The First Amendment freedoms of press, speech, petition and assembly are all designed to encourage citizen participation in democracy and hold government officials accountable. Yet the First Amendment never cites the right to vote, the ultimate check on government corruption and incompetence.
Voting is instead a process managed primarily by 50 different state legislatures. If the system fails, democracy itself is undermined. Since the First Amendment protects the exercise of political speech and the right of citizens to petition the government, First Amendment disputes frame many of the battles over voting rights that end up in the courts.
The voting systems that have evolved over decades encompass registration requirements, determination of voter eligibility, how ballots are worded and distributed, access to polling places and the vote-counting processes. These systems aren’t supposed to skew or change based on where you live, your race, your income or other demographic and geographic factors. At the same time, the process should have strong safeguards against fraud, corruption and partisan manipulation at every step from initial registration through certification of results.
While most Americans likely would agree with those fundamental notions, few political disputes are more volatile and controversial than those involving voting.
The reason is simple: Since the earliest days of the republic, politicians have known that their success in getting elected has everything to do with which citizens vote and in what numbers. It’s also in their interests if fewer of their foes’ supporters show up.
While manipulating the system to benefit a particular candidate, ballot issue or political party might not be good for democracy, the political advantages are so obvious that legislators often try to adjust laws related to voting procedures. Some changes improve security and access. Others are little more than partisan smokescreens to gain an edge over one’s opponents or the opposing political party.
Irregularities and disputes are nothing new
The U.S. system of official, secret ballots has been in place since the 1880s. Before that, voting was often done verbally or on ballots produced by each political party. Voter fraud happened a lot. One method was “cooping” where gangs would kidnap people and force them to drink alcohol until they were drunk enough to vote multiple times. Another method was the use of “repeaters,” men who voted early and often, sometimes in disguise. One example of fraud was in 1888 when Indiana Republicans distributed ballots to men in blocks of five and paid them to cast illegal votes. These abuses and others led many states to adopt the Australian ballot system, which used official ballots and allowed votes to be cast in secret.
Despite the improvement, voting irregularities also have occurred in the 20th century. Historians have documented how likely fraudulent votes in South Texas for Lyndon B. Johnson gave him a razor-thin 87-vote victory in the 1948 Democratic primary for U.S. Senate, a seat that eventually launched him into the presidency.
In presidential politics, the most famous fraud allegations involve the election of Andrew Jackson in 1824, John F. Kennedy in 1960 and Joe Biden in 2020.
Some believe that Kennedy became president in large part because Chicago Mayor Richard Daley waited to see the Republican margins from downstate Illinois so that he could manipulate the results from Democratic Chicago to give Illinois to JFK. Such claims have never been proven despite extensive investigations, though voting manipulations weren’t uncommon by the political machine in Chicago or in other big cities and rural counties.
Most recently, Donald Trump claimed he lost his 2020 reelection bid due to widespread fraud by Biden supporters and allies, including manipulation of voting machines. The allegations have been widely and thoroughly discredited. But reporting by the news media helped spread suspicions. In April 2023, Dominion Voting Systems and Fox News settled a massive defamation case with Fox paying Dominion more than $787 million over claims that Fox defamed Dominion by airing false claims that their voting machines were adjusted to help Biden. Fox defended itself based on First Amendment claims that it was merely reporting and commenting on the assertions of Trump and his supporters.
Constitution gives wide latitude to states to make rules
Casting a vote has become harder or easier, often with wide variances among states. The U.S. Constitution grants broad powers to the states, via state legislatures, to regulate voting and elections. Article 1, Section 4, of the Constitution states that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof.”
This deferral of election procedures has allowed each state to consider its own circumstances and conditions when designing the criteria for voting. Amendments to the U.S. Constitution have, however, limited discrimination in voting based on race (15th Amendment, 1870); sex (19th Amendment, 1920); and payment of a poll tax (24th Amendment, 1964). The 26th Amendment lowered the age for voting from 21 to 18.
Disputes have heightened in recent years
In recent decades, some states have sought to broaden citizen participation by making voting easier through same-day registration, mail-in voting, early voting periods and expansion of absentee ballot. However, in other states, the pendulum has more recently swung in favor of tightening restrictions around voter registration drives and photo identification requirements and shortening voting hours with fewer locations for early voting and ballot drop-offs.
Supporters say this recent wave of recent restrictions is needed to combat voter fraud and alleged efforts to alter election outcomes through technological means. Evidence of voter fraud is rare but the U.S. Supreme Court has said that a generalized concern is enough to give state legislatures the power to tighten voting access. In 2021, for example, after Trump’s allegations of voting fraud, 17 state legislatures passed dozens of new laws that tightened voting procedures.
Others argue that fraud, even when it occurs, is so isolated that it doesn’t affect outcomes, and that the motivation for making voting harder are political: to make it harder to vote for those less likely to support Republican candidates, such as minorities, urban residents and college students.
Voting Rights Act of 1965 and other measures protected voter access
A major development expanding voting rights for minorities was the Voting Rights Act of 1965, enacted during a period of extensive change in civil rights laws. “The act ended literacy tests, which prevented many people from registering to vote, in a half-dozen states, granted the attorney general the power to send observers to witness elections, and gave the federal government the authority to preapprove voting and election changes in places with a history of discrimination,” according to a National Public Radio report in 2021.
Other federal laws in the 20th century also expanded voting rights. Voting rights were granted to Native Americans and, following the detention of thousands of Japanese Americans during World War II, to Asian Americans. The 23rd Amendment allowed residents of the District of Columbia to vote in 1961. Poll taxes were banned in 1964. In 1984, voting was made more accessible to disabled people in the Americans with Disabilities Act. The so-called “motor voter act” of 1993 required state motor vehicle departments to offer voter registration opportunities.
Allen v. Milligan reverses recent trend at U.S. Supreme Court
In 2013, the U.S Supreme Court struck down a key provision in the Voting Rights Act that required certain states with a history of discrimination to get federal approval before changing their voting laws. In Shelby County (Alabama) v. Holder, the court said that the decision “in no way affects the permanent, nationwide ban on racial discrimination.” But critics saw it as a weakening that reduced oversight by the U.S. Justice Department.
After that, the Supreme Court issued a series of rulings in election cases that some criticized for rolling back efforts to increase voter participation.
- In Husted v. A. Philip Randolph Institute (2018), the court said states can remove voters from registration rolls if they have not voted recently and have failed to respond to a notice from election officials.
- In Rucho v. Common Cause (2019), the court found that federal courts cannot intervene in partisan gerrymandering cases.
- In Brnovich v. Democratic National Committee (2021), the court upheld two Arizona voting restrictions that lower courts had found disproportionately affected minority voters, again affirming the rights of states to run elections and address concerns about fraud without specific evidence.
In June 2023, the court appeared to part course with some of its previous rulings and upheld part of the Voting Rights Act in a dispute over whether Alabama’s Republican-dominated legislature went too far in reshaping congressional districts.
In Allen v. Milligan, the court said in a 5-4 ruling that the drawing of the districts violated Section 2 of the act, which bars the denial or abridgement of the right to vote based on race. In effect, legislators had made it nearly impossible for blacks to win more than one seat in Alabama’s congressional delegation even though blacks comprised nearly 30% of the state’s population.
Moore v. Harper rejects theory that courts can’t review election laws
Also in June 2023, the U.S. Supreme Court voted 6-3 in Moore v. Harper to reject a legal argument pushed by conservative groups called the “independent state legislature doctrine” that argued the U.S. Constitution gave state legislatures near-unlimited powers to regulate elections. The implication was that in states with veto-proof legislative majorities, legislative district maps and election laws could be altered in almost any way most advantageous to the majority party.
In the Moore case, Republican state legislators in North Carolina sued after the state’s Supreme Court blocked their efforts to adjust the boundaries of the state’s 14 congressional districts. The doctrine, once thought of as a fringe legal theory, is based in part on the U.S. Constitution’s statement that the “times, places and manner” of federal elections “shall be prescribed in each state by the legislature thereof.”
However, the U.S. Supreme Court felt otherwise. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Chief Justice John Roberts wrote of that constitutional provision.
A few weeks later, the U.S. Supreme Court sent back a similar case from Ohio to the Ohio Supreme Court with instructions to the Republican-majority court to reconsider the dispute in light of the Moore decision.
Legal battles polarize state supreme courts
Legal battles, such as the ones in North Carolina and Ohio, over election laws have raised concerns that state supreme courts, particularly in states that elect justices, have become overly politicized versus the traditional goal of judges acting as neutral arbiters and interpreters of laws. (Controversies over abortion and gun control are among other issues fueling this trend.)
For example, in July 2022, Wisconsin’s conservative-controlled Supreme Court ruled that absentee ballot drop boxes could be placed only in election offices and that no one other than the voter can return a ballot in person. Democrats had argued that the decision would make it harder to vote. Less than a year later, in the most expensive and arguably most partisan state supreme court race in American history, Wisconsin voters shifted control of the court back to Democrats.
In October 2022, the Delaware Supreme Court ruled that same-day voter registration and voting by mail were unconstitutional under that state’s constitution. However, other states such as Oregon have for years conducted mail-in voting with scant problems under provisions of the laws in those states.
In North Carolina in April 2023, a change in control of the state’s highest court from a Democratic to Republican majority led to a complete reversal of a decision that legislative maps had been unconstitutionally “gerrymandered” to favor Republican candidates, creating a likely shift of four congressional seats from Democratic to Republican party control.
States implement new voter registration restrictions
Recent state efforts to further regulate the voter registration process also have raised significant freedom of speech questions by opponents.
For example, in May 2023 Florida passed a law to place new restrictions on third-party groups registering voters, including steeper fines for violations and shorter registration periods. Opponents such as the League of Women Voters of Florida, the NAACP and Hispanic Federation filed lawsuits arguing that the restrictions violated First Amendment political speech rights of the voter-registration groups and were targeted at their efforts to register black and Hispanic voters. Supporters said the measure was needed to protect election security and information about voters.
A similar measure in Tennessee faced protracted legal battles to prevent implementation until the legislature rescinded the provisions seven months later. The state continued to fight rulings that it owed more than $700,000 in legal fees to the voting rights groups that fought the legislation, but the U.S. Supreme Court declined to hear the state’s appeal in June 2023.
This article was written in July 2023 by Dennis Hetzel, a freelance journalist and author. Hetzel has been a reporter, executive editor, publisher, journalism teacher, director of the Ohio News Media Association and president of the Ohio Coalition for Open Government.