” 67.

  101 Sally B. Hurme and Paul S. Appelbaum, “Defining and Assessing Capacity to Vote: The Effect of Mental Impairment on the Rights of Voters,” McGeorge Law Review 38 (2007): 963-965; Schriner, Ochs, and Shields, “Last Suffrage Movement,” 81-95; Schriner, Ochs, and Shields, “Democratic Dilemmas,” 451. Why states were resistant to changing their constitutional or statutory provisions is unclear: Appelbaum speculates that in earlier periods, when state hospitals housed thousands of patients, local communities may have opposed any extension of voting rights. Paul S. Appelbaum, “‘I Vote. I Count’: Mental Disability and the Right to Vote,” Psychiatric Services 51 (July 2000): 849-850.

  102 Hurme and Appelbaum, “Defining and Assessing Capacity to Vote,” 931-950; Kingshuk K. Roy, “Sleeping Watchdogs of Personal Liberty: State Laws Disenfranchising the Elderly,” Elder Law Journal 11 (2003): 112-115. Even before the 1990s, one analyst noted that constitutional provisions, mental health laws, and election codes were often inconsistent with one another and that presumptions of “blanket incapacity” had been widely rejected. “Mental Disability and the Right to Vote,” 1645, 1657, 1661. The complexity of the relationship between guardianship and the right to vote was illustrated in the case of Missouri Protection and Advocacy, Inc. v. Carnahan. In August 2007, a federal appeals court panel ruled that Missouri’s constitutional disfranchisement of persons under guardianship did not violate the federal Constitution because Missouri law permitted probate courts to preserve the voting rights of individuals who were placed under guardianship. Missouri Protection and Advocacy Services v. Carnahan, 06-3014, (8th Cir 2007). See also Bazelon Center for Mental Health Law, “Appeals Court Favors Individual Determination of Voting Rights for Disenfranchised Citizens with Mental Disabilities,” 23 August 2007, http://www.bazelon.org/newsroom/2007/8thCircuit_Voting082307.htm; St. Louis Post-Dispatch, 26 August 2007.

  103 Paul S. Appelbaum, Richard J. Bonnie, and Jason H. Karlawish, “The Capacity to Vote of Persons with Alzheimer’s Disease,” American Journal of Psychiatry 162 (November 2005): 2094-2100; Jason H. Karlawish, Richard J. Bonnie, Paul S. Appelbaum, et al., “Addressing the Ethical, Legal, and Social Issues Raised by Voting by Persons with Dementia,” Journal of the American Medical Association 292 (15 September 2004): 1345-1350; Doe v. Rowe, No. 00-CV-206-B-S, 2001 US Dist LEXIS 11963, 156 F Supp 2d 35 (D Me 2001).

  104 Karlawish, Bonnie, Appelbaum, et al., “Addressing the Ethical, Legal, and Social Issues,” 1346-1347; Hurme and Applebaum, “Defining and Assessing Capacity to Vote,” 960-974; Appelbaum, Bonnie, and Karlawish, “The Capacity to Vote,” 2094-2100; Roy, “Sleeping Watchdogs,” 137; New York Times, 19 June 2007. The American Bar Association’s resolution (passed in August 2007) urged governments at all levels to amend laws that categorically disfranchised people under guardianship. ABA Commission on Law and Aging, “Rights and Cognitive Impairment Policy,” American Bar Association (approved by the ABA House of Delegates, 13 August 2007), 1, www.abanet.org/aging; New York Times, 19 June 2007.

  105 The papers, proceedings, and recommendations of this symposium are all contained in the McGeorge Law Review 38 (2007); the quotation is from p. 844. See also ABA, “Rights and Cognitive Impairment Policy,” 1-17; testimony of Markowitz; statement of Sen. Kohl; Herb Kohl, Dianne Feinstein, and Ken Salazar to Rosemary Rodriguez and Caroline Hunter, U.S. EAC, 5 February 2008; U.S. Government Accountability Office (GAO) Study, “Voting Access for Voters with Disabilities and the Elderly—Election 2008,” 7 May 2008, http://www.abanet.org/aging/voting/pdfs/gao_abstract.pdf; Susan Q. Stranahan, “Mobile Polling,” AARP Bulletin, 14 July 2008. One study of residents of long-term care facilities found that the staff of such facilities commonly decided whether or not a person would vote and that the methods they utilized “likely” disfranchised some residents who were capable of voting. Testimony of Jason Karlawish, Committee on Aging, 31 January 2008; New York Times, 19 June 2007.

  106 Schriner, Ochs, and Shields, “The Last Suffrage Movement”; for a comparative and more theoretical approach to these issues, see Ludvig Beckman, “Political Equality and the Disenfranchisement of People with Intellectual Impairments,” Social Policy and Society, 6 (January 2007): 13-23. Hurme and Appelbaum, “Defining and Assessing Capacity to Vote,” 965, 974.

  107 House Joint Resolution 28, 107th Cong., 1st sess. The text of the amendment also included other provisions that varied over the years (and were understood to be negotiable): these addressed issues such as the establishment of national performance standards for the conduct of elections, election day registration, and the allocation of electoral votes in presidential elections.

  108 Jesse L. Jackson, Jr., “Fighting for a Right to Vote Constitutional Amendment,” paper presented at the Center for Voting and Democracy’s “Claim Democracy” Conference, 22 November 2003; statement of Congressman Jackson, Congressional Record 150 (15 September 2004), H7224-H7232; Jesse Jackson, Jr., “The Right to Vote,” Nation, 19 January 2006, 11.

  109 “Support Soars for New Voting Rights Amendment,” US Fed News, 3 March 2005; Michael C. Dorf, “We Need a Constitutional Right to Vote in Presidential Elections,” FindLaw’s Legal Commentary, 13 December 2000, http://writ.news.findlaw.com/dorf/20001213.html; Jamin Raskin, “A Right to Vote,” The American Prospect, 27 August 2001, 10; Alexander Keyssar, “Shoring Up the Right to Vote for President: A Modest Proposal,” Political Science Quarterly, 118 (Summer, 2003): 181-191; David Broder, “Endangered Suffrage,” Washington Post, 17 September 2003. The conference was the “Claim Democracy” Conference, coordinated by the Center for Voting and Democracy (later re-named FairVote), November 2003.

  110 Raskin, “Right to Vote,” entire; Garrett Epps, “The Voter ID Fraud,” 13-15; Jamin B. Raskin, Overruling Democracy: The Supreme Court vs. The American People (New York, 2003), 43-45.

  111 Much of the information in this paragraph is drawn from numerous personal communications between the author and Congressman Jackson (and members of his staff, notably Frank Watkins), between 2003 and 2008. See also Alex Keyssar, “Mainstream News Media and the Right to Vote,” The Huffington Post, 22 June 2005, http://www.huffingtonpost.com/alex-keyssar/mainstream-news-media-and_b_3026.html; Advancement Project, “In Pursuit of an Affirmative Right to Vote,” Strategic Report, July 2008, 8, http://www.advancementproject.org/pdfs/RTV-Report-Final-Printed-Version.pdf. In 2005-2006, the Advancement Project (pp. 20-21) convened multiple focus groups on this issue; most participants were surprised to learn that there was no right to vote in the constitution and they favored amending the constitution to include such a right.

  112 On July 30
, 2008, the Advancement Project, a civil rights and social justice advocacy organization founded in 1998, announced that, after two years of preliminary study, it was launching a major initiative to promote enshrining an affirmative right to vote in the constitution. Advancement Project, “In Pursuit,” entire.

  113 The National Popular Vote initiative called for states to join an interstate compact agreeing to cast their electoral votes for the candidate who received a majority of the national popular vote. (For details, see www.nationalpopularvote.com.) By the fall of 2008, seven state legislatures had endorsed the plan, although the governors of three of those states had vetoed the legislation. New York Times, 20 November 2008. Advocates of a constitutional amendment to guarantee the right to vote found encouragement in the fact that Congressman Jesse Jackson, Jr., had been a co-chair of the Obama campaign.

  114 A universal registration system would make the government (state or federal) take responsibility for insuring that all eligible voters were automatically registered. See New York Times, 6 November 2008; Los Angeles Times, 10 November 2008; Washington Post, 9 November 2008; USA Today, 7 November 2008; Wendy Weiser, Michael Waldman, and Renee Paradis, “Universal Voter Registration,” The Brennan Center, 31 October 2008.

  CONCLUSION

  1 Göran Therborn, “The Rule of Capital and the Rise of Democracy,” New Left Review 103 (May-June 1977): 12-19; Martin Pugh, Electoral Reform in Peace and War, 1906-1918 (London, 1978), 5, 50-51; Neal Blewett, “The Franchise in the United Kingdom, 1885-1918,” Past and Present 32 (December 1965): 27-56; Charles Seymour and Donald P. Frary, How the World Votes, vol. 1 (Springfield, MA, 1918), 13-14, 144, 149, 150, 174-175, 192, 195; and ibid., vol. 2, 69, 85-86, 88-89; Herbert Tingsten, Political Behavior: Studies in Election Statistics (Stockholm, 1937), 10-21; Ko-Chih R. Tung, “Voting Rights for Alien Residents—Who Wants It?” International Migration Review 19 (Fall 1985): 451-454; Gail G. Campbell, “The Most Restrictive Franchise in British North America? A Case Study,” Canadian Historical Review 71 (June 1990): 159-188; Nicolas M. Somma, “Elections and the Origins of Democracy in Nineteenth-Century Uruguay,” paper presented at the University of Notre Dame, September 2008, 101-103; Hilda Sabato, “On Political Citizenship in Nineteenth-Century Latin America,” American Historical Review 106 (October 2001), 1298-1302; Eduardo Posada-Carbó, “Democracy,” in Jay Kinsbruner, ed., Encyclopedia of Latin American History and Culture, 2d edition (New York, 2008), 772-775, 778-780; Cf. Eduardo Posada-Carbó, Elections Before Democracy: The History of Elections in Europe and Latin America (London, 1996); and Hilda Sabato, “Citizenship, Political Participation and the Formation of the Public Sphere in Buenos Aires 1850s-1880s,” Past and Present 136 (August 1992): 139-163. The literature on American exceptionalism is vast, beginning, of course, with de Tocqueville. For recent examples, see Seymour Martin Lipset, American Exceptionalism: A Double-edged Sword Revisited (New York, 1996); Peter H. Schuck and James Q. Wilson, eds., Understanding America: the Anatomy of an Exceptional Nation (New York, 2008); Godfrey Hodgson, The Myth of American Exceptionalism (New Haven, CT, 2009).

  2 Therborn, “Rule of Capital,” 12-19, 21-24; Pugh, Electoral Reform, 17, 29, 33, 44, 50-51, 136-137, 144-145, 153-154; Seymour and Frary, How the World Votes, vol. 1, 312-313, vol. 2, 91; Stein Rokkan, Angus Campbell, Per Trosvik, and Henry Valen, Citizens, Elections, Parties: Approaches to the Comparative Study of the Processes of Development (New York, 1970), 31, 86-87; Raymond Huard, Le Suffrage Universel en France, 1848-1946 (Paris, 1991), 9-14, 19-34, 72, 117, 138, 148-149, 355-356, 403-405, 409; Pierre Rosanvallon, Le Sacre du Citoyen: Histoire du Suffrage Universel en France (Paris, 1992), 11-12, 445-461; Gaetano Salvemini, The Origins of Fascism in Italy (New York, 1973), 60-62, 232-234; Sabato, “Political Citizenship,” 1298-1302; J. Samuel Valenzuela, “Building Aspects of Democracy Before Democracy: Electoral Practices in Nineteenth-Century Chile,” Working Paper 223 (April 1996): 1-4.

  3 Elizabeth Wiskemann, Europe of the Dictators, 1919-1945 (New York, 1966), 10, 15, 19, 37; Sabato, “Political Citizenship,” 1298-1302; Huard, Suffrage Universel, 19-34, 138-149, 355-356; Posada-Carbó, “Democracy,” 772-780; see also José Murilo de Carvalho, “Electoral Participation in Nineteenth-Century Brazil: One Step Forward, Two Steps Backward,” paper presented at the University of Notre Dame, September 2008. In recent years, some Latin American historians (including Posada-Carbó and Valenzuela, cited above) have argued that election practices were not always identical to the formalities of the law. A set of essays exploring this issue, emerging from a conference held at Notre Dame University in September 2008 should be published in 2009 or 2010.

  4 Raymond E. Wolfinger and Steven J. Rosenstone, Who Votes? (New Haven, CT, 1980), 1; New York Times, 13 November 1988, 7 November and 10 November 1996; Frances F. Piven and Richard A. Cloward, Why Americans Don’t Vote (New York, 1988), 4-19; Michael P. McDonald and Samuel Popkin, “The Myth of the Vanishing Voter,” American Political Science Review 95 (December 2001): 963-974. As McDonald and Popkin point out, turnout can be (and is) calculated in different ways, with slightly varying results. McDonald maintains a website with turnout data at the United States Election Project, George Mason University. See also the data and publications of the Committee for the Study of the American Electorate. Cf. also Walter Dean Burnham, “Triumphs and Travails in the Study of American Voting Participation Rates, 1788-2006,” Journal of the Historical Society VII (December 2007): 505-604.

  5 Rokkan et al., Citizens, 38-39; Wolfinger and Rosenstone, Who Votes?, 13, 17, 18, 22, 24-34, 90; New York Times, 10 November 1994, 11 June 1995, and 11 August 1996; see also the reports of the Committee for the Study of the American Electorate as well as the sources cited in the following note.

  6 For a sample of the debates regarding the sources of low turnout, see various works by Walter Dean Burnham, including Critical Elections and the Mainsprings of American Politics (New York, 1970), and “The Appearance and Disappearance of the American Voter,” in The Disappearance of the American Voter (Washington, DC, 1979); Piven and Cloward, Why Americans Don’t Vote, 17-25; Ruy Teixeira, The Disappearing American Voter (Washington, DC, 1992); McDonald and Popkin, “Myth,” 963-974.

  7 Robert B. Reich, Locked in the Cabinet (New York, 1997), 330. Reich’s memoir is dotted with anecdotal material regarding the political strategies of the Clinton administration and the subordination of social policy to the preferences of Wall Street. Regarding historical turnout figures, see W.D. Burnham, “Triumphs and Travails,” 505-604 and John P. McIver, ed., “Voter Turnout, Series Eb62-122,” in Susan B. Carter et al., ed., Historical Statistics of the United States (Millennial Edition Online, 2006).

  8 Sidney Verba, Kay L. Schlozman, and Henry E. Brady, Voice and Equality: Civic Voluntarism in American Politics (Cambridge, MA, 1995), 1-13, 23-24, 511-533.

  9 Cf. William Greider, Secrets of the Temple (New York, 1987); Gabriel Kolko, The Triumph of Conservatism: A Re-interpretation of American History, 1900-1916 (New York, 1963); James Livingston, Origins of the Federal Reserve System: Money, Class, and Corporate Capitalism, 1890-1913 (Ithaca, NY, 1986).

  10 Regarding Obama’s fundraising, see the report issued by the Campaign Finance Institute, 24 November 2008.

  11 The well-known and somewhat static notions put forward by Joseph Schumpeter and Robert Dahl are placed in historical context in Morton J. Horwitz, The Transformation of American Law, 1870-1960 (New York, 1992), 255-258.

  12 Cf. E.E. Schattschneider, The Semisovereign People: A Realist’s View of Democracy in America (Hinsdale, IL, 1960), 104-105.

  13 Cf. Verba, Schlozman, and Brady, Voice and Equality, 10.

  INDEX

  Absentee voting

  at end of twentieth century,

  Election

  Election

  Election

  felons

  from Civil War to World War I

  Soldier Voting Act

  Acheson, Dean

  ACORN (Association of Community Organizations for R
eform Now)

  Adams, Abigail

  Adams, Charles Francis, Jr.

  Adams, Henry

  Adams, John

  and drafting of Massachusetts constitution

  and Massachusetts constitutional convention of

  and “right” to vote

  Adams, Mary Jo

  Addams, Jane

  Address on the Right of Free Suffrage (Luther)

  Advancement project

  Affirmative action

  African Americans

  activism in 1920-1960 period

  and boundaries of Tuskegee, Alabama

  and end of white primaries

  and Rhode Island suffrage rebellion

  and right to vote before

  and slaves as American peasantry

  and the South in 1950s and 1960s

  and the vote in Civil War and Reconstruction

  and vote dilution and districting issues

  and World War II

  coalition and influence districts

  disfranchisement of, in South, after Civil War

  Fourteenth Amendment, effect of passage on

  military service in Civil War

  violence against during Reconstruction and after in South

  voting strength in the North

  voting rights of, 1960-2008 See also Race

  Age. See Voting age

  Aging, voting rights and

  Alabama

  Albuquerque, New Mexico

  Aliens

  and voting 1790-1850

  bracero program

  enfranchisement of declarant

  in 1990s

  termination of suffrage for in late nineteenth and early twentieth centuries

  suffrage as means of attracting

  Allen, Ethan