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Originally, the right to vote was limited to white
male property owners (and to Christians in some
jurisdictions)
Constitution originally gave states the power to
determine qualifications for “electors” (voters)
There was no specific “right to vote” under the
original Constitution
15th Amendment (1870): Barred discrimination in
voting on the basis of race, color or previous
condition of servitude (slavery).
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The 14th and 15th Amendments are the first time that a “right to
vote” is mentioned in the Constitution.
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17th Amendment (1913): Senators elected by
popular vote.
19th Amendment (1920): Barred discrimination
in voting on the basis of sex.
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Women already had the right to vote in some states:
 The Wyoming Territory granted women the right to
vote in 1869. This was the first jurisdiction in the US to
do so.
 The Utah Territory granted women the right
to vote in 1870, but it was subsequently
repealed by Congress.
 When Utah sought admission as a state in
1896, one condition imposed by Congress
was that women not be given the right to
vote.
 Utah agreed to this provision, was admitted
to the Union, and then restored women’s
voting rights (nothing Congress could do
about it after they were admitted as a state).
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23rd Amendment (1961): The District of
Columbia is given representation in the
Electoral College.
24th Amendment (1964): Abolished the poll tax
as a requirement for voting in federal elections.
26th Amendment (1971): Lowered the voting
age to 18.
Now, almost all citizens 18 and older have the
right to vote in all elections.
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Literacy test
Requirement to read and interpret a section of the
Constitution to the satisfaction of the voting registrar
 Selectively enforced against black voters, also
disenfranchised many illiterate whites
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Poll tax
White primary
If the party is a “private organization,” they can restrict
their activities to “members.” These “activities” include
voting in the party primary, which was the decisive
election in the one-party Democratic South.
 Outlawed by the Supreme Court in Smith v. Allwright
(1944).
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Malapportionment: Drawing district lines so that
populations are grossly unequal in number; people in the
larger district will be underrepresented
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One state legislative district in Tennessee contained ten times as
many people as another
US Supreme Court decisions on malapportionment:
Baker v. Carr (1962) introduced the concept of “vote
dilution”: One person’s vote must count equally to another’s
Reynolds v. Sims (1964): both houses of a state legislature
must be based on population
Wesberry v. Sanders (1964): US House districts within a state
must be equal in population
Gerrymandering (creative district drawing)
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“Cracking, packing and stacking” (see Welch)
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Voting Rights Act of 1965
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Suspended literacy tests
Permanently banned practices used to discriminate on the
basis of race
Provided for federal registrars in jurisdictions with
literacy tests or similar devices and where less than 40%
of eligible citizens voted in 1964 Presidential election
Requires Department of Justice preclearance (approval) of
changes in voting practices in covered areas
Primarily targeted at the South but as a result of
expansion of its provisions, now includes Alaska and
three boroughs of New York City
Renewed and amended in 1970, 1975, 1982 and 2006
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US Supreme Court upheld constitutionality of
VRA in South Carolina v. Katzenbach (1968)
Voting Rights Act of 1970
Literacy tests permanently banned
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Voting Rights Act of 1975
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Extended protections to language minorities
Election jurisdictions must provide balloting
materials in additional languages where >10% of the
population speaks it as a primary language
 Spanish in NYC and other areas
 Chinese in San Francisco
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Voting Rights Act Amendments of 1982
Changed discriminatory “intent” standard to
“effect” standard
 In order to challenge a voting practice, it is no longer
necessary to prove that it was adopted with the
intent to discriminate, only that it has the effect of
discriminating on the basis of race
 This was the basis of the recent challenge to SC’s
Voter ID law (disproportionate effect on black voters
even if this was not its intention)
 Banned practices where minority voters have less
opportunity than others to participate in the electoral
process and “elect candidates of their choice”
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Racially polarized voting: A majority of
members of one racial group support one
candidate and a majority of members of
another racial group support another candidate
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In the South (and some other areas), a majority of
white voters support Republicans and a majority of
black voters support Democrats
Makes it difficult if not impossible for minority
candidates to get elected
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The VRAA of 1982 was interpreted by the Justice
Department as requiring the construction of
districts where minority candidates had a fair
chance of being elected.
This requires the construction of districts where
members of a minority group (e.g., AfricanAmericans, Hispanics) are the majority of the
population.
This requires gerrymandering in favor of the
minority group.
Since NC is 16% black, it was required to construct
two (out of 12) Congressional Districts that were
majority-black.
1992-1997
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MMDs elected the first African-American
Members of Congress since Reconstruction
from NC, SC and other states
Reverse discrimination? 14th Amendment
prohibits discrimination on the basis of race,
not discrimination against one particular group
Shaw v. Reno (1993): US Supreme Court held
that NC 12th District violated the rights of a
white resident, since it was designed to elect
someone not of her race
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NC had to redistrict again in 1998, 2000, 2002
Hunt v. Cromartie (2001): Supreme Court upheld
one version of the 12th District, finding that race
was not the “predominant” consideration in its
design
Political gerrymandering is permissible (perfectly
OK to draw a district designed to elect a
Democratic candidate, a majority of whose
population happens to be black)
MMD was believed to be the only way for black
candidates to get elected in white-majority areas:
does Obama’s election change this? (He won NC)
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Named for Fannie Lou Hamer, Rosa Parks and
Coretta Scott King
Extended language-minority requirements and
preclearance requirements
Controversies: Should states like SC continue
to be required to get federal approval for
changes in voting practices because of long-ago
discrimination?
Should balloting materials be provided in
languages other than English?
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Longer residency requirements
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Requiring you to live in an area for a year or more
before you can vote there disenfranchises mobile
populations (who are more likely to be poor)
Federal law now prohibits a residency requirement
of longer than 30 days
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Registration requirements
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The earlier the cutoff date to register before the election,
the less likely people are to register and therefore to vote
SC requires you to register 30 days before the election
(most states require some advance registration period)
Eight states allow you to register on Election Day and
then vote immediately
NC allows you to register and then vote during the early
voting period, but not on Election Day itself
North Dakota has no voter registration, and very high
turnout
Academic studies indicate little evidence of fraud
committed through this practice
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Intended as safeguard against voter fraud (but
academic research indicates that very little vote
fraud occurs in the form of identity theft or
impersonation at the polls)
ID requirements make it harder to vote
An estimated 11% of eligible voters do not have
government-issued photo ID
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Lack of ID disproportionately affects poor
people in general and African-Americans in
particular
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A black Southerner born before the Civil Rights Act
of 1964 is more likely to have been born at home if
their mother couldn’t go to a segregated hospital to
give birth
If you were born at home, you’re less likely to have a
birth certificate than if you were born in a hospital
What if you need a birth certificate to get a photo ID?
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SC’s voter photo ID law is subject to Justice
Department preclearance
The Justice Department denied preclearance
because it found that it would have a
disproportionate effect on black citizens
On October 12, 2012, a federal court upheld the
ID law but postponed it from going into effect
until 2013
Arizona has just passed a law requiring proof
of citizenship to register to vote – does this
raise the same issues?
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Do you need an excuse to vote absentee by mail, or can
anyone do it for any reason?
If you don’t need an excuse for an absentee ballot, it’s
easier to vote
27 states allow absentee voting with no excuse
Oregon and Washington state conduct all elections by
mail
Significant potential for voter fraud in absentee
balloting
In SC, you must apply for an absentee ballot ahead of
time and meet certain requirements
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Examples:
Students attending school away from home
Military personnel
Anyone age 65 and older
Hospitalized, job prevents you from voting while polls are
open, death in family, etc.
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Vote in person at a designated site (such as a
public library) during a period of time prior to
Election Day
Available in 32 states and DC, not in SC
 NC has early voting Oct. 18-Nov. 3 this year
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This is supposed to make it easier to vote, but
actually appears to decrease turnout
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The theory is that if voters’ attention is directed
away from a single Election Day, they’re less likely
to vote
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Certain types of technology make it harder for
your vote to be cast and counted accurately
This became an issue in the 2000 presidential
election in Florida
Punch cards: 4% error rate
 Computerized systems: <2% error rate
 Poorer (more Democratic) areas were more likely to have
cheaper, less accurate technology: did this actually affect
the outcome of the election?
 Bush won Florida by 537 votes
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Help America Vote Act of 2002 (HAVA)
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Grants to states to improve voting technology
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People under 18
Non-citizens
People who move within 30 days of the election
can vote using their old residence, not necessarily
their new one
Those declared mentally incompetent
Convicted felons in most states
College students
In some states, living in a dorm does not meet the
residency requirement to vote in the place where you
attend school; this was a controversy at WU for several
years
 Most students use their family home as a voting address
even when they’re away at school
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5.85 million ex-felons (1 in 13 black men) are
ineligible to vote after their criminal sentences
have been served
In 11 states, disenfranchisement after a felony
conviction is permanent
In 35 states, you have no voting rights while on
parole (incl. SC)
In 30 states, you have no voting rights while on
probation
In ME and VT, you can vote while in prison
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VOTING RIGHTS