As the November presidential election approaches, the logistics of voting have become increasingly politicized and contentious. This comes after months of President Donald Trump casting doubt on mail-in-voting results. On Sept. 2, President Trump suggested to his supporters in North Carolina that they should attempt to stress-test the security of their election systems by voting twice. Now, he is seemingly trying to create the fraud that he baselessly lampooned Democrats for engaging in. Just a week later, Georgia Secretary of State Brad Raffensperger (R) threatened felony prosecutions against 1,000 people who had allegedly double voted. Raffensperger described a situation extremely similar to the one Trump had previously encouraged — people voting absentee and then voting again in person. However, when Raffensperger was pressed by reporters for evidence that intentional voter fraud was occuring, he was only able to cite one example.
Trump and Raffensperger are drumming up panic over voter fraud for one reason: to justify measures that would prevent people from voting. Those that have borne witness to this behavior may be confused by the flagrant voter suppression efforts in a country that prides itself on its strong democracy. In response, some have openly questioned how this is possible — doesn’t the Constitution protect every citizen’s right to vote?
The answer to that question is: sort of.
The Constitution does not expressly guarantee the right to vote, and because of this, the right to vote is incredibly fragile. In fact, although voter suppression this election cycle is manifesting itself in a unique way, voter suppression itself is as American as apple pie. All levels of the government have failed to make sure that voting rights can withstand attack.
In order to contextualize these newer voter suppression efforts, an analysis on the tension surrounding the right to vote throughout history is useful. The 14th Amendment is the first time the Constitution alludes to some form of voting right for citizens. In the 15th Amendment, the right to vote is not to be “denied or abridged on account of race, color, or previous condition of servitude.” Although these Amendments do not protect an explicit right to vote, they nonetheless reference the right to vote. However, the Supreme Court has yet to seize the 14th Amendment to create the right. Consequently, conservative Democrats elected in 1870 — known as Dixiecrats — imposed Jim Crow laws that were designed to make it more difficult for Black people to vote. These laws were so successful that only 3% of eligible Black voters in the South were registered to vote in 1940. It was not until 1920 that women were extended the right to vote, and it wasn’t until 1965 that Congress eradicated Jim Crow.
Although these more well-known voter-suppression efforts end there, voting continues to be an incredibly precarious right. Soon after Jim Crow ended, the Republican National Committee pursued “ballot security” measures that were designed to “keep the black vote down considerably.” During the 2008 election, Democrats in Nevada received robocalls informing them that they could vote a day after the election. At the same time, Hispanic voters in Nevada received messages saying they could vote by phone. In the last several decades, we have seen blatant examples of voter suppression become legitimized and normalized, from gerrymandering to voter ID laws to recent efforts to attack mail-in voting.
This timeline paints a portrait of a country that has never been able to adequately protect the right to vote. While the audacious claims of voter fraud made by public officials that are being used to justify voter-suppression tactics are certainly disconcerting, voter suppression itself is not a recent development. This is not a Trump problem. Rather, voter suppression occurs because our government has historically and continues to fail to carve an explicit right to vote.
Enshrining the right to vote in the Constitution would be able to resolve many of these efforts. As it stands now, the lack of an explicit right to vote has let the courts allow a variety of different regulations that unnecessarily interfere with voting. With an explicit right to vote, each new restriction enacted around voting would be subject to “strict scrutiny,” meaning governments would need to prove that the policy serves a compelling interest of the state. This is the only way to adequately protect the citizenry from voter suppression, something that has plagued this country since its founding. This issue will not be solved with a change in executive leadership.
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Email Emily Dai at [email protected].
