Voting Rights (Compound)

2012-09-24 14:37:33

The idea of one person, one vote is attractively simple. The concept that blacks and women as individuals deserved the right to vote as a matter of basic principle and personal respect holds great moral and logical weight. But what about the idea that voting rights given to groups are just as important as the rights given to individuals? After all, political power—defined in terms of actual effect on public policy—belongs to groups and not to individuals, insofar as individual voters can tell the government how to exercise its authority only when those individuals are aggregated into groups.

Viewing the right to vote as exclusively individual neglects the equally important facet of voting as a group-based right. Blacks and women needed the power to vote as individuals as a matter of dignity and respect. And as groups, blacks and women needed the right to vote as a matter of basic survival: Each group needed political power to obtain equal protection of the law and a fair share of the material benefits provided, as well as the burdens imposed, by the government.

A sophisticated understanding recognizes the essentially hybrid nature of constitutionally protected voting rights, and all political rights, in America. The group aspect highlights voting as the power and ability to direct government decisions. The individual dimension underscores the need for respect—the ability to vote confers status on the individual and provides a forum for expressing one’s views.

The modern Supreme Court, unfortunately, has failed to fully recognize the group-based component present in voting rights. For example, since its seminal decision in Shaw v. Reno in 1993, the Court has repeatedly invalidated majority–minority voting districts when race is used too heavily as a factor in the drawing of district lines. In Miller v. Johnson, the Court justified its decision on the ground that ‘‘[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.’’ This idea assumes that line-drawing legislators should ordinarily be color blind. This reasoning focuses exclusively on the individual aspect of voting rights while ignoring the group component present in all political rights including voting rights.

Yet the idea that voting rights are hybrid in nature finds support in enactment of and the circumstances giving rise to the Fifteenth and Nineteenth Amendments. It also gains traction from ideas that underlie the decisions in more than 100 years of case law addressing the nature of political equality in a constitutional context.

These sources form a solid foundation to support the dual dimensions of voting rights. Each shows that the right to vote contains both an individual respect component and a group-based active component. By slighting one aspect of voting rights, the modern Court has been unable to resolve difficult constitutional questions in a coherent way and as a result has often built its doctrinal edifices on shaky ground.

Black Suffrage, Reconstruction, and the Fifteenth Amendment

To understand the Fifteenth Amendment, we must first ask why it was necessary—why, that is, the Fourteenth Amendment did not enfranchise the newly freed slaves. It is relatively clear by the text and historical accounts that the Reconstruction framers did not intend the Fourteenth Amendment’s Equal Protection, Due Process, or Privileges and Immunities Clauses to impact the right of states to regulate political rights at all, including the right to vote. Indeed, passage of the Fourteenth Amendment was made smoother because its backers explicitly eschewed the Amendment’s application to voting, office-holding, jury service, and militia service—the four traditional components of so-called political rights. The Fifteenth Amendment, by contrast, passed not long before the Republican Congress lost power, explicitly takes on the political rights realm by declaring that ‘‘the right of the 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.’’

The story of the Fifteenth Amendment involves the group dimension of the right to vote, as well as the individualistic component. Support for black suffrage certainly derived in part from the basic idea that blacks deserved the right to vote as individuals. Black Americans merited suffrage as a matter of personal dignity and self-respect, as well as to confer status as newly ordained citizens. Certainly the military service of black Americans in Union armies during the Civil War supported the argument that blacks, as individuals, earned the right to vote and should be rewarded for their loyalty and support with the franchise. Proponents also used a natural rights argument—the idea that every citizen has a natural right to vote as an essential characteristic of the country’s republican form of government. Supporters cited one of the United States’ most fundamental founding democratic principles: that the government derived its legitimacy from the consent of the governed.

Opponents contended that blacks were uneducated and unfamiliar with the political process. While conceding the factual truthfulness of those assertions, black voting advocates saw the ballot as a ‘‘great educator’’ and the right to vote as an incentive for self-improvement, education, and the development of political savvy.

In addition to the individualistic arguments, supporters also urged that the right to vote was necessary to ensure blacks’ collective right to self-defense. Profranchise Congressmen argued that extending voting rights to blacks translated into the power blacks would need to deflect the racially discriminatory legislative measures supported by some white southerners. At the time, the voice of blacks in the ballot box served as the strongest—and maybe even the only— means of opposition to white hegemony. Fifteenth Amendment advocates argued that if government didn’t empower blacks with the right to vote to facilitate self-protection, then the federal government would have to permanently assume the duty to protect blacks as a group for the indefinite future. All of these kinds of justifications assume, of course, that giving blacks the right to vote would result in the exercise of group political power.

Indeed, the Republicans, the party of Lincoln, well appreciated that they stood to benefit politically from extending the franchise to black Americans as a group. New black voters were expected to vote dependably Republican. Their votes could help Republicans suppress the dormant seeds of dissension and treason that threatened to sprout if the leaders of the Confederacy retained economic and political power.

Also, both proponents and opponents of black suffrage assumed black voters would support black candidates for office, although each group had distinct reactions to this possibility. Although motivated by partisan politics, these arguments also rely for their premise on the group-based aspect of voting and assume that giving blacks the right to vote would result in blacks exerting collective political power.

In fact, some Democrats who opposed extending the franchise to blacks explicitly relied on the groupbased aspect of voting. These opponents argued that the very problem of political participation by blacks was their aggregate power rather than the individual participation of black persons. Even some Republicans who supported suffrage for blacks expressed concern about the possibility that blacks would inevitably demand, and be able to implement with their voting clout, complete equality with whites.

All these arguments in support of the Fifteenth Amendment that relied on the group dimension of voting—the recognition of racial voting patterns, the idea that black voters had a distinct voice that deserved to be heard, and the role of blacks voting as a racial bloc—do not deny the individual nature of voting rights. These group-based rationales supplement, rather than supplant, the more individualistic aspects of voting commonly associated with suffrage.

The Nineteenth Amendment

The women’s suffrage movement, which started before the Civil War, culminated in the ratification of the Nineteenth Amendment in 1920. As with the Fifteenth Amendment, this movement for voting rights relied on arguments including natural rights and individual liberty, equal justice, and the nonfungibility of men and women.

Women started with the same rationales their male counterparts used when they stood up to the English rules and demanded political recognition in 1776. Originally, suffragists argued women were created equal to men and therefore had the same inalienable right to political liberty. This line of argument emphasized the ways men and women were identical. Supporters focused on men and women’s common humanity as the core of the argument for women’s suffrage.

It didn’t take long for suffragists to add another weapon to their arsenal—group-based arguments joined the natural rights rationale at the end of the nineteenth century. Suffragists argued that women constituted a distinct voting bloc from men; that women had a unique voice, distinct priorities, and perspectives; and that women needed the right to vote to express these views. Supporters demanded political power for women because of the way the woman’s voice would influence government’s actions for the better.

History offers several theories to explain the eventual shift from an individualistic, inalienable rights approach to the emphasis of group rights and political power. First, arguments suggesting inherent equality and similarity of all people became less effective as America experienced an influx of immigrants and growing heterogeneity.

Second, women began participating in the American economy in unprecedented numbers, and female workers were faced with dreary working conditions, questionable safety standards, and meager wages. Suffragists believed that stressing these unique policy problems facing women was the only way for women to combat these new realities.

Finally, the Progressive era was dawning and reform was in the air. Giving women the right to vote fit seamlessly with the goals of progressives: promoting equality, improving education, and making government more efficient and accountable. Ultimately, suffragists crafted arguments out of the same political amalgam used for expanding the franchise to unpropertied men 150 years earlier: a mixture of natural, individual, and dignitary rights that should be afforded to all citizens and adding a new collective voice as an instrumentally beneficial supplement to the existing order.

In particular, supporters of women’s suffrage contended that female voters would add humanitarian sensibilities and heightened moral awareness to politics. Women would probably fight earnestly to protect women’s interests in the workplaces, promote the welfare of children, and help achieve a proper legal status for women in the family. In the end, suffragists emphasized the social and economic differences between men and women to justify a move toward inclusion.

The humanitarian interests and moral sensitivity of women was featured prominently in the idea that women were a distinct group with a unique political vision. Pro-suffrage legislators repeated the refrain of women’s moral superiority over men. Representatives whose states allowed women to vote attributed recent political innovations in their jurisdictions to the extension of the franchise to women. The president himself admitted the country needed the influence of women to solve the problems present at the end of World War I.

Although these arguments envisioned an expanded political role for women, supporters of women’s suffrage did not challenge traditional domestic gender-based roles, specifically a woman’s role as homemaker. Indeed, the homemaker argument— that women needed the vote to fulfill their designated role as guardians of the home—was easily incorporated into the idea that men and women had different strengths and thus both needed to be heard at the ballot box.

If society accepted this argument, it was an easy leap to the idea that women also served as the primary caregivers to children. It wasn’t that men lacked compassion or care for children, but they lacked the personal knowledge and political will to ensure the welfare of children. Legislators cited women’s disproportionate support for child labor laws, interest in education and literacy, and special concern for issues surrounding education and literacy, as reasons for why their group voice needed to be heard.

As with blacks, women’s suffrage was premised as well on the idea of group self-defense. Because they were a disadvantaged class, women needed the ballot to protect their own interests. This included the poor working conditions and low wages that afflicted many female workers. Reformers pointed to movements by women in New Zealand and Australia as empirical proof that women could enact change if given the chance at the ballot box.

Both opponents and proponents of women’s suffrage recognized that trumpeting the idea that men and women were entirely fungible would weaken the arguments that women needed to and would, in fact, act as a group or that society as a whole would gain anything as a consequence of woman’s suffrage. Opponents of the movement thus tried to invoke the original fungibility argument against suffragists, who responded by insisting that women had fundamentally different points of view, natures, and experiences.

Similar to the rationales found in support of black suffrage, these arguments shared a common theme: the voice of women would not be heard without the power of the ballot to back it up. Again, then, groupbased arguments reinforced the individualistic arguments for women’s suffrage, and even occasionally stole the spotlight.

Judicial Review of Voting and Electoral Regulations

The judicial decisions in political rights cases across a range of disputes usually emphasize, and sometimes acknowledge only, one or the other aspect of voting rights. That is, often each case is styled as involving only the individual rights or the group dimension of voting. Less commonly, a court may grapple with both dimensions in a single decision. Rarer still are decisions that offer a coherent explanation of how both aspects fit together in the context of answering constitutional questions. The judicial failure to be comprehensive and completely honest about the true complex nature of political rights results in an ambiguity in the case law.

Even rulings that seem to rest exclusively on individualistic grounds betray the importance of the group dimension. Take two seminal reapportionment cases, Baker v. Carr and Reynolds v. Sims, which, in fact, reveal the essential duality of voting rights even as they appear to focus solely on individual interests.

Baker and Sims both strongly uphold the notion of ‘‘one person, one vote’’ as an idea that emphasizes the individual right to be treated respectfully. At the same time, however, the Supreme Court also had on its mind how gerrymandering skewed legislative policy— concerns that focused on the impact of groups on legislative behavior. In these cases, both arguments happen to cut in favor the plaintiff. As a consequence, the tension between individuals and groups lurked in the background of these cases but was not acknowledged.

Sometimes, however, the individualistic and group dimensions of voting rights cut in opposite directions. For example, the so-called ballot access cases decided in the end of the twentieth century reflect a more complicated tension between the individual component of voting rights and its group-based counterpart. The tension exists because an individual candidate wants to use the ballot as his platform, and the individual voter wants a broad field of candidates to choose from, on the one hand, and groups of voters, on the other hand, want to make sure the ballot is not too complex or fragmented to serve as a method for aggregating sentiment and fashioning policy.

In their decisions, courts have recognized some need to respect the rights of the individual voter, as well as the candidate who may lack broad public support. Prohibiting access to the ballot to a less popular candidate may amount to a statement that his views and concerns aren’t worthy of respect. But the courts have also viewed the problem through the group lens, recognizing that political parties and other blocs view the ballot as a means to an instrumental end and not just a platform for expression. Limiting ballot access to candidates with some fair prospect of winning the election—which courts have said legislatures may do—makes sense only if one agrees that voting allocates political power to groups and not just to individuals.

Faced with competing perspectives, the Supreme Court has tended to prioritize the group dimension of voting rights in this line of cases. So, for example, the Court has upheld restrictions prohibiting minor candidates from cluttering up the ballot, including state refusals to count write-in votes and prohibitions against independent candidates affiliated with a political party during the year before a primary election.

However, not all restrictions have survived judicial review. The Court has struck down restrictions that impair the group dimension of political rights, including laws requiring an early filing deadline for independent candidates. The Court has also struck down substantial filing fees on the basis of the rationale that the requirement particularly disadvantages groups defined by economic class.

The central dispute in so-called vote dilution cases is not the right to vote, to have that vote counted, or to have an individual vote given the same nominal weight as all other ballots cast. Instead, the contention is that members of some racial groups are not able to elect representatives as easily as members of the racial majority. Vote dilution cases affect individuals only with respect to their membership of a particular group. Indeed, vote dilution cases would not exist without the recognition that racial minority groups constitute politically cohesive groups. But this recognition—which drives the vote dilution case law—seems to have been ignored altogether in the so-called racial redistricting cases like Shaw and Miller referred to near the outset of this entry.


An understanding of political rights that is broad enough to encompass both the individual and group nature of political equality stands in sharp contrast to the Court’s tendency to offer a one-sided perspective. Constitutional doctrine that recognizes the hybrid nature of political rights more authentically reflects the political reality of the present, as well as the past. Groups, and the importance of group identity to the exercise of political rights, are a part of the American story. Just as there is something missing when the distinct voices of racial and gender groups are not included in our legislatures and juries, our constitutional discourse is incomplete and distorted when group interests are ignored.


References and Further Reading

  • Equal Protection, Unequal Political Burdens, and the CCRI, Hastings Constitutional Law Quarterly 23 (1996): 1019 (with E. Caminker) (symposium Issue on Proposition 209).
  • The Hybrid Nature of Political Rights, Stanford Law Review 50 (1998): 915 (with A. Brownstein).
  • Jury Service as Political Participation Akin to Voting, Cornell Law Review 80 (1995): 203.