The Voting Rights Paradox: Ideology and Incompleteness of American Democratic Practice

• Publication year: 2021

The Voting Rights Paradox: Ideology and Incompleteness of American Democratic Practice

Atiba R. Ellis
Marquette University Law School

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THE VOTING RIGHTS PARADOX: IDEOLOGY AND INCOMPLETENESS OF AMERICAN DEMOCRATIC PRACTICE

Atiba R. Ellis^*

This Essay describes the "voting rights paradox"—the fact that despite America's professed commitment to universal enfranchisement, voting rights legislation throughout U.S. history has arisen in some states to serve antidemocratic, exclusionary ends. This Essay argues that this contradiction comes into focus when the right to vote is understood as having as an ideological driving force based on worthiness for admission to the franchise. This ideology of worthiness persists because the right to vote is dependent on political decisions left to the political branches and the majority's willingness to allow propaganda to influence the scope of the franchise.

Ultimately, this Essay argues that the voting rights paradox is effectively the "invisible hand" influencing the American law of democracy. The only way out of the paradox is to reorient voting rights towards a communitarian conception that fosters an authentic understanding of a universalist right to vote. This must be expressed by (and coupled with) fundamental, structural transformations in the mechanisms for allowing citizens to exercise their voting rights.

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Table of Contents

I. Introduction..................................................................1555

II. A Political Question: Shelby County v. Holder and the Dilemma of Voting Rights..................................1557

III. Worthiness and the Franchise................................1564

IV. Race as Ideology as Measuring Device for the Worthiness of the Franchise...................................1568

V. Political Problems and Structural Solutions......1576

VI. Conclusion..................................................................1583

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I. Introduction

A central paradox has plagued and continues to plague the American right to vote: the American republic has always conditioned participation in the democratic process on an antidemocratic ideology of worthiness needed to exercise the rights of citizenship. This reality has shaped debates around the right to vote in the past and in the present and has made it more difficult for the law to embrace the rhetoric of a universal right to vote—that is, a right for all citizens to participate freely and fairly.

This is the defining dilemma of voting rights in American history. Indeed, the histories surrounding voting rights admit to the progress that was required to gain a more expansive right to vote for all American citizens, yet at the same time recognize that these rights are inherently and constantly contested.¹ The continued contest around voting rights is ultimately attributable to this paradox.

This paradox—and the underlying constitutional flaws that allow it to exist—is the subject of this Essay. My claim is that, despite the significant strides towards a universal right to vote, this paradox—created by the interrelationship of deferential and malleable notions of the right to vote, coupled with the ability to condition the franchise on tests intended to allow targeted, exclusionary discrimination—exists and continues to define voting rights battles today. Limits on the franchise will persist until an authentically universalist view of the right to vote prevails in American election law. Wholesale structural change is the only way to break out of this paradox.

Our understanding of the possibilities for expansive voting rights must necessarily be read through this voting rights paradox. This inherently political force—the ability to condition the franchise on the ideological measure I am calling "worthiness"—shapes every conversation about the nature of voting rights. Throughout American history, efforts at creating a genuine, universalist right to

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vote have been consistently stymied by this worthiness measure. Indeed, an individual's ability to vote has consistently been determined by whether they meet some ideologically driven criteria, whether it be white supremacy, patriarchy, class dominance, nativism, or some other hierarchy. The particular ideologies (and their respective public acceptability) have evolved over time, and, importantly, the rise of these ideologies often intersects with times when the franchise has expanded in response to modern norms of equality and universal participation. The evolution of exclusionary rhetoric has obscured voter suppression rationales and thus has insulated exclusionary actions from significant scrutiny.²

This problem has manifested throughout American history. The structures of the original U.S. Constitution and state constitutions codified the relationship between worthiness and the conditional right to vote; these constitutions either explicitly or implicitly denied the right to vote based on identity well into the twentieth century.³ The paradox affects the framing of the constitutional amendments and statutory law that sought to expand the franchise, which were not given complete effect, and in some ways, were never given complete effect.⁴ And it persists in the creation and interpretation of the laws at all levels through the lens of partisan epistemology—the idea that different political parties have different ecospheres of knowledge and opinions based on that knowledge⁵ and "outcome determinative" election law design.⁶ This era of partisan epistemology, and the fundamental divide it creates regarding the validity of voter fraud claims, structures our current era of vote suppression. The premise of all forms of voter

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suppression is the commitment to ideologically driven standards of worthiness for admission to the franchise and the majority's willingness to allow propaganda to influence decisions concerning who is worthy to participate in the franchise.

This Essay will discuss the paradox of "worthiness" as a standard for democracy and expose it as a fundamental problem for American democracy. The Essay will discuss how this phenomenon has evolved and continues to perpetuate voter suppression by reflecting upon the less-than-complete progress of voting rights during the twentieth and twenty-first centuries. In doing so, it will elucidate the problems of antidemocratic constitutional design, the predominance of so-called "identity politics" in shaping voting rights, and the sway that ideology (notably, "partisan epistemology") has on our modern debates.

In Part II, this Essay uses the seminal case of Shelby County v. Holder⁷ to focus on the political theme at the heart of this thesis—i.e., the fact that the American democratic structure allows voting rights to be treated as a political question. Then, in Part III, this Essay provides an account of how "worthiness" as an ideological commitment delegates to political actors (who are motivated by the desire to condition the franchise on meeting a measure of worthiness) the power to determine who holds the franchise in democracy. Part IV further explores this paradox by reflecting on the history of racial voter suppression in the United States. Then, Part V argues that because the paradox is an intrinsic part of American democracy, a reconsideration of the first premise of our democracy to insulate from this paradox is necessary to achieve a truly universal right to vote. Part VI concludes.

II. A Political Question: Shelby County v. Holder and the Dilemma of Voting Rights

The debate over voting rights is intrinsically linked to the power that the body politic has to define itself. Thus, questions of the legitimacy of an individual's participation in elections are intrinsically tied to the political legitimacy of the decisions made by the body politic to determine who gets to participate in the

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franchise.⁸ This, in itself, is the paradox of American democracy.⁹ Of course, the consequence of this paradox is that the conversation over who is—and who is not—a legitimate participant in the franchise is left to the majority itself. And those questions, in the American structure, are then delegated to the representatives of the people, as well as to the courts.¹⁰ Thus, an expression of the voting rights paradox is the dilemma created when the majoritarian and counter-majoritarian forces of American government conflict over the scope of voting rights based on their competing normative and political commitments.

This dilemma was made explicit in a recent case shaping the scope of modern American voting rights, Shelby County v. Holder.¹¹ This decision reveals aspects of the voting rights paradox: a commitment to conditioning the franchise based upon arguably ideological measures; the effect of deference to state law, rather

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than to a national standard; and the exclusionary effects of doing so.¹²

In Shelby County, Chief Justice John Roberts, writing for a five-justice majority, struck down as unconstitutional Section 4(b) of the Voting Rights Act of 1965.¹³ Section 4(b) provided the formula for determining which states had a history of racial discrimination in voting and lagging metrics concerning the participation of minority voters sufficient to require that the jurisdiction's voting laws be subject to federal government oversight.¹⁴ Section 5 of the VRA, in contrast, is the supervision provision.¹⁵ This Section of the VRA required states which fit the criteria under Section 4(b) to have all of their election laws "precleared" (that is, approved by the federal government before they are enforced within that state).¹⁶ The standard for receiving preclearance was whether the election provision was "retrogressive" regarding minority voting rights—i.e., whether the provision made racial minorities worse off in exercising the right to vote.¹⁷ This effectively meant that states subject to preclearance had to cooperate with the federal government...