Democracy Academy, Class 1: Looking for "The Right to Vote" in the Original Constitution

Welcome to Class 1 of my Democracy and Voting Rights Academy!

Sadly, the news this week that Texas has purged a million voters from the rolls and that Nebraska’s AG is pushing to disenfranchise voters who’ve voted for the past 19 years, reminds us that we all need a basic foundation on the laws and history of our democracy and voting rights. (Because so much of the past keeps repeating itself, and do we’re all prepared to fight back).

Perhaps the best place to open a course on voting rights and election law is the Constitution itself. That’s why I like to start by asking my students to scour our Founding document for the words and clauses that involve voting and/or elections, which give us a broader sense about how voting and broader notions of democracy were viewed within the new nation.

As you may have found in doing the reading assignment—especially with a preamble that begins with the phrase “We the People…”—there are surprisingly few clauses that actually address the topic of voting and elections. And for all the discussion of the “right to vote” in America, no such phrase appears in the original Founding document.

The words that do appear show us much about how the Founders conceived of voting, elections and democracy—and about the compromises they made to gain ratification of the Constitution in the first place. And in their vagueness and scarcity, those words open up far more questions to grapple with going forward than they answer. And boy have we grappled with them ever since!

Let’s go through the specifics, shall we?

Voting Qualifications — House Elections

Art. 1, Section 2: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

This clause established two things:

First, the people of the states did have an opportunity to vote for members of the House of Representatives—and that turns out to be their only chance to vote in federal elections at the time. As the original Article 1, Section 3 and Article 2, Section 1 made clear, the people did not at the time vote for either Senators or the President. (That was also true for many/most statewide elections). Those direct elections would only come via later Amendments. For the time, House elections were the sole place where the people weighed in at the federal level.

Second, this clause establishes that it is the states themselves—in setting their own standards for their own legislative elections—that determine who is eligible to vote in those federal House of Representative elections. In other words, there really is no federal right to vote at all. It is determined by each state.

How was this decision to defer to the states reached?

Like everything else in the Constitution, this clause was the result of a compromise. Some wanted a minimum property requirement for voting enshrined into the Constitution itself; others disagreed on principle (Benjamin Franklin was a loud opponent); others worried the Constitution would not be ratified if a property threshold were placed into the Constitution that would disenfranchise voters in certain states.

So the compromise reached was to defer to the states to use the standards they already had in place, or the standards they opted for in the future. Which meant several things:

First, it meant that the wide array of rules already in place in these states determined who could vote in federal House races. And, essentially, this was a blanket approval of all these rules and restrictions. And what were those original rules?

• Reflecting the general view of voting at the time (as an elite “privilege” and not a right), almost all colonies and early states had property qualifications for voting—either a land-owning requirement or a threshold of a certain amount of wealth. Pennsylvania (where voters needn’t own land, but had to pay a poll tax instead—a reform viewed as a revolutionary at the time) and Vermont were exceptions;

• Some states made it explicit that only males could vote (Del., MA, NH, NY, SC, VA)