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.

The Politics of Constitutional Amendments: Lessons from Minnesota's History

All indications are there will be at least one if not multiple state constitutional amendments on the 2012 ballot for Minnesotans to consider. Possibilities include a ban on same-sex marriage, photo identification for voting, a requirement for a 60% legislative vote to raise taxes, and perhaps others.

Supporters of these proposals contend the public has a right to vote on them, critics respond no; asserting that resorting to amending the Minnesota Constitution is unprecedented and inappropriate. Who is right? There may be no definitive answer, yet state history reveals 150 plus years of amendments, yielding interesting conclusions about constitutional politics.

Since ratification of the Minnesota Constitution in 1858, there have been 211 constitutional amendments proposed to the voters, with 119 adopted. Until 1898, constitutional amendments required a majority of both houses in the legislature to propose them to the voters, with a simple majority of those voting on the amendments to approve them.

In 1898 the amending process was changed, thereafter requiring a qualified majority of all who voted in a specific election to vote in favor the amendment. Voting in the election but not voting on the amendment counted as a no vote. Amending the Constitution was made more difficult because critics claimed special interests and groups were using the process to further their politics.

Over time, interesting patterns have developed regarding when amendments have been offered and adopted.

Era	Dates	Proposed	Adopted	Percentage Adopted
Nineteenth Century	1858-1898	66	48	73%
Progressive Era	1900-1918	45	10	22%
1920s	1920-1928	15	7	47%
Depression and WW II	1930-1944	20	8	40%
Total	1958-2010	211	119	56%

During the 19th century, 73% of the 66 proposed amendments were adopted. After changes in the amendment process, the Progressive Era—a period supposedly notable for significant social and economic reform in the Minnesota and across the country, only 10 of 45 or 22% of the amendments were adopted. Many amendments were offered during this time but few were accepted by the voters. Conversely, since WWII, and especially since the Constitution was reorganized in 1974, nearly 70% of all proposed amendments were adopted.

Constitutional amendments come in bunches. Many times in Minnesota history three, four, or more amendments have been on the ballot at the same time. The record is 1914, 11 amendments proposed, one adopted. Because of frequent amending, no definitive pattern emerges regarding whether they encouraged turnout, but there is no doubt than in their day proposals to let women vote or authorize gambling drove excitement and turnout. Moreover, in years when more than one amendment appeared on the ballot, usually one dominated the public’s attention, sometimes damaging the prospects of the other amendments from passing.

Looking at the types of amendments proposed, they fall into four groups. There are structural amendments addressing the organization of government, such as the length of the legislative session, giving the governor the veto, or regulating the size of the judiciary. Financial amendments include authorizing the state to impose taxes, bond, give special bonuses to military veterans, or otherwise to spend money. Rights amendments deal with matters of individual rights, such as franchise and jury trials. Finally, regulatory amendments dealt with various aspects of regulating private corporations, such as the liability of its officers.

Of the 211 amendments proposed, they can be classified as follows:

Type	Proposed	Adopted	Adopted Percentage
Structure of government	97	51	53%
Finance (taxes, bonding)	82	50	61%
Individual rights	17	12	71%
Regulatory (corporations)	15	6	40%
Total	211	119	56%

What do we learn about the content of the amendments proposed and passed? Clearly many addressed contentious issues of the time. No, they did not address abortion or marriage and surprisingly none sought to ban alcohol sales. These are today’s hot button issues, or ones that we might consider contentious. But controversial is relative to the times, and amendments dealing with regulation of railroads during the robber baron era, or giving women or Blacks the right to vote were the headlines of the day. Resorting to constitutional amendments as a populist political strategy has been a part of Minnesota politics from the beginning.

But looking at the content of the amendments adopted, some interesting patterns emerge. Among the 12 adopted Amendments addressing individual rights, five of them expanded voting rights. In the entire history of the state only one constitutional amendment, in 1896, restricted voting rights. Here it limited the practice in place until then that allowed aliens or non-citizens to vote in Minnesota. This practice encouraged and welcomed Scandinavians to Minnesota.

Three other amendments also limited rights, addressing issues surrounding use of juries in civil and misdemeanors. The message is clear—amendments to the Constitution have generally expanded rights, especially voting, and not contracted them.

Second, among the 50 adopted amendments dealing with finance, 17 authorized new taxes, bonding authority, or spending, and only six restricted or made it more difficult for public spending. Of those six, four in the nineteenth century restricted the ability to use public money to help the railroads (again seeking to limit the power of the robber barons), one in the nineteenth century barred the spending of public money for religious schools (Minnesota’s Blaine Amendment, similar to those adopted in many other states about the same time), and then one amendment during the Depression prohibited the taxing of personal property and farm equipment. Minnesota’s history thus demonstrates more a pattern of enabling spending to build schools and undertake public projects than to restrict it.

Votes and not history will decide whether amendments on the ballot in 2012 will pass. Yet the current amendments directed toward restricting rights, voting, and public financing seem out of sync with Minnesota’s history. But for good or bad, resorting to the amendment process is a part of Minnesota history to address politically charged issues of the day.