Right to Vote: Cycles of Expansion and Contraction

18th century thinking proposed that men who owned property had a stake in society and were committed to the community; property owners had sufficient independence needed to have a voice in governance; those without economic means were of questionable competence and unworthy of the vote.

Many colonies imposed other restrictions on voting, including religious tests. Catholics were barred from voting in five colonies and Jews in four.

The right to vote varied widely. In frontier areas, seventy to eighty percent of white men could vote. But in some cities, the percentage was forty to fifty percent.

[excerpt] U.S. Constitution. Article 1. Section 2

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

[excerpt] U.S. Constitution. Article I. Section 4.

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…”

The American Revolution was fought in part over the issue of representation and voting, rejecting the idea that American representation in Parliament could be through English members of Parliament. For Patriots government derived its legitimacy from the consent of the governed. No taxation without representation! To many patriots, restrictions on voting was a violation of fundamental rights.

During the same period of expansion of white male suffrage, women and many free Black men lost voting rights they might have held. In 1855, only five states - Maine, Massachusetts, New Hampshire, Rhode Island, Vermont - allowed African Americans to vote without major restrictions. In New Jersey, the only state that had allowed women to vote, and only those with property, all women lost the right to vote in 180

Why did the states gradually move towards universal suffrage for free white men, regardless of property or income? It was a response to multiple factors: property-less men demanding rights; territories granting voting rights to attract settlers; political parties wanting to broaden their base.

The U.S. Constitution does not explicitly exclude women from congress, from the presidency, from juries, or from voting. But in Minor v. Happersett (1875) the U.S. Supreme Court ruled that women could only receive the vote as a result of explicit legislation or constitutional amendment, and not through interpretation of the Constitution and its Amendments. In a unanimous opinion, the Court stated it was "too late" to claim the right of suffrage by implication and suffrage was a matter for the states, not the federal government, to decide. To the Supreme Court, voting was not an inherent right of citizenship, and the right of women to vote was not protected under the 14th Amendment.

Slowly, state by state, women succeeded in getting the vote. In 1869, Wyoming Territory, eager to increase its population, enfranchised women. Next was Utah, which feared the increasing non-Mormon voters. Idaho and Colorado also extended the vote to women in the mid-1890s. Other states, counties, and cities allowed women to vote in local and municipal elections.

By 1890, women were organizing for the vote under the National American Woman Suffrage Association (NAWSA). Initially NAWSA did not position themselves in favor of equal rights. Rather NAWSA argued that enfranchised women would uplift politics and be a moral counter to the immigrant vote. Opponents argued that suffrage would increase family strife, erode the definitions of masculine and feminine, and endanger women by exposing them to the corrosive political arena.

In the early twentieth century, the suffrage movement became more militant. Growing numbers of working-class women, eager to improve their working conditions, became interested in suffrage.

World War I increased support for the 19th Amendment. By their wartime activities, suffragists gained public approval. Many suffragists sold war bonds and engaged in volunteer activities that supported the troops. Women’s suffrage was in harmony with the view of the Great War as a War for Democracy.

Per Article V. of the U.S. Constitution, there are two paths to proposing an amendment to the Constitution.

(1) An amendment may be proposed by a two-thirds vote of both Houses of Congress, or,

(2) if two-thirds of the states' legislatures can request a national convention that can meet to propose an amendment. To date, although there have been petitions from states for constitutional conventions, the threshold requirements have never been met and no conventions called.

Ratification of the Proposed Amendment

The resulting proposed amendment must then be ratified by three-fourths of the state legislatures, or three-fourths of ratification conventions called in each state. Congress may set a time limit for state action. The official count is kept by the Office of the Federal Register at the National Archives.

"Be it enacted . . . , That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding."

The Civil Rights Act of 1870, also known as the Enforcement Act or the First Ku Klux Klan Act, set criminal penalties for those attempting through violence or the threat of violence to prevent African Americans from voting. As a result of the Act, the criminal jurisdiction of the federal courts expanded.

1868 (Sept-Oct). Opelousas Massacre. White men of Opelousas, Louisiana killed over 250 people. Most of whom are Black Americans. A year earlier, Louisiana had ratified a state constitution giving Black men the vote. The massacre was a white terrorist reaction to suppress the Black vote and its allies.

"On Easter Sunday in 1873, the White League, a paramilitary organization, shot approximately 100 black state militia members in a clash over a contested gubernatorial election in Louisiana. Three White League members died in the battle known as the Colfax Massacre. Approximately 100 members were charged with felony conspiracy to deny an individual’s constitutional rights. Nine of them were tried, but all were set free without penalty.

The Supreme Court’s decision related to the Colfax Massacre [United States v. Cruikshank, 1876] effectively ended Reconstruction. The ruling held that the Due Process and Equal Protection clauses of the 14th Amendment applied only to the actions of states—not individuals. It wasn’t until the civil rights movement of the 1960s that the Federal Government resumed efforts to protect African Americans in the South." -- The Colfax Massacre 1873, National Archives

1890 Mississippi Constitutional Convention. Mississippi rewrites its constitution specifically to nullify the intent of the 15th Amendment. Adopted November 1, 1890, the Constitution utilizes poll taxes and literacy tests to effectively disenfranchise the vast majority of Black voters. Mississippi became the "model" for the other Southern states in campaigns to institutionalize voter suppression.

1898 (November) Wilmington Massacre. A white mob killed at least 60 people and overthrew the legally elected biracial government of Wilmington, North Carolina.

“The 1920 Ocoee Massacre in Orange County, Florida, remains the largest incident of voting-day violence in United States history. Events unfolded on Election Day 1920, when Mose Norman, a Black U.S. citizen, attempted to vote in Ocoee and was turned away from the polls. That evening, a mob of armed white men came to the home of his friend, July Perry, in an effort to locate Norman. Shooting ensued. Perry was captured and eventually lynched. An unknown number of African American citizens were murdered, and their homes and community were burned to the ground. Most of the Black population of Ocoee fled, never to return.” -- Orange County Regional History Center, -- Orange County Regional History Center

1884 U.S. Supreme Court: Elk v. Wilkins: denies birthright citizenship to Native Americans born on tribal lands. Native American John Elk was denied the right to vote after he left his reservation in Nebraska and began living among white people. The Supreme Court found that Native Americans born on reservations or associated with tribal membership were not citizens by birth under the 14th Amendment and could be denied the right to vote.

1887: Dawes Act passed. The Act tried to break up reservations and tribal lands into private plots and force Native Americans to assimilate into White society. Tribal land would become non-Native land. Native Americans who accepted individual land grants under various statues and provisions would be American citizens.

Ironically, Native Americans could obtain citizenship not by birth, but only by alternate means: military service, marriage to a white citizen, or accepting land allotments under the Dawes Act. However these suffrage routes were not widely used.

1890 Indian Naturalization Act: allowed tribal members in Indian Territory (Oklahoma) to apply for citizenship by the naturalization process. But voting rights did not necessarily come with naturalization.

1924 Indian Citizenship Act: The Act (also known as Snyder Act) finally grants full citizenship to Native Americans. Probably passed in recognition of Native American military service in World War I. However, states still continued to deny voting rights by requiring certain qualifications to register to vote. Native Americans living on tribal lands often do not pay property taxes, a loophole that states used to suppress the vote. Arizona courts denied the vote for decades to Native Americans on the basis that Native Americans were "persons under guardianship."

1947 Federal Court case: Trujillo v. Garley: Miguel Trujillo (an Isleta Pueblo World War II veteran) is denied his right to vote because he did not pay New Mexico's state property tax. Trujillo sues and wins. The New Mexico state constitution of 1912 excluded Native Americans who resided on tribal lands from voting on the grounds that they didn’t pay property taxes on tribal trust lands. In Trujillo v. Garley, the U.S. District Court of New Mexico ruled that states must grant Native Americans the right to vote regardless of whether they resided on tribal lands or not.

1882: The Chinese Exclusion Act (22 Stat. 58). Congress passes the first Chinese Exclusion Act to regulate immigration along racial lines. The law suspends the immigration of Chinese laborers for ten years and allows those Chinese who were in the United States as of November 17, 1880 to remain. Chinese may not become citizens. The 1882 law paves the way for a series of laws between 1882-1904 that severely restrict Chinese immigration flows and provide for the deportation of many Chinese nationals already residing in the United States. These pieces of legislation are reinforced by corresponding Supreme Court decisions that restrict access to voting rights.

1892 Geary Act (Act to Prohibit the Coming of Chinese Persons into the United States). The law extends the prohibitions of the 1882 Chinese Exclusion Act for ten years and requires all Chinese nationals residing in the United States to obtain certificates to document their lawful presence. The Act later was expanded to cover Hawaii and the Philippines.

1921 U.S. Supreme Court case: Takao Ozawa v. United States. Denies U.S. citizenship to persons of Japanese descent.

1943 Magnuson Act. Repeals the Chinese Exclusion Act. Chinese immigrants and their American born children are eligible to be naturalized. It is the first legislation since 1870 which reduced racial and national barriers to immigration. "The repeal of this act was a decision almost wholly grounded in the exigencies of World War II, as Japanese propaganda made repeated reference to Chinese exclusion from the United States in order to weaken the ties between the United States and its ally, the Republic of China." -- see Dept. of State. Office of the Historian.

1952 Immigration and Nationality Act (McCarran-Walter Act). Grants the right of U.S. citizenship to Japanese Americans born in the United States.

There was no right to vote for Women in Virginia at the beginning of the 20th century. The Virginia suffrage movement geared up with the founding of the Equal Suffrage League of Virginia in 1909. The Equal Suffrage League campaigned for the women's vote by educating citizens and lobbying legislators.

Between 1912 and 1916, the Virginia legislature voted and failed to pass three women's suffrage bills.

The Equal Suffrage League of Virginia published a 1916 pamphlet making an argument for enfranchisement of white women. It stated that "the enfranchisement of Virginia women would increase white supremacy." Shamefully, suffragists argued that poll taxes and other voter suppression tactics like literacy tests would prevent Black American women from voting.

In 1919, before the ratification of the 19th Amendment, women had gained some suffrage rights on a state by state basis: either full suffrage, presidential suffrage, or partial suffrage. Women had no voting rights in the states of Alabama, Georgia, Maine, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Virginia, and West Virginia.

Virginia did not ratify the 19th Amendment until February 21, 1952.

The 1957 Civil Rights Act had been watered down by white southern senators and the 1960 Act attempted to address voting rights. Voter disenfranchisement of African Americans and of Mexican-Americans had continued despite the 1957 Act.

The 1960 Act did not contain concrete mechanisms to enforce school desegregation, integrate public accommodations, or end housing discrimination.

On Sunday March 7, 1965 some 600 protestors, civil rights activists, and supporters left the Brown Chapel A.M.E. Church in Selma and walked towards the Edmund Pettus Bridge, on their way out of Selma towards the capital, Montgomery. The goal was to pressure the then state governor George Wallace to act to protect the right to vote in Alabama.

When they came to the Edmund Pettus Bridge in Selma, the march was brutally assaulted. Alabama state troopers, law enforcement officers, and some local citizens attacked, sometimes from horseback, with billy clubs, tear gas, whips, fire hoses, and beat men and women, and scattered children. Dozens of marchers were severely injured. The televised attacks were seen all over the United States, galvanizing public support for civil rights and for the voting rights campaign. After this 'Bloody Sunday', two more marches for voting rights followed. The Bloody Sunday march leaders were John Lewis of the Student Nonviolent Coordinating Committee (SNCC) and the Rev. Hosea Williams of the Southern Christian Leadership Conference.

On Tuesday, March 9, two days after Bloody Sunday, Dr. Martin Luther King led a second march of 1,500 to 2,000 men and women to the Edmund Pettus Bridge, with the goal of walking the 54 miles to Montgomery. At the bridge, they were met by troopers and other law enforcement officers. The officers approached King and asked him to disperse. Dr. King and other clergy knelt in prayer. The march turned around and returned to Brown Chapel to avoid more violence. The second march is sometimes called Turnaround Tuesday.

On March 21, 1965 a third march began in Selma. The marchers, grew to be over 25,000 people, and protected by military police and Army troops reached the Alabama State Capitol building on March 25. Here, Dr. King delivered his Our God is Marching oration, demanding voting rights for African Americans.

Section 2. Modeled on the language of the 15th amendment, contained a nationwide prohibition of the denial or abridgment of the right to vote on account of race or color. It created mechanisms to challenge discriminatory practices in jurisdictions not covered by the Section 5 preclearance rule.

Section 4: "When Congress enacted the Voting Rights Act of 1965, it determined that racial discrimination in voting had been more prevalent in certain areas of the country. Section 4(a) of the Act established a formula to identify those areas and to provide for more stringent remedies where appropriate. The first of these targeted remedies was a five-year suspension of "a test or device," such as a literacy test as a prerequisite to register to vote. The second was the requirement for review, under Section 5, of any change affecting voting made by a covered area either by the United States District Court for the District of Columbia or by the Attorney General. The third was the ability of the Attorney General to certify that specified jurisdictions also required the appointment of federal examiners. These examiners would prepare and forward lists of persons qualified to vote. The final remedy under the special provisions is the authority of the Attorney General to send federal observers to those jurisdictions that have been certified for federal examiners.

Section 4 also contains several other provisions, such as Section 4(e) and Section 4(f), that guarantee the right to register and vote to those with limited English proficiency. Section 4(e) provides that the right to register and vote may not be denied to those individuals who have completed the sixth grade in a public school, such as those in Puerto Rico, where the predominant classroom language is a language other than English. In Section 4(f), the Act addresses the ability of those persons who are members of language minority groups identified in Section 4(f)(2), to register and vote as well as to get information relating to the electoral process in a manner that will ensure their meaningful participation in the electoral process" - Civil Rights Division, U.S. Dept of Justice

Section 5 and Preclearance. Section 5 required jurisdictions with a history of discriminatory voting practices to obtain preclearance (approval) from the District Court for the District of Columbia or the U.S. Attorney General for any new voting practices and procedures.

1970: Extended Section 5 for five years.

Requires districts with significant numbers of non-English speaking voters to provide assistance to register and vote. Extended Section 5 for seven years.

Special provisions of the Act relating to Section 4 are extended for 25 years. Makes it easier for the elderly and people with disabilities to vote.

Extends the prohibition of covered States and political subdivisions from providing voting materials only in English.

Renewed special provisions of the Act as part of the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, Cesar E. Chavez, Barbara Jordan, William Velazquez and Dr. Hector Garcia Voting Rights Act Reauthorization and Amendments

This was a 1974 landmark Supreme Court decision, decided 6-3, that ruled that states may deny the vote to convicted felons. This is the first U.S. Supreme Court case that examinted the constitutionality of felon disenfranchisement. The Court held that disenfranchisement of convicted felons who had completed their sentences and paroles did not deny them equal protection of the laws.

"No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the governor or other appropriate authority (VA Const. Art. 2, § 1). The Department of Corrections is required to provide persons convicted of felonies with information regarding voting rights restoration and assist with the process established by the governor for the review of applications (VA Code Ann. § 53.1-231.1 et seq.). Individuals with felony convictions may petition the courts in an attempt to restore their voting rights (VA Code Ann. § 53.1-231.2). 

In 2021, Virginia Governor Ralph Northam released an executive action that allows any person released from incarceration to qualify for restoration of voting rights.

In 2023, Gov. Glenn Youngkin reversed that practice and began requiring individuals to apply for rights restoration once again."-- Brief, Felon Voting Rights, Nat. Conf. of State Legislatures

"The Brennan Center for Justice and New York University’s School of Law files a class-action suit on behalf of 600,000 disenfranchised Florida citizens against an 1868 Florida law that permanently took away convicted felons’ right to vote... They believe that the law is discriminatory in intent because it disproportionately affects African Americans, and, therefore, it violates the Fourteenth Amendment’s equal protection clause and the Fifteenth Amendment’s prohibition of discriminating against voters by race. In the case of Johnson v. Bush (2005), the U.S. Court of Appeals upholds the law on the grounds that it applies to all felons regardless of race." -- Annenberg Classroom, 15th Amendment