The Vote Counts

It's a lead-pipe cinch that this year's election reform panels, hearings, briefs, and reports will feature many attempts to summarize neatly the American experience with voting rights. Most of these sketches are likely to be wrong. If you read The Right to Vote, you will know why.




The standard history of voting in America goes something like this: The right to vote came early to all white adult males, about 30 years after the founding of the nation. In contrast to Europe, where it took socialist political parties to win the franchise for propertyless wage earners, American workers needed no socialist movements or parties. To be sure, African Americans, women, Hispanics, Asians, and Native Americans had to fight for suffrage. But they did so under the banner of liberal principles. Eventually they were folded into a roaring electoral democracy that had precociously institutionalized the right to vote. In sum, the system became politically democratic early and then suffrage gradually expanded.



This standard story has grown deep intellectual and cultural roots. One reason is that until now no one has ever studied the entire matter closely. Impossible, it would seem, but true. Alexander Keyssar, a professor of history and public policy at Duke University, has written the first comprehensive, blue-chip, scholarly study of the full history of voting in the United States. Its publication is an intellectual-historical event of some magnitude.



Keyssar's book uses a wide range of primary and secondary sources as it travels from the colonial period to the present. A good and lively read, it is filled with the voices, ideas, and actions of a cast of deeply thoughtful, passionate, and argumentative people. As someone who studies voting rights and history, I can attest that, with one quite minor exception, it appears that every single date, name, and legal citation is given accurately--a rate of production error that would put even Japanese auto manufacturers to shame. Little is left out, and that mostly has to do with African Americans and Hispanics in the Southwest and with redistricting law under the 1965 Voting Rights Act. The text and its tabu-lar appendixes are a major scholarly resource. Keyssar's book should become a standard reference for election-law professors and practitioners--which, as everyone now knows, is a respectable and fairly well populated occupational niche.



Though Keyssar never announces a grand theory or thesis, preferring to let his tale capture the reader's attention, the underlying analytical framework is clear enough. He nicely traces a fierce dialectic of two competing ideas that recur in one form or another in U.S. suffrage politics from the beginning to the present. One idea might be called Blackstone's Thesis. As expressed by Sir William Blackstone in the Commentaries on the Laws of England (from the late 1760s), the idea is, "The true reason of requiring any qualification ... in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own." Every democratic society, in other words, contains a mass of people below a certain level of education or property ownership. Such a populace might be goaded someday by a talented demagogue into an assault on established freedoms. Suffrage restrictions are therefore prudential matters of good government.



Thus in the 1930s there was a sizable movement to disenfranchise recipients of public relief because they were supposedly putty in the hands of America's would-be dictator, Franklin Delano Roosevelt. This notion has never really died. Even today well-meaning upper-middle-class college students will voice apprehensions over letting welfare recipients vote.



The opposing view comes from two directions. One claim holds that a truly prudential approach to preserving ordered freedom requires universal suffrage because it is educative and gives have-nots a stake in their system. A second approach is that suffrage ought never to be seen as a matter of policy; it is instead a human right.



Such a stance was well articulated by Senator Henry Wilson, a Massachusetts Republican who played a vital role in drafting the 15th Amendment to the Constitution, which was adopted in 1870 and decreed that the right to vote could not be denied on the basis of race, color, or "previous condition of servitude." Wilson was a passionate political egalitarian and a fervent Protestant who believed that substantive political equality--and hence the Civil War, the Emancipation, and Reconstruction--came from God's will working in human history. Keyssar misses the religious dimension of Wilson's thought, but it was the foundation of the senator's view that no fallible human body of legislators could settle the right to vote on the basis of such meaningless indicators as skin color, formal education, or property. The right to vote was instead a natural right, nothing else, and therefore a command and a necessity. Any sentient and sane adult understood his or her interests well enough to vote.



These deep tensions in American political thought play themselves out in Keyssar's account across constitutional time and, simultaneously, across social-historical time. Generally, the social-historical timeline boils down to a disconcerting series of legislative and judicial sanctions involving class, gender, racial, ethnic, and religious bigotries--all disguised by the often creative and sometimes shocking assertions of the Blackstone Thesis that certain persons can be thought "to have no will of their own." Good-government reformers teamed up with party politicians looking for temporary advantages, or with wealthy interests (particularly in the South), or with reactionary social movements, and together they sold the Blackstone Thesis over and over with enough fervor to generate many waves of suffrage restrictions in different places and times.



On the constitutional timeline, there were four decisive moments. The first was the founding. The Constitution's framers deliberately avoided mentioning the right to vote in order to ensure ratification. With a silent Constitution, all manner of restrictions were put into state and local law even as the party system developed a mass base before the Civil War. Free blacks were disenfranchised in all but four states by the 1850s, and propertied women were excluded as well. In Rhode Island, there were covert restrictions on the landless and on Catholics, many of whom were immigrants.



The second moment was Reconstruction, when the 14th and 15th Amendments inscribed the words "the right to vote" and "the right of citizens of the United States to vote" into the Constitution for the first time. But these were incomplete inscriptions. Despite initial success, Henry Wilson's robust version of the 15th Amendment eventually failed. It had stipulated that no suffrage restrictions could apply "among the citizens of the United States in the exercise of the elective franchise or in the right to hold office in any State on account of race, color, nativity, property, education or creed." It failed not because congressional Republicans were insincere but because Wilson's version was packaged with a proposal to abolish the electoral college. At the time, Wilson warned (correctly, as it turned out) that the more vague 15th Amendment language now in the Constitution would eventually facilitate the disenfranchisement of African Americans.



The third constitutional moment featured that outcome: African-American disenfranchisement at the end of the 1800s in the ex-Confederacy, an area then home to more than four-fifths of America's black citizens. As Columbia University legal scholar Benno Schmidt has said, "The disfranchisement of black people for more than half a century, despite the command of the fifteenth amendment, is one of history's most formidable challenges to the efficacy and integrity of the concept of constitutional law." Paradoxically--and here Keyssar wisely presents this perplexing puzzle rather than resolves it--female suffrage came to America even as whites pushed the vast majority of blacks out of the electorate.



We live today in the fourth constitutional moment, when much of the 15th Amendment's promise has been finally realized. Keyssar succinctly details this democratic renaissance, showing how the courts, in particular, have used the 15th Amendment, via the Voting Rights Act and other related statutes, as a battering ram against all the restrictive vestiges that piled up over 100 years. These include residency requirements, property tests, poll taxes, inadequate means of registration and balloting, confusing ballot design (still progress to be made here), and literacy, language, and education tests.


In the end, then, Keyssar neatly inverts the standard version of voting history. The right to vote did not come early here; the framers did not proclaim it. On the contrary, full universal suffrage is a recent achievement in America. Even so, Keyssar shows, festering problems remain that are legacies of our suspicious Blackstonian past. The most important of current restrictions is felony disenfranchisement. Thanks to the approximate tripling of incarceration rates in the last 20 years, this has had a devastating effect on African-American men and other minorities. In addition, the post-1965 wave of immigration has generated a huge increase in the number of legal, nonvoting resident aliens--a population equal to more than 10 percent of the total presidential electorate in 2000.



Recent events make it obvious that a third issue has emerged: weak governmental capacities for registering voter preferences accurately. The Al Gore campaign's semi-articulate statements about the "right to vote" carry an important truth. To be sure, James Baker and Karen Hughes of the Bush campaign are correct to say that every election count has innocuous error. But creaky election systems are, in fact, sneakily disenfranchising. This, after all, is why George W. Bush as governor signed into law a manual-recount provision some years ago in Texas. Don't count on him or Florida Secretary of State Katherine Harris to read this book. But with any luck, the next meeting of the National Association of Secretaries of State will feature a panel or two on the richly historical and acutely relevant perspective that this book provides on the current debacle. ¤

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