Voting Rights in America: Voter enfranchisement and disenfranchisement in a liberal democracy
America’s latest attempt at wide-ranging electoral reform, in the form of the For the People Act of 2021, was passed by the US House of Representatives on 3 March 2021 by 220 votes to 210, only to encounter a roadblock later in the year. The bill could not be debated on the floor of the US Senate on 22 June, having failed to secure the 60 votes (three-fifths of all hundred senators) needed to break a Republican filibuster. The filibuster, or cloture, rule is a legislative procedure which allows senators to engage in extended debate, on any topic of their choice, with a view to blocking or delaying voting on a contentious bill, amendment, resolution, or other debatable issue. This is seen by filibuster supporters as a way of ensuring that the minority party is able to express its opposition when it comes to issues of particular concern. This legislative obstruction to the bill is a setback, likely only temporary, on the path to fairer elections in the most powerful democracy in the world.
Going back in time, the 13th, 14th and 15th Amendments to the US Constitution were ratified during the period of Reconstruction, following the American Civil War, and extending until 1877, by which time all former Confederate states had been reintegrated into the US. Slavery was abolished, citizenship extended to include all persons born or naturalised in the US, and the right to vote no longer restricted on grounds of race, colour or “previous condition of servitude”.
But just as America was beginning to democratise itself from 1877 onwards, new Jim Crow laws in the Southern states steadily dismantled any existing concessions to racial equality. A combination of arbitrary literacy and comprehension tests, property ownership and poll tax requirements to determine voter eligibility, and white-only primaries ensured that many African Americans were either disenfranchised or otherwise excluded from the electoral process, while so-called “grandfather clauses” protected the voting rights of low income and illiterate whites.
It took decades of activism, culminating in the Civil Rights Movement, to restore the vote to disenfranchised Americans. On 6 August 1965, President Johnson signed the landmark bipartisan Voting Rights Bill into law. Grassroots voter registration drives then helped realise the benefits of the new legislation. Five successive amendments, in 1970, 1975, 1982, 1992 and 2006, further expanded some or all of the Act’s special provisions.
Just as the voter base was beginning to expand, there came another phase of disenfranchisement. The Voting Rights Act was undermined by a US Supreme Court decision on 25 June 2013. Shelby County (Alabama) v Holder) determined that Section 4(b) of the Act was unconstitutional. “Coverage formulas” requiring federal clearance for changes to voting laws and elections were deemed to compromise the sovereignty of certain states and local governments and also felt to be unnecessary in the light of changed circumstances. Since then, many restrictive laws have reappeared across America. Most recently, according to the Brennan Center for Justice at New York University School of Law, 28 new laws have been enacted by 17 states between 1 January 21 June, making it harder for African Americans, the young, and poor people to cast their votes.
Matters have been complicated by Donald Trump’s allegations of massive electoral fraud during the 2020 presidential election. He has successfully sold his supporters a narrative of a landslide victory “stolen” from him by absentee ballots (mail-in voter fraud, duplicate and fictitious registrations), procedural irregularities, and complicit officials. His conspiratorial beliefs unleashed multiple unsuccessful lawsuits challenging election results across the country, as well as several “audits” of local ballot returns. Trump’s rhetoric has inevitably led to further attempts at “voter suppression”, to forestall any undesirable Democratic electoral victories in the future. This latest disenfranchisement of voters is being facilitated by the closure of polling places, the removal of drop boxes, restrictions upon early voting (normally up to fifteen days before election day), purges of voter rolls based upon lists of unreturned mail, stricter voter ID laws (requiring photo ID), and challenges to mail-in voting.
There is a need to standardise requirements for voter eligibility, to simplify and make the electoral process fairer and more transparent. For example, online voter registration seems preferable to filling in paper forms from which the information is then manually entered onto computers. Automatic voter registration when eligible citizens register with the Department of Motor Vehicles, social service providers, and public universities can further streamline the process of voter enrolment. Barriers to early and absentee voting, and same-day voter registration, coupled with restrictive ID requirements (photo ID versus non-photo ID) are, however, likely to deter African Americans and other minority racial groups from voting, as judging by past trends. In addition, previous felony convictions have disenfranchised an estimated 5.17 million Americans (as of 2020), and the voting rights of ex-felons vary considerably from state to state. Unfair political advantage can also be created by gerrymandering, by which the redrawing of electoral district boundaries can unduly favour particular political parties.
An election can only be considered truly representative when all, or almost all, eligible voters are registered, there is a high voter turnout, where electoral processes are fair and transparent, and no particular segment of the population is disadvantaged because of race, colour, or income. Whatever your particular viewpoint, there are many perceived shortcomings in the American electoral process as it stands, notwithstanding the complexities and logistical problems.
The US may be one of the world’s leading liberal democracies, but there is still a way to go before all inequities in the American voting process are finally rooted out. The ability of citizens of a democratic nation to freely participate in elections is an undisputed and inalienable right. But the political power of the vote has yet to be fairly distributed across America, ensuring that it is a truly racially inclusive democracy.
Ashis Banerjee