Possibly one of the most important fights of this new century is being waged right now in the halls of Congress, in state houses across the nation, and with lesser significance on social media. The question is about voter accessibility and who has the right to determine it.
With COVID-19, voter accessibility was expanded and quite possibility responsible for Biden’s victory. The Democrats who benefited from COVID rules want to make those changes permanent on the federal level, while Republicans who suffered want to return to traditional rules through state governments. President Biden weighed in last week, calling Republican attempts a return to Jim Crow.
It is worth taking a look at Jim Crow voting practices, but historically speaking, what seems ironic is during Jim Crow Democrats tried to keep Black Americans from voting booths while today Republicans are trying to force them to have to use them.
First things first. What does the Constitution say about voting practices? According to Article I, Section Four, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” In other words, voting laws are made state by state. The Federal government has passed amendments dealing with who can vote, but not how. Even then, as discussed in an earlier column, the Constitution does not say voting is a right, only that you cannot deny voting based on race, sex, or age. The Constitution does not prohibit states from blocking voters for different reasons.
Gender a good example of this. Before the passage of the 19th Amendment, states could choose for themselves if they wanted to allow women to vote. In fact, starting with Colorado, thirteen states, mostly in the west, gave women the right to vote before the Federal Government forced the rest to catch up.
Because states can decide who votes, they can also decide who does not, as long as the reason is not illegal. So, for Jim Crow, the 14th Amendment stated you could not deny anyone the right to vote based on their race, skin color, or condition of previous servitude (used to be a slave). What southern states did was establish poll taxes or education tests as requirements for voting. Since most Black Americans at the time were poor and uneducated, this legally stopped the vast majority of Blacks from casting a ballot. To be legal, states that wanted to stop Blacks from voting also had to stop poor and uneducated White Americans from voting as well. There is some suggestion that some poor whites were willing to give up some political power to retain white supremacy.
With this in mind, are new proposed voting laws in Republican states the same as Jim Crow laws? Biden clearly thinks so. It seems like at the heart of all the laws are two things: mail-in voting and voter IDs. On the surface, these new state laws are saying that in-person voting with an ID is the only way to stop voter fraud. Below the surface, however, they are saying that mail-in voting is allowing Democrats to go door-to-door to collect ballots from those who traditionally do not vote. Democrats are arguing that Republicans are trying to restrict voters, especially Black voters, by making them show up in person. This assertion is that it is harder for the poor to make it to voting stations and afford IDs, while Republicans claim voting is the only official activity allowed without an ID.
Is it like Jim Crow? Yes and no. Republicans are not trying to pass new laws per se. They are trying to retain the laws from before COVID. It is actually Democrats trying to change or keep new election laws. But yes, it is true, Republican laws will limit participation. However, the laws are really just a screen for the real issue that needs to be addressed. Should all people be allowed to vote? This is a difficult question because our instinct in a democracy is to say yes, but we also get the question confused with should all people have the opportunity to vote? Those are different questions.
The Founding Fathers did not find the question difficult. They believed that all people should have the opportunity to vote but that did not mean that all people should be able to. The Founders limited voting only to men who had a stake in society. This was shown by owning property or controlling their own means of survival. If you worked for someone else, then you were not truly free and so did not have voting rights. Property requirements did not deny citizens the opportunity to vote. It was seen and even hoped that all Americans could become property holders and hence vote, but it took some effort on the part of the person.
One other requirement we see across all thirteen states was that the men had to show up. They had to. Most early voting was done by voice. Early in the 19th Century, voters would turn in a piece of paper with their vote, but even then, the votes were published. At the time, it was believed voters should openly support who they voted for. Even though transportation was more difficult in early America than today and they had a functioning postal service, part of a stake in society was the expectation of showing up.
No person who wants to vote should be denied the privilege to do so. Extending voting days to up to a week should guarantee access, yet the process, at least according to the Founders, should be done in person as intended. Thomas Paine once said, “What we obtain too cheap, we esteem too lightly.” Voting should not be easy. It should be important. As a bare minimum, voters should at least show up. As for Jim Crow, there are some similarities, but there are those who risked their lives in the 1950s and 1960s for the opportunity to vote in person. Let’s be careful not to compare them to those who want to be able to sit at home and mail in their ballot instead of having wait in line.
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.