A timely moment in a major presidential election year to explore voting and the Constitution

SEPTEMBER 19, 2020

This blog was originally posted on September 17, 2020 on Share My Lesson. It has been modified for iCivics. 

This week marked the 233rd anniversary of the signing of the United States Constitution on September 17, 1787. We celebrate this occasion as Constitution Week, and teachers and students across the country use this annual civic holiday as an opportunity to carefully study the Constitution. In a major presidential election year, a lot of attention is justifiably on the right to vote.

You may be surprised to learn that the Constitution does not explicitly provide for the right to vote. How is this possible? The Framers of the Constitution wrestled with not only questions of constitutional design, but also the political realities of getting the new government they were creating approved (or ratified) by the people. James Madison described the problem facing the Framers in 1787:

The right of suffrage is a fundamental Article in Republican Constitutions. The regulation of it is, at the same time, a task of peculiar delicacy. Allow the right exclusively to property, and the rights of persons may be oppressed. The feudal polity alone sufficiently proves it. Extend it equally to all, and the rights of property or the claims of justice may be overruled by a majority without property, or interested in measures of injustice. Of this abundant proof is afforded by other popular Govts.1

Property ownership as a qualification for voting was the central concern at the time, with some framers favoring making it a qualification for voting and others, like Benjamin Franklin reminding his fellow delegates that many people who did not own property had joined the fight for independence. A uniform suffrage requirement was ultimately rejected. The compromise was to leave it to the states. Article I, Section 4 of the Constitution says:

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.

This compromise allowed roughly two-thirds of white men – but very few others – to vote. In the decades that followed, the states moved quickly toward adopting universal suffrage for white men. By 1860, most white men without property were able to vote. For Blacks, women, Native Americans, and younger Americans between the ages of 18 and 21, the fight for the franchise would be much longer and more fraught. 

Expanding the Right to Vote

Blacks

Following the Civil War, slaves were freed by the Thirteenth Amendment, and through the Fourteenth Amendment granted the rights of citizenship. Despite the Fourteenth Amendment, many states continued to systematically deny Blacks access to the polls. Congress passed the Fifteenth Amendment to address this growing issue:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Despite this broad language, states still found ways to prevent Blacks from voting through mechanisms like poll taxes, literacy tests, fraud and intimidation. The fight for Black suffrage continued on for decades. Poll taxes would not be outlawed until the 24th Amendment was passed by Congress in 1962, and ratified by the states in 1964. It reads:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

In 1965, the Voting Rights Act was passed by Congress. It directed the U.S. Attorney General to enforce the right to vote for Blacks, and prohibited the use of literacy tests and other methods of excluding blacks from voting.2 By the end of 1965, a quarter of a million new black voters had been registered to vote. The Voting Rights Act was reauthorized in 1970, 1975, 1982, and 2006.3 

In 2013, the United States Supreme Court, in the 5-4 decision of Shelby County v. Holder, held that Section 4 of the Voting Rights Act was unconstitutional, finding that the burdens imposed on the states by that legislation are no longer responsive to the current conditions in the voting districts covered by the legislation. The Court also held that the formula for determining whether changes to a state’s voting procedures should mandate federal review is now outdated. To date, despite significant political pressure, Congress has not passed an amendment to the Voting Rights Act addressing the Supreme Court’s holding in Shelby County.

Women

This year we celebrate the 100th anniversary of the 19th Amendment and the long-fought battle for universal women’s suffrage. 144 years after Abigail Adams urged her husband John to “remember the ladies,” the 19th Amendment was ratified in 1920:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.

The road to the 19th Amendment is a long and important one. You can visit the Constitution Center to learn more.

Native Americans

Despite the fact that the Fifteenth Amendment of 1870 states that the right to vote shall not be denied or abridged on account of race, Native Americans were often denied voting rights by states and localities. It wasn’t until the passage of the Snyder Act in 1924 that Native Americans born in the US were granted the full rights of citizenship, including the protection of the right to vote. Still, it would take over 40 years for all fifty states to allow Native Americans to vote.4 

Citizens 18 and Older

Section 2 of the Fourteenth Amendment, enacted after the Civil War, protects the right to vote for the “male inhabitants of [each] state, being twenty-one years of age, and citizens of the United States.” While states could lower the voting age, should they choose to, they were not required to do so. During the Vietnam War, with so many young men between 18 and 20 involuntarily drafted to fight, there was substantial political pressure to expand the franchise to all people between the ages of 18 and 21. The ultimate result was the passage of the Twenty-Sixth Amendment:

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Issues of voting rights still prevail today. Contemporary issues include the restoration of the right to vote to convicted felons, voter ID requirements, gerrymandering, access to polling stations, and this year the use of wide scale mail-in ballots.

To help your students become more informed voters, be sure to explore iCivics’ Politics and Public Policy Unit that offers infographics, lesson plans, WebQuests and our popular election simulation games, Cast Your Vote and Win the White House.


Written by Julie Silverbrook

Julie Silverbrook is Senior Director of Strategic Partnerships at iCivics. Julie served as Executive Director of The Constitutional Sources Project (ConSource) in Washington, DC, from 2012-2020. She regularly writes and lectures on the United States Constitution and its history, and the importance of civic education to the health of the American republic. She holds a J.D. from the William & Mary Law School, where she received the National Association of Women Lawyers Award and the Thurgood Marshall Award and served as a Senior Articles Editor on the William & Mary Bill of Rights Journal. She graduated Summa Cum Laude, Phi Beta Kappa from The George Washington University with a B.A. in Political Science. Upon graduation, she was awarded the GW Columbian College of Arts and Sciences Distinguished Scholar Award, the highest academic award given to a student in the arts and sciences college. 

James Madison, Note to His Speech on Suffrage 

Library of Congress, Voting Rights for African Americans

United States Department of Justice, History of Federal Voting Rights Laws

Library of Congress, Voting Rights for Native Americans