Going to bed on election night it looked as if President Trump might win the election. But as the mail-in votes started being counted the next day, Trump’s lead slipped away in many important swing states. With mail-in voting and early voting occurring because of COVID-19, there have been many discussions about voting rights. Some say voting is a right and measures need to be made to guarantee everyone has the right to vote, whereas others say more measures are needed to protect the integrity of the vote. Both sides have made strong arguments and each person needs to weigh out these arguments personally. While I am in no way saying we should restrict voting, historically speaking, voting was never intended to be a right.
As always, let’s start with the Constitution. Surprisingly to most, the founding document is practically silent about voting. There are only two sections that address voting and they both do so sparsely. Article I, Sec. II states, “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.” The first part is simple enough, but the second section is more confusing. It says the people of each state would choose their Representatives every two years. However, it does not say how or who they mean by the “people.” That’s what the second lines address. Basically, it means whoever is allowed to vote in state elections can vote in the federal election. In other words, voting is a state issue and voting can differ state by state.
The second clause in the Constitution, Article II, Sec. I, that deals with electing the president states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Again, voting is left to the individual states. States were allowed to put as many or as few restrictions as they chose on voters. States could restrict voters based on age, race, sex, property, or variety of other reasons. We often think of the Constitution’s quietness on voting as allowing restrictions, which it usually did, but it also allowed some western states the freedom to grant women suffrage years before the 19th Amendment did so nationally.
Eventually the Constitution changed through the amendment process and some of the most significant edits dealt with voting. The 14th Amendment defined everyone born in the U.S. as citizens and declared no state may “abridge the privileges or immunities of citizens.” Yet it did not state what those privileges were. Future court cases did spell out these rights and voting was not one of them. The 15th Amendment states, “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.” Under this Amendment, states could still deny the vote to anyone as long as it was not for those specific reasons. It also does not say that states must guarantee everyone the right to vote, but only not deny for those specific reasons.
The last Amendments dealing with voting are similar to the 15th. The 19th makes it illegal to deny women the vote, the 24th makes it illegal to deny the vote for not paying a poll tax, and finally the 26th makes it illegal to deny the vote to anyone over the age of 18. All these cases are about restrictions; there is nothing about guaranteeing all Americans the right to vote. In fact, in 2013 the Supreme Court upheld in Shelby County v. Holder that voting was actually not a right.
When the Founders wrote the Constitution, the lack of voting as a right was not an oversight. The Founders were elitists, but they also believed only those who had a stake in society should be given the vote. In their minds, stakeholders were the only ones who had enough on the line to take voting seriously. If applying what the Founders believed to today, then only those who put in the effort of learning the issues and weighing out the options should vote, not those who simply vote for popularity or for who gives the best speech or makes the best promises. The mail system worked fine in 1789, but they chose to have voters show up to the polls. You had to put in some effort to vote.
This does not mean that today we need to follow suit or that I think we should restrict voting. It does just mean that over the next four years, as debates rage about voting rights, if you reference the Founders or the Constitution, you should do so wisely. A lot has changed since the Constitution was written; we now vote for our Senators. But, historically speaking, there is nothing in our Constitution, including the Amendments, that state voting is a right or that the Government must make sure all people’s voices are heard.
Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. To receive daily historical posts, follow Historically Speaking at Historicallyspeaking.blog or on Facebook.