Fragile Rights: The History of Voting in the United States

This story was originally published by the Davis Humanities Institute on May 1st, 2017, but is no longer hosted there after a website update. I am re-posting it here for that reason. 

In 2013, the Shelby v. Holder U.S. Supreme Court decision gave states permission to change their election laws without needing advance clearance from the Department of Justice. This decision invalidated a portion of the 1965 Voting Rights Act, which required preclearance with the DoJ to protect voters of color. Most people might ask: How did we get to this point?

But Professor of History Greg Downs is not interested in asking “how did we get here?” In fact, he sees this as the wrong question. The United States, he argues, has never been a country where the government guaranteed the right to vote. Indeed, the United States is a country with a tradition of disenfranchisement, rather than enfranchisement.

In his talk titled “Voting Rights Under Fire,” Downs argued that U.S. history could be defined by the struggle to expand and retract the vote. Far from being a recent development, “challenging registration laws and low voter turnout” are American traditions dating back to the 1830s. As such, Downs suggests that Americans need to be prepared to fight for the right to vote, rather than settle for less based on the notion that such a right is a given.

Much of the misconception that the United States is a democracy that champions the right to vote comes from post-revolutionary war rhetoric. In a time where white men controlled the vote, those in power were more than happy to claim their love for democracy. But as immigrants began flooding into the United States in the middle of the nineteenth century, their tune changed. Suddenly, it was more important to restrict the vote than expand it.

Such evidence has led some political scientists to suggest that, had the Irish immigrated 20 years earlier, it is likely that the US would not have evolved into a democracy. But efforts to retract the vote based on fears over immigration were met by simultaneous attempts to expand the vote, most notably by the women’s suffrage movement started in 1848. Thus, not only is retraction of the vote a US legacy, but so is protest in favor of its expansion.

While the Civil War and the subsequent passage of the 15th amendment represented a blow to those in favor of retraction, Americans soon after experienced another backlash against voting rights. This came mainly in the south, where blacks increasingly lost the ability to vote as a result of various restrictive laws. But as in the case of immigrants, backlash against black voters was met by simultaneous victory on another front: the passage of the 19th amendment.

That said, the 19th amendment did not represent the perfect solution either. Some scholars have argued that the enfranchisement of white women was predicated on the disenfranchisement of black men. Additionally, like the 15th amendment, the 19th amendment was a negative right. That is, it did not grant women the right to vote outright. It listed the reasons for why women could not be denied the right to vote.

Downs notes that one possible reason why Shelby County v. Holder won by a 5-4 majority is because of a lack of awareness regarding U.S. history. Chief Justice Roberts wrote in the majority opinion that he removed the need for preclearance because “the country had changed,” and thus it was no longer necessary for the federal government to restrain state governments.

And yet as soon the Supreme Court removed preclearance, several states began passing restrictive voting laws. According to Downs, had Roberts been aware of the United States’ long history of backlashes against the right to vote, he may have been more suspicious of his idea that “the country had changed.” 
Shelby County v. Holder has already had a lasting impact. Downs notes how strict voter ID and registration laws passed in Wisconsin and North Carolina may have contributed to the slight republican victories in the 2016 presidential election. The only solution, much as has been done in the past, is to continue to fight for easier access to the vote. Whereas many may believe their rights to be inalienable, the truth, as the fight over enfranchisement reveals, is that “rights don’t protect themselves.”