A Brief Legal History: Our Right to Vote
Voting in the United States at its formation looked very different than our right to vote today. Through the 18th century, the original Thirteen Colonies restricted the right to vote primarily to white males who owned land or a notable amount of personal property. In North Carolina, a white male was required to own at least fifty acres of land.
In 1789, the United States Constitution came into force but was notably silent on suffrage, allowing each state to determine its own voting parameters. Many northern states permitted free blacks to vote so long as other requirements were met, such as property ownership. As an outlier, by 1797, New Jersey permitted women to vote (so long as they met the property requirement) – more than a century before the passage of the 19th amendment to the United States Constitution. Due to applicable family laws of the time, married women generally had no property rights as her property went to her husband upon marriage. Therefore, only single or widowed women could meet the property requirement to vote.
Around the start of the 19th century, states began to reassess property requirements of the voting population and rather disenfranchised women and non-white men regardless of property ownership. Even New Jersey stripped women of their right to vote in 1807. In respective states, Free blacks lost their right to vote by 1838. Beginning just after the American Civil War (1861 – 1865), amendments to the United States Constitution were ratified to extend the right to vote and voter protections to formerly disenfranchised groups of citizens:
– Fifteenth Amendment – “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.” – Ratified February 3, 1870.
– Nineteenth Amendment – “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 sex.” – Ratified August 18, 1920.
– Twenty-fourth Amendment – “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” – Ratified January 23, 1964.
– Twenty-sixth Amendment – “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” – Ratified July 1, 1971.
United States Supreme Court caselaw and other laws passed by Congress, such as the Uniformed and Overseas Citizens Absentee Voting Act of 1986, continue to expand voting protections for all citizens of the United States in federal, state, and local elections.
Noting the tumultuous history surrounding our right to vote and the expanding voter protections, an arguably more interesting phenomena is the decrease of voter turnout. In 1872, the first general election after the ratification of the Fifteenth Amendment, voter turnout was approximately 71.3% of the voting population. In the more recent general election of 2016, voter turnout was approximately 55.5% of the voting population.
Chief Justice Earl Warren – “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. […] Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 555-562 (1964).
Justice Hugo Black – “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
Justice Ruth Bader Ginsburg – “[The] Constitution begins with the words, “We the people of the United States in order to form a more perfect union.” Think about how things were in 1787. Who were ‘We the people’? Certainly not people who were held in human bondage because the original Constitution preserves slavery. Certainly not women whatever their color and not even men who own no property. It was a rather elite group, ‘We the people,’ but I think the genius of our Constitution is what Justice Thurgood Marshall said. He said he doesn’t celebrate the original Constitution but he does celebrate what the Constitution has become, now well over two centuries. That is the concept of “We the people” has become ever more inclusive. People who were left out at the beginning – slaves, women, men without property, native Americans – were not part of ‘We the people.’ Now all the once left out people are part of our political constituency. We are certainly a more perfect union as a result of that.” – Lecture in Little Rock, Arkansas (September 3, 2019).
Will you be exercising your right to vote?
Written by: Theresa E. Viera
