Voting Rights

Author:Louis H. Pollak

Page 2804

"The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." So spoke Chief Justice EARL WARREN, on behalf of the Supreme Court, in REYNOLDS V. SIMS (1964).

The Chief Justice's words were in direct philosophic succession to principles of the primacy of representative political institutions announced by the FIRST CONTINENTAL CONGRESS 190 years before, in the Declaration and Resolves of October 14, 1774:

[T]he foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal policy, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed.

The failure of King George III, through his ministers, to recognize the urgency of the colonists' demand for true representative institutions was one of the chief causes of revolution set forth in the DECLARATION OF INDEPENDENCE : "He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions in the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise."

The severing of the ties with Britain required the establishment, at the state level and at the national level, of new and more representative institutions of government. American constitutional history is characterized in part by the continuing enlargement of the right to vote, the mechanism which, in the American political tradition, has become the sine qua non of a valid system of REPRESENTATION. An anomaly presents itself: The Constitution, as amended, addresses aspects of the right to vote with far greater frequency than any other topic. Nonetheless, it has never been the function of the Constitution affirmatively to define the universe of voters. The Constitution's function has been narrower?progressively to limit the permissible grounds of disenfranchisement.

Prior to the AMERICAN REVOLUTION, eligibility to vote was not uniform among the colonies, but the variations were relatively minor. Broadly speaking, voting for colonial (as distinct from township or borough) officials was reserved to adult (generally meaning twenty-one or older) "freeholders." In equating property ownership and suffrage, the colonies were following a familiar English model. But landowning was far more widely dispersed in the colonies than in the mother country, so the proportion of colonists eligible to vote was larger.

There were not more than a few black or women freeholders in any of the colonies, and pursuant either to convention or to formal legal specification those few did not vote. Religious restrictions were also commonplace but varied somewhat among the colonies and at different times. In general, the franchise was the prerogative of the propertied, Protestant, white male.

With the coming of independence, all of the newly sovereign states except Connecticut and Rhode Island adopted new charters of government?"constitutions." Impelled by the rhetoric of revolution and the eagerness of thousands of militiamen to participate in the processes of governance, the drafters of the new state constitutions relaxed but did not abandon the property and religious

Page 2805

qualifications for voting for state officials (and the correlative, and generally more stringent, qualifications for holding state office). As Max Farrand observed, Americans

might declare that "all men are created equal," and bills of rights might assert that government rested upon the consent of the governed; but these constitutions carefully provided that such consent should come from property owners, and, in many of the States, from religious believers and even followers of the Christian faith. "The man of small means might vote, but none save well-to-do Christians could legislate, and in many states none but a rich Christian could be a governor." In South Carolina, for example, a freehold of 10,000 currency was required of the Governor, Lieutenant Governor, and members of the council; 2,000 of the members of the Senate; and, while every elector was eligible to the House of Representatives, he had to acknowledge the being of a God and to believe in a future state of rewards and punishments, as well as to hold "a freehold at least of fifty acres of land, or a town lot."

Under the ARTICLES OF CONFEDERATION, the state delegates in Congress constituted the nation's government. The Articles limited the numbers of delegates (no fewer than two and no more than seven per state) but left each state legislature free to determine the qualifications of those selected and the mode of their annual selection. The Articles did not preclude popular election of delegates, but the word "appointed," in the phrase "appointed in such manner as the legislature of each State shall direct," suggests that it was not anticipated that legislatures would remit to their constituents the power to choose those who would speak and vote for the states in Congress.

At the CONSTITUTIONAL CONVENTION OF 1787, the Framers divided on how the lower house was to be selected. JAMES MADISON told his fellow delegates that he "considered an election of one branch at least of the legislature by the people immediately, as a clear principle of true government." Madison's view carried the day. But then the Convention faced the question whether the Constitution should set the qualifications of those who were to elect representatives. GOUVERNEUR MORRIS of Pennsylvania proposed that only freeholders should vote. Colonel GEORGE MASON of Virginia found this proposal regressive: "Eight of nine States have extended the right of suffrage beyond the freeholders. What will the people there say, if they should be disfranchised." OLIVER ELLSWORTH of Connecticut also challenged Morris's proposal: "How shall the freehold be defined? Ought not every man who pays a tax to vote for the representative who is to levy and dispose of his money?" Morris was unpersuaded: "He had long learned not to be the dupe of words.? Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them." But BENJAMIN FRANKLIN took decisive issue with his fellow Pennsylvanian: "It is of great consequence that we should not depress the virtue and public spirit of our common people; of which they displayed a great deal during the war, and which contributed principally to the favorable issue of it." Morris's proposal was decisively defeated. The Convention instead approved the provision that has endured ever since, under which eligibility to vote for representatives is keyed, in each state, to that state's rules of eligibility to vote for members of the most numerous house of the state legislature.

When it came to designing the method of selecting the President and vice-president, the Convention devised the indirect election system of the ELECTORAL COLLEGE. The expectation was that the electors?themselves chosen from among the leading citizens of their respective states?would, through disinterested deliberation, select as the nation's chief executive officials the two persons of highest civic virtue, wholly without regard for the vulgar demands of "politics." According to ALEXANDER HAMILTON in THE FEDERALIST #68, "[t]he mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents." But, measured against its intended purpose, no other structural aspect of the Constitution has wound up wider of the mark. The Framers of the Constitution wholly failed to anticipate the development of national political parties whose chief political goal would be the election of the party leader as President. That development has meant that since the fourth presidential election?that of 1800, in which THOMAS JEFFERSON defeated JOHN ADAMS?the electors in each state have themselves been selected as adherents of the political party prevailing in that state and thus have, with the rarest of exceptions, cast their electoral votes for the party's presidential and vice-presidential candidates. The system of electors remains to this day, but it has been entirely drained of its intended function.

Those who drafted the Constitution in 1787, and who saw it through ratification to the launching of the new ship of state in 1789, were America's aristocracy. The transformation of American politics from 1789 to the Civil War can be measured in the marked shift in class status of those who occupied the Presidency. The Presidents from GEORGE WASHINGTON to JOHN QUINCY ADAMS were all patricians. Most of the Presidents from ANDREW JACKSON to ABRAHAM LINCOLN were not. The growth of national parties, beginning with Jefferson and accelerating with Jackson, democratized politics by putting politicians in the business of seeking to enlarge their voting constituencies. Property

Page 2806

qualifications gave way, for the most part, to taxpayer qualifications. And, in many states, these in turn were soon largely abandoned.

The erosion of property tests for voting did not mean that anything approximating universal suffrage was at hand. As one political scientist has summarized the situation:

Apart from a few midwestern states, hungry for settlers, no one...

To continue reading