The states are not friends of voting rights in America

 Todays blog originally appeared in The Hill.

The story of voting rights in America yields two truths. First, even though since 1787 there has been an overall expansion of voting rights en route to universal adult franchise, it also has been a partisan battle often featuring efforts to disenfranchise. Second, left to their own devices, states are not the drivers of expanded voting rights. It has happened only when the national government has entered to guarantee, expand and protect rights. 

This is why Congress needs to enact federal legislation to federalize voting rights and enable national standards and enforcement.

America may be the world’s first experiment with popular government, but its record from the start in recognizing the right to vote is poor. At the Constitutional Convention of 1787, disputes over slavery, representation and the selection of the president left the issue of voting rights out of the Constitution and in the hands of the states to decide. In 1787, state laws limited voting rights to white, Protestant males with property who were at least age 21. 

A few states prior to the Civil War expanded voting rights on their own. They did so by dropping property qualifications in lieu of poll taxes to ensure that only those with an economic stake in the community could vote. Yet, serious expansion of voting rights did not come until after the Civil War. Republican Party support of the 1866 Civil Rights Act, the 14th Amendment in 1868, the Fifteenth Amendment in 1870, and the deployment of federal troops in the South during Reconstruction led to a dramatic increase in voting rights and representation for the freed males slaves.

But the disputed 1876 election — in which Democrat Samuel Tilden conceded the White House to Republican Rutherford B. Hayes on condition that federal troops be removed from the South — ended Reconstruction and support for voting rights for Black males. It ushered in a nearly century-long “first great disenfranchisement” in American history. This was the era of Jim Crow, in which mostly southern Democratic Party states employed a variety of mechanisms — grandfather laws, poll taxes, literacy tests and felon disenfranchisement laws — as tools to entrench single-party rule and prevent African Americans from voting. States also acted to prevent women, the poor, and young people from voting.

All the major initiatives to expand voting came as a result of federal legislation or action. The 17th Amendment (1913) gave individuals the right to vote for senators. The 19th (1920) and 26th (1971) Amendments banned denial of voting based on sex or age. The 23rd Amendment (1961) gave the District of Columbia electoral votes for president. The 24th Amendment (1964) banned poll taxes. Along with these amendments, the Supreme Court in United States v. Classic (1941) ruled that Article I, Section Two of the Constitution gave individuals a right to vote in federal elections. In Reynolds v. Sims (1864) and Harper v. Virginia Board of Elections (1966), the court located a right to vote in state and local elections in the First and 14th Amendments.  

Most importantly, the adoption of the Voting Rights Act of 1965 brought federal enforcement of voting rights, compelling states to preclear changes in election rules and desist from diluting voting rights. Even the Supreme Court’s cases on reapportionment and enforcement of the “one person, one vote” mandate were a major defense of voting rights. Then the 1993 Motor Voter Act expanded opportunities to register people to vote. All of this legislation and court action shared a common denominator — federal intervention into and protection of voting rights against states hostile toward expanding franchise.

Now we are witnessing efforts in the “second great disenfranchisement” in American history — this time led not by Democrats, but by Republicans. It began in the 1990s with claims that Motor Voter would lead to fraud. Then after the disputed 2000 presidential election in Florida, which resulted in the court’s ruling in Bush v. Gore, Republicans cried voter fraud. They demanded voter identification to stem nearly nonexistent fraud. It degenerated in the past election into the chant of a stolen election, and now there’s a new round of proposed 250 voting restrictions in 43 states, mostly Republican initiated. 

All of this is taking place after the Supreme Court, in 2013 in Shelby County v. Holder, effectively dismantled the Voting Rights Act and hobbled federal enforcement of franchise rights.

The “second great disenfranchisement” is a repeat of the first: Withdraw federal protection of voting rights and free states to restrict. This time it is not poll taxes or literacy tests, but restrictions on early voting, drop boxes and poll locations — different techniques but the same goals, same results.

States may be laboratories of democracy in many ways, but not where it matters most in protecting voting rights. Voting is the most fundamental of all rights, critical to protection of all others. The only way to defend universal franchise and, as former Supreme Court Justice Thurgood Marshall once said, give meaning to the first three words of the Constitution — “We, the People” — is for Congress to enact legislation reasserting a federal role in protecting voting rights.

Inconvenient Federalism: The Dangers of States’ Rights and Travel Bans

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

The Republican and conservative call for states rights and federalism is a creature of the 1970s rooted in two issues.  The first is a reaction to the expansionist federal government during the New Deal under Franklin Roosevelt and the Great Society under Lyndon Johnson.  Both were  liberal enterprises that significantly expanded the role the federal government in ways that conservatives and Republicans did not like.  The other call for federalism was in reaction to the liberal Supreme Court policies of the Warren Court which expanded constitutional protections to a host of issues, including criminal due process, civil rights, privacy, and eventually under Chief Justice Warren Burger, reproductive rights and abortion.

The call for states rights and federalism was an effort to limit the federal government’s power, at least its liberal bent.  Let states do it, so the claim is, and they will do it better.  They are the laboratories of democracy, capable of innovating and more in touch with their local needs and people.  States’ right in theory is about local democracy, ostensibly at least.  In reality, the belief among many Republicans back in the 1970s when the “New Federalism” was first championed, and even today, was that states rights would weaken the national government, undo the liberal agenda, and allow for conservative outcomes to prevail.

In many cases federalism did work.  A weakened national government meant states could again pass anti-abortion, anti-gay, and just about any other anti-something legislation that they wanted. Yet it was an inconvenient and inconsistent  federalism.   When Reagan appointed Antonin Scalia to the Supreme  Court and for the last 30 years when he and it became a reliable institution supporting conservative outcomes there was no complaint about the federal government.  The same was the case when Bill Clinton signed welfare reform, the Defense of Marriage Act, or when George Bush increased federal powers to wage the war on terrorism.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutional a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law.

But now there is yet another face to federalism that brings mixed blessing to conservatives and Republicans. Consider on the one hand decisions by the states or North Carolina and Mississippi to pass bathroom legislation restricting transgender individuals to use facilities that correspond to their gender birth.  Or Indiana’s recent decision to place new restrictions on abortions.  This is clearly what state righters had hoped for.  But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to tow the policy line.  Doubtful this is what states’ rights advocates envisioned.

But there is something dangerous with this new federalism–it invites retaliation or use for less than noble reasons, and thus is not good news for Democrats. At what point will North Carolina or Mississippi retaliate against Minnesota and issue its own travel bans?  Or what if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.  Freedom and equal opportunity means freedom equality of opportunity for everyone, regardless of where they live.  This is what E Pluribus Unum is supposed to stand for.

The new federalism movement is both a failure when one thinks of nationalism and building a UNITED States of America, but is also showing how the states’ rights movement has not lived up to what many conservatives and Republicans envisioned.