Voting under the Federal Constitution
Oxford Handbook of American Election Law (2023 Forthcoming)
28 Pages Posted: 19 Sep 2022 Last revised: 17 Jan 2023
Date Written: September 14, 2022
There is no explicit, affirmative right to vote in the federal Constitution. At the Founding, States had total discretion to choose their electorate. Although that electorate was the most democratic in history, the franchise was largely limited to property-owning White men. Over the course of two centuries, the United States democratized, albeit in fits and starts. The right to vote was often expanded in response to wartime service and mobilization.
A series of constitutional amendments prohibited discrimination in voting on account of race (Fifteenth), sex (Nineteenth), inability to pay a poll tax (Twenty-Fourth), and age (Twenty-Sixth). These amendments were worded as anti-discrimination provisions with nearly identical language. Although they vastly expanded who was eligible to vote, these constitutional amendments’ negative framing permits States to disenfranchise voters through facially neutral requirements, such as felon disenfranchisement laws.
Starting in the 1960s, the Supreme Court relied on the Equal Protection Clause—rather than the voting rights amendments themselves—to protect the “fundamental” right to vote, applying strict scrutiny to voting qualifications. This line of cases comes closest to recognizing an affirmative right to vote that receives protection even absent an invidious facial classification. These decisions, combined with the Voting Rights Act of 1965 (VRA) and the civil rights movement, helped eradicate Jim Crow.
This chapter charts how the United States democratized, and its focus is on voting qualifications under the federal Constitution. As this chapter demonstrates, democratization has been accomplished through federal constitutional amendments, state-law changes, judicial decisions, and popular support during or shortly after wartime.
Keywords: Right to Vote; Fourteenth Amendment; Fifteenth Amendment; Nineteenth Amendment; Twenty-Fourth Amendment; Twenty-Sixth Amendment; Supreme Court
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