American Democracy: Progress and Relapse

The founding fathers minced no words about their distrust of the masses. Our first President, John Adams warned, "Democracy will soon degenerate into an anarchy..." Our second President, Thomas Jefferson insisted, "Democracy is nothing more than mob rule." Our third President, James Madison, the Father of the Constitution declared, "Democracy is the most vile form of government."

In his argument against the direct election of Senators Connecticut's Roger Sherman advised his colleagues at the Constitutional Convention, "The people should have as little to do as may be about the government. They lack information and are constantly liable to be misled." They agreed. Senators would be elected by state legislatures. And they created the Electoral College to shield the Presidency from a direct vote of the people as well.

In 1776, the year he signed the Declaration of Independence, John Adams presciently wrote a fellow lawyer about the collateral damage that would result from "attempting to alter the qualifications of voters. There will be no end to it. New claims will arise. Women will demand the vote. Lads from 12 to 21 will think their rights not enough attended to, and every man who has not a farthing, will demand an equal voice with any other, in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level."

In 1789 the franchise was restricted to white men, but not all white men. Only those possessing a minimum amount of property or paid taxes could vote. In 1800, just three states permitted white manhood suffrage-the right to vote-- without qualification.

"It is up to an engaged citizenry to honor those who have given their lives over the last century to achieve universal suffrage by protecting and expanding the franchise in the face of concerted attacks by monied power."In 1812, six western states were the first to give all non-property owning white men the franchise. Hard times resulting from the Panic of 1819 led many people to demand an end to property restrictions on voting and officeholding. By 1840 popular agitation by the swelling ranks of propertyless urban dwellers coupled with the "Age of Jacksonian Democracy" increased the percentage of white men eligible to vote to 90 percent. And the advent of a new type of presidential electioneering that spoke directly to the people in raucous proceedings lifted turnout from 25 percent of eligible voters in 1824 to a remarkable 80 percent in 1840.

Women had to wait much longer. A number of colonies did allow women to vote. But by the time the Constitution was ratified all states except New Jersey denied women that right. In 1808 New Jersey made it unanimous.

In 1875 Michigan and Minnesota allowed women the right to vote for school boards. In 1887 Kansas gave them the right to vote in municipal elections. In 1889 Wyoming was the first state to give women full suffrage. Utah and Idaho followed in 1896. By 1920, the year the 19th Amendment was ratified women had achieved suffrage in 19 of the then 48 states.

Black Suffrage

For blacks the road was much, much longer and far more treacherous. Even as the states extended voting rights to all white men it took away existing voting rights to black men. In the 1790s, African American males who owned property could vote in New York, Pennsylvania, Connecticut, Massachusetts, New Hampshire, Vermont, Maine, North Carolina, Tennessee, and Maryland. All effectively stripped their black citizens of voting rights in the first quarter of the 19th century.

Every new state that joined the Union after 1819 explicitly denied blacks the right to vote. Northern states were almost as averse as Southern states to black suffrage. As late as the end of the Civil War, 19 of 24 Northern states still refused to allow blacks the vote. In October 1865, five months after Appomattox the white men in Connecticut rejected a state constitutional amendment extending the right to vote to black men.

In 1860 Abraham Lincoln won only 40 percent of the vote. The majority, perhaps the vast majority, of Americans did not favor freeing the slaves. Indeed, on March 4, 1861, with the support of the President, Congress sent to the states a Constitutional Amendment that declared, "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State."

Three states had ratified the Amendment before the attack on Fort Sumter shifted the course of history. "By the irony of fate, not the deliberate choice of men, the Thirteenth Amendment to the Constitution when it finally came was to abolish slavery in the United States, not to fasten it upon the continent to the end of time," historians Charles and Mary Beard mused.

In 1865, at a cost of more than 600,000 lives (half of all Americans killed in all wars) the 13th Amendment was ratified. It ended slavery but did not guarantee blacks civil rights nor the right to vote. The former Confederate states immediately enacted black codes that denied blacks basic civil rights, such as the right to serve on juries and testify against whites. In response Congress enacted, over President Andrew Johnson's veto, the Civil Rights Act of 1866 that demanded for blacks "full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other..." The Act also provided that federal rather than state courts would be the venue for litigation concerning the civil rights of the ex-slaves.

To make this extension of rights immune from future Congressional backsliding Congress submitted to the states the 14th Amendment which extended citizenship to "all persons born or naturalized in the United States" and forbidding states from denying any person "life, liberty or property, without due process of law" and "equal protection of the laws." The Amendment was ratified in 1868 after Congress demanded ratification as a precondition for southern states to regain representation.

The 14th Amendment, like the 13th Amendment, did not give blacks the right to vote. Instead it threatened to penalize states that did not. If the right to vote "is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced..."

The threat had no effect. The 15th Amendment finally granted blacks the right to vote. But as historian William Gillette observed, "It was hard going and the outcome was uncertain until the very end." Ratification passed by a paper-thin margin only because Congress continued to deny Virginia, Mississippi, Texas and Georgia Congressional representation until they voted in favor.

Ratified in February 1870 the 15th Amendment almost immediately gave rise to paramilitary groups like the Ku Klux Klan that intimidated black men who tried to exercise their newly won franchise. Congress again responded by passing Enforcement Acts in 1870 and 1871, sometimes called the Ku Klux Klan Acts. These established penalties for interfering with a person's right to vote and gave federal courts the power to enforce the Act. They also authorized the President to employ the army and use federal marshals to bring charges against offenders.

Violence against blacks continued. In 1872, a hotly disputed Louisiana election resulted in a federal judge ruling that the Republican Party, the party of Abraham Lincoln, won the legislature. Southern Democrats refused to accept that verdict. On April 13, 1873, an armed militia of white Democrats attacked black Republican freedmen massacring 105 black people. Federal prosecutors indicted three attackers.

The case went to the Supreme Court. The Court ruled that the due process and equal protection clauses of the 14h Amendment applied only to state action, and not to actions of individuals: "The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another." The indictments were overturned.

Despite physical threats, blacks vigorously exercised their right to vote as long as federal troops protected that right. During the 1870s, more than a half-million black men in the South became voters. When Mississippi rejoined the Union in 1870, former slaves made up more than half of that state's population. During the next decade, Mississippi sent two black U.S. senators to Washington and elected a number of black state officials, including a lieutenant governor. (Interestingly, as the Constitutional Rights Foundation observes, "even though the new black citizens voted freely and in large numbers, whites were still elected to a large majority of state and local offices.") Texas elected 42 blacks to the State Legislature, South Carolina 50, Louisiana 127 and Alabama 99. The number of black state and federal legislators in the South peaked in 1872 at about 320 --a level that remains unsurpassed to this day.

These legislatures moved quickly to protect voting rights for blacks, prohibit segregation in public transportation and open juries to blacks. They also made major contributions to the welfare of poor whites as well as blacks by establishing the South's first systems of free public education, repealing imprisonment-for-debt laws, and abolishing property qualifications for holding office.

One would think the language of the 15th Amendment could not be clearer: "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." The Supreme Court saw it differently. In 1875 the high Court asserted, "The Fifteenth Amendment does not confer the right of suffrage upon anyone." States retained the right to establish "race-neutral" limitations on suffrage. These included poll taxes and literacy tests and even clauses that exempted citizens from these voting requirements if their grandfathers had been registered voters!

In 1877 the last of the Union troops were withdrawn. Southern legislatures ferociously stripped blacks of their hard-earned voting rights and liberties. Using poll taxes, literacy tests, physical intimidation and white only primaries Mississippi slashed the percentage of black voting-age men registered to vote from more than 90 percent to less than 6 percent in 1892. In Louisiana, the number of black registered voters plummeted from 130,000 to 1,342.

As late as 1940 a mere 3 percent of voting-age black men and women in the South were registered to vote. In Mississippi, that number was less than 1 percent. In 1963, only 156 of 15,000 eligible black voters in Selma, Alabama, were registered to vote. Between 1963 and 1965 the federal government filed four lawsuits but the number of black registered voters only increased from 156 to 383 during that time.

In 1964 the 24th Amendment prohibited poll taxes in federal elections. At the time, five Southern states still imposed that election requirement.

One might accurately say that only in 1965, a century after the Civil War ended did blacks effectively gain the right to vote. The Voting Rights Act sent federal examiners to seven Southern states to help register black voters and required states with a history of voter discrimination to gain pre-approval from the federal government before changing any voting requirements.

Within a year, 450,000 Southern blacks had registered to vote, about the same number that had voted in the South a century before. Recently African-American voter turnout has exceeded white turnout in all of the states originally covered by the Act.

The Voting Rights Act, however, did not extend to other minorities. In 1975, when the VRA was up for renewal Congress extended protections to include Hispanics and other minority groups. The new act required an additional 276 counties to gain pre-approval before implementing voting changes, including all of Texas along with several counties in Arizona, California, Colorado, Florida and New York.

As Ari Berman in The Atlanticwrites, "The new VRA made an immediate difference. Within months of the law taking effect, the DOJ stopped a massive voter purge in Texas... the number of Hispanic members of Congress from the Southwest (rose) from 1 in 1975 to 9 by 1985. City councils in America's three largest cities--New York, Chicago, and Los Angeles--became integrated because of the VRA."

While Congress was extending the right to vote, the Supreme Court was ensuring that each vote would be of equal value. In the 20th century states dominated by legislators elected from rural districts refused to reapportion their legislative districts despite the clear shift of populations to urban areas. The result was that in Alabama some districts with the same number of representatives were more than 40 times the population size of others. At one time the vote of one Californian was worth as much as 422 times the vote of another.

Until 1962 the Supreme Court viewed gross electoral inequities as an internal state political matter immune from federal judicial intervention. That year it reversed itself. Two years later the Supreme Court affirmed and extended the 1962 decision in a case where Chief Justice Warren famously declared, "Legislators represent people, not trees or acres." States were ordered to reapportion their legislative districts every ten years and keep voting district populations more or less equal. The Court also upheld lower courts imposing temporary reapportionment when state legislatures proved recalcitrant.

On March 23, 1971, the 26th Amendment dropped the voting age from 21 to 18. The last of John Adam's dystopic prophecies had come to pass. The time from submission to the states and ratification had been only 3 months and 8 days the shortest time in which an Amendment has been ratified.

Felon Disenfranchisement

There remained one major barrier to universal suffrage: the disenfranchisement of prisoners and ex-prisoners. According to the Sentencing Project, prisoners cannot vote in 48 states; 31 states deny voting rights to those on probation and 35 disenfranchise parolees. In 13 states, a felony conviction effectively results in a lifetime ban on voting. Only two states allow inmates to vote.

Other democracies do not restrict voting rights of citizens who commit crimes. Indeed in 2005, the European Court of Human Rights held that a blanket ban even on voting from prison violates the European Convention on Human Rights, which guarantees the right to free and fair elections.

In 1974 the U.S. Supreme Court, in still another display of American Exceptionalism ruled that states could strip felons of the right to vote even after they had come out of prison and completed their probation and parole. In a cruel irony the Court used a passage in the 14th Amendment, an Amendment adopted to give former slaves equal protection and citizenship rights, to justify a decision that has stripped millions of blacks and Hispanics of the foundation of citizenship--the right to vote.

From 1980 to 2010 the prison population expanded almost fivefold to 2.2 million. The population on probation rose to 4.06 million. Today over 7 million adults are on probation, parole or in jail or prison. If we include ex felons who have served their sentences, the total could be 20 million.

The burden of these laws falls disproportionately on blacks and Hispanics. Approximately 13 percent of the United States' population is African American, yet African Americans make up 38 percent of the prison population. Slightly more than 15 percent of the United States population is Hispanic, but they comprise 20 percent of the prison population.

By 2014, Florida, Kentucky and Virginia disenfranchised 20 percent or more of black adults. Overall, one of every 13 blacks has lost the right to vote.

In the national elections of 2012 all state felony disenfranchisement laws added together blocked an estimated 5.85 million people from voting, up from 1.2 million in 1976.

A careful analysis by Professors Christopher Uggen and Jeff Manza suggests that disenfranchising felons has altered the American political landscape. After the 1984 elections, for example, Republicans held a 53-47 Senate majority. If felons had been allowed to vote Democrats probably would have been elected to the Senate in Virginia, Texas and Kentucky.

Mitch McConnell likely would never have become Majority Leader. In 1984 candidate McConnell narrowly defeated the Democratic nominee by 5,269 votes. The total number of disenfranchised felons in Kentucky that year was over 75,000. Using a very low presumed ex-prisoner voter turnout rate of 13 percent, almost 11,000 Democratic votes likely were lost to disenfranchisement, twice the Republican plurality.

Florida disenfranchises 1.5 million voters, the highest rate in the nation. In the 2000 election, George W. Bush won the Florida election, and therefore the Presidency, by 537 votes. Again using an extremely low turnout rate an additional 60,000 net votes for Gore would have swept him into office.

Samuel Alito and John Roberts would not be Supreme Court Justices. The death of Antonin Scalia would not be convulsing the nation.

Felon disenfranchisement is clearly a partisan issue. Today 12 states deny voting rights to some or all ex-felons who have successfully completed their prison, parole or probation terms: Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee, Virginia and Wyoming. All but four went red in the 2012 Presidential election.

On July 4, 2005, to mark Independence Day, Democratic Governor Tom Vilsack issued an executive order restoring voting rights to Iowans who had completed sentences for felonies. In the nearly six years it was in effect, Vilsack's order restored voting rights to an estimated 115,000 citizens. On Inauguration day, January 14, 2011, Republican Governor Terry Branstad reversed that order.

In 2007 then Republican Governor Charlie Christ of Florida instituted streamlined procedures to restore voting rights to ex-felons. More than 150,000 citizens had their rights restored. In 2011 Republican Governor Rick Scott narrowly edged out Christ, who was running as an Independent and reversed his reforms.

Direct democracy

The Founding Fathers created a Republic, not a Democracy. They wanted the popular will expressed through elected representatives, not directly. But by the late 19th century people were fed up with representatives they viewed as corrupt and unresponsive. The Populist and Progressive movements arose to channel the people's dissatisfaction. As the advocacy group, Citizens in Charge observes, "The supporters of both these movements had become especially outraged that moneyed special interest groups controlled government, and that the people had no ability to break this control...The cornerstone of their reform package was the establishment of the initiative process for they knew that without it many of the reforms they wanted - that were being blocked by state legislatures - would not be possible."

In 1897 Nebraska became the first state to allow its cities to initiate legislation (initiative) or vote on legislation already passed (referendum). Between 1898 and 1918, 24 more states and even more cities adopted similar provisions. Today 37 states, the District of Columbia and hundreds of cities have initiative and referendum.

Eighteen states also allow the recall of governors, although only once have voters turned out a governor in midterm. Over 60 percent of American cities allow for recall and thousands of local officials have been recalled over the years.

Progressives also challenged the backroom power dealings of political party officials by advocating compulsory statewide primaries. In 1903 Wisconsin introduced such a law. Oregon soon followed. By 1916, the only states in the Union that had not yet adopted a primary system of some kind were Connecticut, New Mexico, and Rhode Island.

Pre-emption

Today, except for felons, the United States has universal suffrage. But recently, states have diminished the value of suffrage by denying local voters the right to vote on specific issues.

In late 2014 the residents of Denton, Texas directly voted to ban fracking. The Texas legislature quickly stripped them and all Texas citizens of the right to vote on that issue. After Madison and Milwaukee raised the minimum wage the Wisconsin legislature preempted them and all cities from doing so. When cities began implementing mandatory sick leave policies seven states banned such policymaking.

Preemption is increasing. "2015 saw more efforts to undermine local control on more issues than any year in history," says Mark Pertschuk, director of the watchdog group Preemption Watch. Legislatures in at least 29 states introduced bills to block local control over a range of issues, from the minimum wage, to LGBTQ rights, to immigration.

In Michigan a new law specifically prohibits local governments from "the regulation of terms and conditions of employment within local government boundaries". That includes wages, sick leave scheduling, and for good measure, the law also prohibits local governments from saying no to big box stores like Walmart.

A bill introduced into the Oklahoma legislature would go further, effectively stripping all Oklahoma cities of home rule. If enacted, local government actions would have to be specifically authorized by the state or they would be invalid.

Voting Rights Under Siege

The right to vote matters little if you can't cast your vote. In the last 50 years states have made it ever easier to access the ballot. Today 37 states allow for early voting. Three states allow voting by mail. Eleven states plus the District of Columbia allow for same day registration. States have facilitated military and overseas voting.

And then in 2008 the Supreme Court opened the door to more restrictive voting procedures when it upheld an Indiana law that required all voters casting a ballot in person to present a United States or Indiana photo ID.

The facts of the case were not in dispute. Those least likely to have state-issued identification are disproportionately poor and nonwhite. The only voter fraud addressed by photo IDs is voter impersonation fraud, which is practically nonexistent.

Nevertheless, by a 6-3 vote the Supreme Court declared Indiana's law valid. Justice John Paul Stevens, writing for the majority opined that from then on the burden of proof would not rest on the state to justify new voting restrictions but on the citizenry to prove that this created a burden. And not just an incidental burden As Stevens explained, "Even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners' right to the relief they seek."

Voter ID, like felon disenfranchisement, is a partisan issue. In 2014 the GAO reported voter ID depresses voter turnout by 1.9-3.2 percent, largely in communities of color and the poor. That helps Republicans. As Nate Silver observes, "In almost every state where the ID laws have been at issue, Republican governors and legislatures have been on the side of passing stricter ones, while Democrats have sought to block them."

Since 2010, 23 states have either introduced more restrictive voter procedures or tightened those in operation.

Arizona passed a law requiring voters to show proof of citizenship, a move that could have a dramatic impact on both voter registration and voter turnout. In June 2013 the Supreme Court ruled it could not do so, but advised Arizona it could sue the Election Assistance Commission, whose four Commissioners are appointed by the President and confirmed by the Senate, to get the federal voter registration form amended to require proof of citizenship in those states that requested the change. Arizona, Georgia and Kansas did so.

In early 2014 the EAC denied their petition. Arizona sued the EAC and in June 2015 the Supreme Court affirmed the authority of the EAC to do so.

On November 2, 2015 the EAC announced the hiring of a new Executive Director. Brian D. Newby had been a Kansas county elections commissioner for 11 years and is a friend of Kansas Secretary of State Kris Kobach. A few days later Kansas, along with Georgia and Alabama sent another petition to the EAC. In late January 2016, without public notice or review by other EAC Commissioners, Newby granted their request, effective immediately.

Events are quickly unfolding. Voting rights groups, backed by a furious Department of Justice, petitioned the District Court to issue a temporary restraining order. In late February the District Court refused to do so, pending a full hearing on March 9.

States are trimming or eliminating measures adopted over the last 20 years to bolster electoral participation by minority and younger voters. Eight states have enacted new laws cutting back on early voting days and hours. In 2013 North Carolina lawmakers reduced early voting days from 17 to 10, ended the ability to register and cast a vote on the same day and abolished a preregistration program for 16- and 17-year-olds.

In 2013 The Supreme Court effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, freeing the nine covered states and dozens of counties in New York, California and South Dakota to change their election laws without advance federal approval. The Department of Justice can still sue under another section of the VRA, something they have done several times since 2013.

The case of Texas illuminates the challenges that remain in achieving effectively universal suffrage.

Texas' photo ID law was first blocked in 2012 under VRA. "A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote," wrote Judge David Tatel. "The same is true when a law imposes an implicit fee for the privilege of casting a ballot."

After the Supreme Court ruling the DOJ again sued Texas. In her October 2014 ruling, Judge Nelva Gonzales Ramos noted that 600,000 registered voters in Texas--4.5 percent of the electorate--lacked a government-issued ID, but the state had issued only 279 new voter IDs. African-Americans were three times as likely as whites to not have a voter ID and Hispanics twice as likely. She concluded, the law was passed by the Texas legislature, "because of and not merely in spite of the voter ID law's detrimental effects on the African-American and Hispanic electorate." She called it a "poll tax" and enjoined Texas from putting the photo ID law into effect.

Five days after Ramos issued her ruling, the US Court of Appeals for the Fifth Circuit--one of the most conservative courts in the country--lifted the injunction. The Supreme Court upheld the Appeals Court.

As part of her decision Judge Ramos remarked, "In every redistricting cycle since 1970, Texas has been found to have violated the VRA with racially gerrymandered districts." In 2016 the Supreme Court will hear still another case involving Texas voter laws. This one involves apportionment.

Texas wants to take an unprecedented step: reapportioning based on the number of eligible voters not the total voting population. This would have devastating impacts on communities of color. About a third of the Hispanic population are under 18 compared to less than a fifth of the white population. About a fifth of Hispanics are adult non-citizens compared to a minuscule number of whites. If the proposal were to go into effect, in other words, it would take almost 2 Hispanic votes to equal one white vote.

A lower court denied Texas the right to put this new voting apportionment scheme into effect. It is possible the Supreme Court would have approved it by a 5-4 decision, but with the death of Scalia the lower court's ruling will be in effect.

Despite the Supreme Court decisions that made one-person one vote the law of the land, states continue to gerrymander election districts. All parties do so but recently the Republican Party has elevated gerrymandering to a fine art. As a result in Pennsylvania, Ohio and Virginia one Republican vote equal 2.5 Democratic votes. In North Carolina the ratio is 3 to 1. In 2008 California citizens exercised their initiative rights to create an independent redistricting Commission to redraw election districts. An independent assessment found that the process has elicited broad bipartisan support and resulted in many more competitive legislative races.

The Founding Fathers had an elitist vision of governance that Americans in the 20th century disavowed. But democracy is a fragile flower. Untended its roots wither. Recently we have not been good gardeners. Perhaps as a result democracy is now under siege. It is up to an engaged citizenry to honor those who have given their lives over the last century to achieve universal suffrage by protecting and expanding the franchise in the face of concerted attacks by monied power.