Although the Constitution’s preamble begins with “we the people,” it would have been more accurate to say “we some people.” Over the last 200 years, only some people’s voices have consistently mattered — those of white, property-owning men. As a result of recent news regarding gerrymandering in states such as North Carolina and Louisiana and threats to voting rights by states across the country, I believe it is time to take a look to the past. Despite the Supreme Court’s blockade, Congress has historically entrenched voting rights in the American consciousness.
After the Civil War, Republicans wanted to enshrine Black rights into law. After the exploitation of the 13th Amendment’s loophole to continue the use of slavery, Republicans looked for a stronger antidote: the 14th Amendment. This lengthy amendment bolstered Black rights generally, but voting rights can be read into this language. By saying that “all persons born or naturalized… are citizens,” Black people were included as citizens, overruling the Scott v. Sanford that denied a freedman citizenship. Wanting to make this even more powerful, the Republicans passed the 15th Amendment, which explicitly put voting language into the constitution, affirming that Black citizens have the right to vote with the broader language about citizenship and citizenship rights, in addition to explicit voting language.
However, The Supreme Court continued to chip away at these rights and block further progress. United States v. Cruikshank argued the 14th Amendment only prohibited encroachment on rights by the state, not by individuals. By not applying these rights, they gave individuals and hate groups like the KKK permission to engage in voter intimidation and other harmful practices because they could not be convicted for these crimes under the 14th Amendment. In addition, the Court ruled that the 15th Amendment only protects from discrimination and that suffrage is not a guaranteed right. In Minor v. Happersett, the Court also argued that sex was not included in citizenship and “in this respect, men have never had an advantage over women. The same laws precisely apply to both.” It is ironic for an all-male Supreme Court to tell a woman, who is unable to vote, that she has equal rights. Again, it took Congress’ intervention to give women the right to vote. Minor v. Happersett was decided in 1874; it was not until forty years later that women obtained the right to vote through the 19th Amendment.
After continued pushback from the Civil Rights movement, Congress intervened during the 1960s to entrench voting rights. The Voting Rights Act created a formula to identify and protect those most vulnerable to voter discrimination and gave the Attorney General the power to challenge any race-based voting discrimination in court. This law created multiple pathways to ensure that voting discrimination did not happen. This act was reauthorized every 25 years, including in 2006, when the vote was near-unanimous in the House and unanimous in the Senate.
The Supreme Court yet again chipped away at voting rights after striking down portions of the Voting Rights Act in Shelby County v. Holder. In a 5-4 decision, the Court agreed with the challengers, saying that the bill violated the “fundamental principle of equal sovereignty.” While state rights and equal treatment of the states are important, this should not supersede the most fundamental right to vote. By giving in to them, the Court upheld discrimination, just like in Cruikshank; just as the KKK was allowed free reign, the Court is giving the same power to the states. Roberts even acknowledges that “voting discrimination still exists; no one doubts that.” Thus, the Court is making a clear decision to prioritize states over citizens while discrimination continues to happen.
Since the Court’s decision, voting rights violations continue to amass. For example, in just 2021, at least 19 states passed 34 laws restricting access to voting, and at least 152 restrictive bills in 18 states will carry over into the 2022 legislative sessions. The fact that 38% of the country has passed voter restrictions in 2021 is absurd and shows the real consequences of the Court’s decision. There was — and still is — a need for the Voting Rights Act, and yet the Court refused to help.
Congress, the usual stalwart of voting rights, has blocked both the John Lewis Voting Rights Act and the Freedom to Vote Act. These actions would restore the portions of the Voting Rights Act that the Supreme Court struck down and expand voter registration and accessibility by providing same-day registration, more early voting, declaring Election Day as a federal holiday and more protections against voter intimidation, among others. However, Congress still has time to reverse course. The Civil War ended in 1865, yet it took a whole year for Congress to pass the 14th Amendment and three more years to ratify it. The 19th Amendment did not come until 40 years after the Minor v. Happersett decision. While it is true that an amendment is harder to pass than a bill, given the current political system, trying to get anything passed is a Herculean effort. While it is an uphill battle, Congress is the only real remedy available and still can create change.
Lauren Sherman is a senior in the College of Arts and Sciences. She is currently the Vice President of External Operations of Cornell Votes. She can be reached at [email protected].
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