Voting, Laws, and Criminality

In a republic, voting is like the oil that keeps an engine running. Without it, engine parts are frustrated and overheated, eventually breaking down. So, the right to vote and voter participation is crucial. As U.S. history indicates, voting rights have a long and complicated history.

Brief History of Civil Rights Act 1965

The U.S. Constitution initially left it to states to establish qualifications for voting. For decades, state legislatures generally restricted voting to white males who owned property. In some states, only Christian men could vote. Thus, disenfranchising on the basis of sex, religion, and race, among others.

Foundationally, the Constitution and laws of the United States are “the supreme Law of the Land.” State law cannot supersede federal law. State laws that violate this rule are subject to later challenge under the Supremacy Clause.[1] The Fifteenth Amendment was ratified in 1870. The amendment provides that “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.”[2] However, voter suppression mechanisms like the poll tax and literacy tests prevented many African Americans from voting.

The 19th Amendment became the first amendment that assured women in the United States the right to vote. The amendment provides that “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 sex.”[3] In effect, African American and Latina women remained unable to vote because the amendment did not preclude voter suppression. The 24th Amendment, ratified in 1964, eliminated poll taxes. In Harper v. Va. State Bd. of Elections, a voter dilution case, the Court invalidated state poll tax legislation which disenfranchised the lower economic class’ right to vote. [4] The Court reasserted that once the federal government gives a right, it must be applied equally.”[5] The 26th Amendment, ratified in 1971, lowered the voting age for all elections to 18. 

Ultimately, African Americans’ hard work and with the support of allies, led Congress to pass—and President Lyndon Johnson to sign—the Voting Rights Act in 1965. This legislation for many cemented the effect the 15th and 19th amendments were to accomplish. This included federal oversight of states with a history of voter suppression. Further, the Act provided legal redress for people deprived of their right to vote. The Voting Rights Act was momentous, extending suffrage to many Black, Latinx, and Indigenous Americans who had previously been subject to voter suppression.

In recent years, though, the country has taken steps backward in terms of voting rights. In 2013, the Supreme Court in Shelby County v. Holder, effectively withdrew key provisions of the Voting Rights Act.[6] Thus, striking down its formula for determining which areas were subject to federal scrutiny and allowing those jurisdictions to pass laws restricting voting rights without seeking approval from the federal government. The Court rationalized that Congress failed to adjust § 4(b), the coverage formula, before extending the Act in 2006 and forced the Court to address the issue.[7] For now, the permanent, nationwide ban on racial discrimination in voting that was found in § 2 of the Act remains in effect, and it issued no ruling on § 5, only on the coverage formula.[8]

Convicted Felons and the Right to Vote

The Voting Rights Act of 1965 protects against racial discrimination. If you are over the age of 18 and a citizen of the United States you enjoy the right to vote–subject to a glaring caveat. People convicted of felonies can have this right revoked, in some instances permanently.[9] While states vary on the severity of felony disenfranchisement regulations post confinement, all states–other than Maine and Vermont–restrict people convicted of felonies from voting during incarceration. As discussed in previous Criminal Injustice System posts, BIPOC communities are grossly overrepresented in the criminal justice system. Since BIPOC communities are disproportionately affected by mass incarceration, the Voting Rights Act of 1965 fails to sufficiently protect the right to vote amongst these communities. 

The Supreme Court case Richard v. Ramirez challenged the constitutionality of criminal disenfranchisement laws.[10] Justice Rehnquist led the majority in an opinion that held that the 14th Amendment’s phrase “in rebellion or other crime” authorized states to restrict the voting rights of people convicted of felonies.[11] This decision distinguished restricting fundamental rights of a person convicted of a felony from restricting the rights of any other citizen. The issue of racial discrimination perpetrated by this gap in equal protection was considered by the Court in Hunter v. Underwood.[12] This case challenged an Alabama voting law. The Court found the law unconstitutional because the history and implications of the law supported a system of white supremacy.[13] Though the Hunter decision should have set a strict scrutiny precedent for future considerations of felon voting rights, the Court instead demonstrates a preference of looking the other way when it comes to protecting the rights of convicted felons. 

As a result of racial disparities in felony convictions, 1 in 13 African Americans has lost their voting rights. Comparatively, only 1 in 56 non-Black voters have lost the right to vote. This aspect of the criminal system promotes suppression of the fundamental right to vote within BIPOC communities.

All things considered, vote this November 3, 2020. Many individuals, through their blood, sweat, and tears, fought for the equal right to vote. Your voice in the American political process is needed. No matter what political party you support, please go vote. The right to vote is too precious to ignore.

– D. Horton & L. Moose


Voting Information Starter Links

  1. Where do I go for Missoula’s voting information?

Answer: 

Notice is hereby given that on November 3, 2020 there will be a mail election held for the Federal General Election.

https://www.missoulacounty.us/government/administration/elections-office/ballot-voting-information/where-do-i-vote

  • What do I do if I m not registered to vote?

Answer:

Voters NOT registered to vote, your information is not current with our office, or have an undeliverable mail ballot. You must appear at the Elections Center (140 N Russell St) thirty days before or on Election Day for voting services.

Source: https://www.missoulacounty.us/government/administration/elections-office/ballot-voting-information/where-do-i-vote

  •  Where is my polling station?

Answer: FOR PRIMARY & FEDERAL GENERAL ELECTIONS ONLY: Find your polling place by visiting the Montana Secretary of State online:

https://www.missoulacounty.us/government/administration/elections-office/current-election

  •  When does voter registration close?

Answer: October 26, 2020

https://www.missoulacounty.us/government/administration/elections-office/current-election

  •  When are absentee ballots mailed out?

Answer: October 9, 2020

https://www.missoulacounty.us/government/administration/elections-office/current-election

  •  Can I get my absentee ballot sooner?

Answer: October 2, 2020, is the earliest absentee ballots will be available.

https://www.missoulacounty.us/government/administration/elections-office/current-election


[1] See 1 Records of the Federal Convention of 1787, pp. 21, 164-168 (M. Farrand ed. 1911).

[2] U.S. CONST. amend. XV, § 1.                                  

[3] U.S. CONST. amend. XIX, § 1.

[4] 383 U.S. 663, 666 (1966).

[5] Id. at. 670.                                          

[6] Shelby Cnty. v. Holder, 570 U.S. 529 (2013).

[7] Id. at 559. (J. Thomas concurring).

[8] Id. at 557.

[9] See generally  U.S. CONST. amend. XIV, § 2 (criminal disenfranchisement laws are an exception to equal protection).

[10] 418 U.S. 24 (1974).

[11] Id. at 55. 

[12] 471 U.S. 222 (1985). 

[13] Id. at 222.

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