Voters and Nonvoters
by Allan Lichtman
Americans have fought and died for the right to vote. Yet the world’s oldest continuously operating democracy guarantees no one, not even its citizens, the right to elect its leaders. For most of U.S. history, suffrage has been a privilege restricted by wealth, sex, race, residence, literacy, criminal conviction, and citizenship. Economic qualifications were finally eliminated in the nineteenth century, but the ideal of a white man’s republic persisted long after that. Today, voter identification laws, registration requirements, felon disenfranchisement, and voter purges deny many millions of American citizens the opportunity to express their views at the ballot box. In The Embattled Vote: From the Founding to the Present , Allan Lichtman gives us the deep history behind today’s headlines and shows that calls of voter fraud, political gerrymandering and outrageous attempts at voter suppression are nothing new. The players and the tactics have changed — we don’t outright ban people from voting anymore — but the battle and the stakes remain just as high.
On February 18, 1965, advocates for the voting rights of disenfranchised African Americans organized a rare nighttime march in the small town of Marion, Alabama, part of the state’s “black belt,” to protest the jailing of James Orange. Prosecutors had charged Orange with contributing to the delinquency of minors after he en- listed students in voter registration drives. Alabama state troopers responded to the protest by beating peaceful demonstrators with billy clubs, sending terrified marchers fleeing into the night. Some sought refuge from police violence in a nearby restaurant, Mack’s Café. State troopers followed them into the establishment, however, and one of those troopers, James Bonard Fowler, fatally shot an un- armed twenty-six-year-old black voting rights worker, Jimmie Lee Jackson. Insisting that Jackson had reached for his gun, Fowler claimed self-defense. Eyewitnesses told a different story: they said that Jackson was trying to protect his mother from police violence and that Fowler shot him deliberately, without provocation.
While Jackson languished in a hospital for eight days before dying from his wound, Alabama officials issued a warrant for his arrest for the assault of a police officer. They did not arrest, indict, or discipline Fowler, or even release his name to the public. Fowler remained on the state police force, and a year later he shot and killed another unarmed black man, Nathan Johnson, Jr., during an altercation at the Alabaster city jail. State police officials were quick to purge both killings from Fowler’s personnel file but fired him in 1968 for assaulting his white police supervisor. In 2007, as part of a federal- state effort to reopen cold cases from the civil rights era, Alabama prosecutors indicted the seventy-three-year-old Fowler for murder. Two weeks before trial was set to begin in 2010, Fowler pleaded guilty to manslaughter and served five months of a six-month sentence. Fowler died in 2015, fifty years after killing Jimmie Lee Jackson.
Americans were dying for the vote more than 175 years after their nation’s founding because the framers made a consequential mistake when they drafted the Constitution and the Bill of Rights, the Constitution’s first ten amendments. They failed to enshrine in these pivotal documents of our democracy the right to vote, not just for men or even only white men but for any American. Among many enumerated rights that the government cannot abridge, the right to vote remained conspicuously absent and remains so to this day. All subsequent amendments protecting the voting rights of racial minorities, women, and young people — the Fifteenth Amendment on race, the Nineteenth Amendment on sex, and the Twenty-Sixth Amendment on age — are framed negatively, stipulating not what the states must do to ensure people’s voting rights in America’s democratic republic but what they cannot do.
Jimmie Lee Jackson died, one could plausibly argue, because the political leaders who drafted these amendments perpetuated the framers’ mistake of failing to establish an affirmative right to vote. Jackson died because white supremacists who controlled southern governments had circumvented the Fifteenth Amendment’s prohibition against denying the right to vote “on account of race, color, or condition of previous servitude.” They did so through patently dis- criminatory, although seemingly race-neutral, restrictions such as poll taxes and literacy tests.
As the pioneers of modern democracy, the founders understood that the right to vote grounds all other rights, that it empowers Americans to become participants in government, rather than mere petitioners. But it was their omission of voting rights that triggered a war over America’s embattled vote that continues to rage in the halls of Congress and in the courtrooms of federal judges. Yet, as in Marion, Alabama, it has spilled into the streets too, with life and death at stake in the ongoing struggle for people’s right to consent in their governing.
Opposition to voting rights for all Americans has revolved around three critical issues. Despite the revolutionary rallying cry of “no taxation without representation,” for most of U.S. history, the American political leadership has considered suffrage not a natural right but a privilege bestowed by government on a political community restricted by considerations of wealth, sex, race, residence, literacy, criminal conviction, and citizenship. The notion of privileged access to the vote survives into our own time, albeit in subtler forms than before.
Since the early republic, proponents of a limited vote have waved the banner of voter fraud, in earlier times to justify the disenfranchisement of supposedly corruptible people such as propertyless workers, women, racial minorities, or immigrants. Today, it is allegations of such forms of alleged election fraud as voter impersonation, repeat voting, voting by noncitizens, or balloting in the name of dead people that are used to justify restrictive measures like voter photo ID laws or draconian purges of registration rolls. Numerous studies have documented that such voter fraud is vanishingly small in recent elections, but the outcry continues as loudly as ever.
Disputes over the vote have been intensely partisan, with principled justifications for voting restrictions functioning as thinly masked attempts to favor one party over another. From the end of Reconstruction through the early twentieth century, for example, it was the lily-white Democratic Party that benefited politically from suppressing the African American vote. In recent years the partisan calculations have reversed as African Americans have become the most reliable of Democratic voters, and Republicans have come to depend on the white vote.
Throughout much of American history, policymakers have managed to exclude most Americans from the community of voters. A firsthand observer of a 1799 congressional election in Virginia reported, “The parties were drilled to move together as a body; and the leaders and their business committees were never surpassed in activity and systematic arrangement for bringing out every voter. Sick men were taken in their beds to the polls; the halt, the lame and the blind, were hunted up, and every mode of conveyance was mustered into service.” However, while operatives in Virginia mustered infirm white propertied males to the hustings, they could forget about the disenfranchised women, African Americans, Native Americans, and white men without property who comprised most of the state’s adult population.
Even today, in the world’s oldest surviving democracy, voter identification laws, registration requirements, felon disenfranchisement, voter purges, and overcrowded polling places disenfranchise many millions of American citizens each year. Many other Americans either do not register at all, or if registered they do not vote. The racial and partisan gerrymandering of electoral districts by political bodies deprives most Americans of a meaningful vote for legislative offices.
Extreme polarization between the Republicans and the Democrats only intensifies battles over the vote. Political scientists studying voting in Congress found that polarization between the parties nearly reached its mathematical maximum in the second decade of the twenty-first century, with Republicans and Democrats almost never voting together on contested issues. In earlier times, both major parties were known for harboring liberal and conservative contingents. Not so anymore. Today, with very few exceptions, the most liberal Republicans are more conservative than the most conservative Democrats. Partisans on either side of this divide pillory their opponents as not only wrong on the issues but also immoral, corrupt, and un-American.
The partisanship underlying today’s voter wars has lent itself to the creation of two separate democracies in the United States, one for red states, predominantly controlled by Republicans, and the other for blue states, predominantly controlled by Democrats. Red and blue states differ in their requirements for voting. In blue Mary- land, for example, you can vote just by pointing to your name on the registration list. In red Georgia, you must present a form of government-issued photo ID. Red and blue states also differ in the opportunities for voters to choose their representatives for legislative seats in Congress, state legislatures, city councils, county com- missions, and school boards. In states under their control, Republicans and Democrats have taken to crafting districts that discount and waste votes for the opposition party. The stakes in redistricting could not be higher, with voters now electing some 500,000 public officials in the United States, one for about every 500 American adults. By carefully designing the partisan composition of legislative districts with sophisticated mapping technology, the politicians who draw district lines largely decide the general election results of most legislative contests in the United States today, be- fore voters cast a single ballot.
Throughout the American experience, the most critical fault line of American politics is not among competing parties, ideologies, issues, or personalities, but between voters and nonvoters. Nearly 90 million American citizens did not vote for president in the general election of 2016, and two years earlier the tally of lost votes included some 140 million citizens. Once the world’s leader, the United States now trails most other developed democracies in voter participation. America’s nonvoters are not a representative cross-section of the adult population, but disproportionately comprise people who are young and low-income. Within America’s burgeoning minority population, only African Americans have come close to catching up with whites in voter participation.
In exploring the consequences of America’s constitutional omis- sion on voting rights, it is easy to judge the founders too harshly. As men of the late eighteenth century, they shared the prevalent belief in a circumscribed political community limited to individuals with the independence and capacity to vote wisely and knowledgeably. They could have wreaked far more damage on voting rights by following the lead of the states and imposing in the Constitution economic requirements for suffrage. While not flawless, the U.S. Constitution and Bill of Rights were nevertheless far ahead of their time in establishing a democratic form of government, buttressed by the guarantee of many civil rights and liberties to the common people. Nearly a century later, the four-time British prime minister William Gladstone said that “the American Constitution is, so far as I can see, the most wonderful work ever struck of at a given time by the brain and purpose of man.”
Drawing on primary sources, recent scholarship, historical sources, and my own work as an expert witness in voting rights cases, I trace in this book the embattled history of the vote in America from the drafting of the Constitution through current-day de- bates over voter identification laws, purges of registration rolls, and gerrymandered legislative districts. I cover not just qualifications for casting votes but also the opportunities for Americans to cast meaningful votes. These issues include qualifications for holding public office; the uses and abuses of at-large and district systems for electing federal, state, and local legislators; and the procedures for conducting elections and identifying winners and losers.
America’s default on the right to vote cannot be charged to the framers alone. Many subsequent generations of decision-makers have passed on the opportunity to establish a constitutional right to vote, even as they expanded the franchise for specified groups of Americans. The advancement of voting rights in the United States has not by any means followed a straight line of continued enfranchisement. Rather, the right to vote has both expanded and contracted over the course of American history, often at once and even sometimes in the same legislative halls or state constitutional conventions. Generations pass and the issues change, but the struggle for the ballot endures, as opponents of a broad suffrage continue to find new ways to suppress the right to vote.
The integrity of the vote in America now faces a dire and unprecedented threat: the manipulation of U.S. elections by hostile foreign powers. In 2016, the Russian government interfered in the American electoral process on behalf of Republican presidential candidate Donald Trump and Republican congressional candidates in select districts across the nation. Ironically, those who have advocated most strenuously for protecting the ballot from the spurious threat of voter fraud through such restrictive measures as voter photo ID laws and registration purges have resisted efforts to safeguard American elections from the real threat of future manipulation by Russia or other foreign adversaries. Russia’s efforts to compromise American democracy continue without any hindrance from the incumbent American president, who has propagated the most outlandish claims of voter fraud.
