As we all know, the right to vote was not established in the U.S. Constitution when ratified in 1787. Indeed most states sharply restricted the franchise, typically to white men who owned property and had lived in a state for several years. As detailed superbly in Alexanders Keyssar’s The Right to Vote, a growing number of Americans have gained the right to vote in the years since, although with disturbing roadblacks and backsliding along the way. While today, most U.S. citizens are able to vote on Election Day, although the legacy of it being seen as a privilege is reflected in more than five million citizens losing voting rights due to felony convictions and the the fact of it being primarily a state right is reflected in the millions of citizens of the U.S. territories and District of Columbia having no, or sharply restricted voting rights.
 
One of the clearest examples of who the U.S. Constitution in itself provides insufficient protections of the right to vote is the fact that it took the 24th Amendment of the Constitution in 1964 to end the poll tax. To many of us, the poll tax is a old vestige of Reconstruction, long since forgotten. Yet, this voting prerequisite was not blocked until ratification of the 24th Amendment in 1964.  In order words, when John Kennedy was elected president fewer than 45 years ago, millions of Americans, most poor Africans Americans in the South could still be asked to pay money in order to cast ballot. It’s all part of how the right to vote is protected primarily at the state level, with more than 13,000 jurisdictions making key decisions about elections, all separate and unequal.


Leading up to Jim Crow

In the aftermath of the Civil War, Congress passed the Civil Rights Act of 1866, quickly followed by the ratifications of the 14th amendment in 1868 to provide citizenship to African Americans andin 1870 the 15th Amendment which prohibited states from denying African Americans the right to vote. These changes led to immediate addition of four million former slaves and disenfranchised African American to voting rolls seemingly overnight.  As a result, between 1870 and 1900, 22 African Americans would serve in the U.S. Congress, two in the U.S. Senate and many in state and local office. In fact, at one point blacks outnumbered whites in the South Carolina legislature 87 to 40.

However, this honeymoon of suffrage and political influence would be short lived. Even as Congress passed the Ku Klux Klan Act in 1871, which, was an attempt to force the South to their practices of preventing black suffrage, it became quite clear that the ability to vote and the right to vote had entirely different meanings to the South and also the U.S. Supreme Court.

As early as 1876, the Supreme Court interpreted the 15th amendment not to mean that African Americans had an inherent right to vote, "the right of suffrage is not a necessary attribute of national citizenship" U.S. v. Cruks. . . 92 U.S. 542 (1876). The era of post reconstruction had begun. This period was marked a return to black political disempowerment and disenfranchisement. By drawing the distinction of an “attribute of national citizenship” the Supreme Court had found that the right to vote was a still a states right. This subtle distinction was the basis for many of the Jim Crow laws and other discriminatory practices states used to prevent African Americans from voting.

By 1890, Mississippi had inaugurated the first of the constitutional conventions, which would sweep the South and begin the systematic exclusion of African Americans from the political arena. In the updated constitutions, state legislatures codified voting requirements such as a poll tax.

The poll tax, was written into state constitutions to stymie the growth of African American political power. Between 1889 and 1910, eleven states all concentrated in the South adopted a poll tax. Targeted to disenfranchise black Americans, at a cost of approximately $1.50, many poor white farmers and laborers were unable to pay poll taxes either. To make it even harder for those unable to pay to vote in the future, the poll tax was made cumulative.  So that if a person failed to pay the tax in one year, it would be added to the tax the following year.  It is not surprising that many chose not to vote at all.

The poll tax, coupled with many other racially discriminatory laws, which came to be known as Jim Crow laws, succeeded. By the turnout of the century, only a handful of African Americans remained in elected office. African Americans were not take national office again until the Civil Rights Movement and the subsequent passage of the Voting Rights Act of 1965.


The 24th Amendment

In fact, it was not until 1939 that Congress even discussed abolishing the poll tax.  Finally, in 1962 more than 70 years since the first racially motivated poll tax was implemented that enough citizens in enough states were ready to stop this practice. This amendment was proposed by the Eighty-seventh Congress in Joint Resolution No. 29, which was approved by the Senate on Mar. 27, 1962, 77-15, and by the House of Representatives on Aug. 27, 1962. By this time only five states still used poll taxes to restrict who was eligible to vote: Texas, Mississippi, Arkansas, Virginia and Alabama. Then when South Dakota became the 38th state to pass the amendment, 512 days later on January 23, 1964, the bill was ratified as the 24th Amendment to the U.S. Constitution. While Virginia and North Carolina subsequently ratified the amendment, some states like Texas, Mississippi and Alabama have yet to do so.

What is striking about the poll tax and other Jim Crow laws, is that individual states were even able to pass these laws in the first place without violating the 14th or 15th Amendments. Quite interestingly, in 1937, the Supreme Court heard a challenge to the $1 poll tax in the state of Georgia. However, in the case, Breedlove v. Suttles… 302 US 277 (1937) the Court upheld the tax as Constitutional. The Court ruled that the payment of a poll tax “is familiar and reasonable regulated long enforced in many States and for more than a century in Georgia”. The “privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate.”

Simply put, the Supreme Court ruled that voting policies and procedures are regulated by each state. Therefore, policies such as poll taxes or other laws designed exclusively to discriminate against certain voters or restrict the franchise are within the purview of the state. The only restriction is that race or sex not be the mitigating factor.

For this reason, the abolishment of the poll tax, did not come from a court case or congressional legislation but from an amendment to the U.S. Constitution. In this light, what would it take to end ex-felon voter disenfranchisement? What would it take to ensure that all votes are counted on machines that will correctly count each and every ballot? What would it take to guarantee that secretaries of state cannot arbitrarily set voting policies and procedures?

The bottom line is our right to vote does not presently have the protection or security it deserves. While the poll taxes, discrimination against women, and minorities have been deemed unconstitutional, little else in the voting process garnishes the powerful protection of the U.S. Constitution. To fix the problems that emerged in 2000 and resurfaced in 2004, we must actively seek an amendment to the U.S Constitution to guarantee everyone an affirmative right to vote. Such legislation is critical to ensure a healthy and secure electoral process.