When President Donald Trump said “millions” voted illegally in November, he joined an old American battle. The fight over who can vote in the United States goes back more than two centuries, with one group after another demanding to participate in our democracy, and the Supreme Court often playing referee. This history puts voting rights at the center of this week’s confirmation hearings for Neil Gorsuch, Trump’s nominee to fill the ninth seat on the high court. The next justice’s pen, not the president’s tweets, could redefine your right to vote.
Nonetheless, Trump has raised the stakes over voting rights. He insists not just that he won the popular vote (he didn’t) but that 3 million people voted illegally in California, Virginia and New Hampshire. That assertion is nonsense. Democratic and Republican election officials confirm that voter fraud is almost nonexistent, and Trump’s own lawyers agree the 2016 election was fair. But even cartoonish claims may have big consequences. Vice President Mike Pence has been tapped to investigate Trump’s charges. National legislation to curb voting rights — in the guise of protecting the franchise — could follow.
In the earliest days of the republic, expanding the right to vote was all about who owned what. At first, only white men with property could cast a ballot. Amid the idealism of the American Revolution, that rule came under pressure. Benjamin Franklin led the fight in Pennsylvania in 1776. Said Franklin: “Today a man owns a jackass worth fifty dollars and he is entitled to vote; but before the next election the jackass dies.” Thus the man cannot vote. “Now gentlemen, pray inform me, in whom is the right of suffrage? In the man or in the jackass?”
Up in Boston, John Adams was aghast at Franklin’s push to repeal the property requirement. Soon, he wrote, women, 18-year-olds and “every man, who has not a farthing, will demand an equal voice with any other in all acts of state.”
“There will be no end of it,” Adams warned.
But Franklin’s view eventually prevailed. The property requirement was eliminated during the era of Andrew Jackson. (It’s interesting to note, given today’s politics, that angry white working-class men won the first voting-rights victory.)
Next black men won the vote, in part due to their military service in the Civil War. On April 11, 1865, speaking from a second-floor window at the White House, Abraham Lincoln announced that he had decided to back voting rights for some African-Americans. John Wilkes Booth was in the audience. “That will be the last speech he will ever make,” Booth told a companion. He shot Lincoln three days later. Once the 15th Amendment guaranteed the right to vote regardless of race, hundreds of black men served in leadership roles as governors, senators, in Congress and in legislatures. But the Jim Crow backlash revoked the right.
Then women prevailed in a drive as contentious as any in our history. A key moment came with a massive women’s march in Washington — this time, the day before a presidential inaugural, in 1913. (No pink hats were in evidence.) When thousands of drunk men attacked the marchers, a national scandal ensued, and public opinion swung toward suffrage. The 19th Amendment came seven years later after nonstop protest.
The greatest breakthrough of all came in the wake of the turbulent 1960s, when the civil rights movement first won passage of the Voting Rights Act, and states enacted constitutional amendments to end poll taxes and to lower the voting age to 18.
At every step, nativists and reactionaries fought to keep others from voting. That was a main goal of the anti-immigrant Know Nothing Party in the 1850s and the segregationists a century ago. In 1920, as cities grew in population, Congress simply refused to reapportion seats, hoping to dilute the scary new urban vote. Yes, it’s been ugly.
At times the Supreme Court stepped in. For example, the “one person, one vote” decisions in the 1960s required the redrawing of legislative lines all over the country. But mostly, it was citizens in the streets, not lawyers in the courts, who expanded voting rights.
Now we’re in the middle of the latest drive to suppress the vote. The electorate is narrowly divided. The upheaval of demographic change — with rising minority populations and voting rates — adds to the pressure. Conservative partisans realize they can eke out an advantage by changing voting rules. Since 2011, dozens of new state laws have been passed by legislatures trying to make it harder to vote. The laws range from curbing early voting to limiting registration drives to implementing strict voter ID rules. Studies show that such changes create obstacles for younger voters, poorer voters and voters of color.
This time, though, courts have stepped in. Judges across the country — Republican and Democratic, federal and state — have protected a more expansive right to vote. Federal judges blocked a Texas photo ID law that research showed would have disenfranchised 608,000 registered voters. In North Carolina, a unanimous appeals court panel ruled the state’s 2013 voting restrictions had been written to “target African-Americans with almost surgical precision.” The renowned conservative jurist Richard Posner, who once wrote a foundational ruling upholding a restrictive ID law, now decries such measures as “voter suppression.” With striking consensus, the lower courts have come to agree.
Next it will be the Supreme Court’s turn to speak. There’s reason to worry. In 2013, in its Shelby County v. Holder ruling, the justices gutted the Voting Rights Act by no longer requiring states with a history of discrimination to “preclear” their voting rules with the Justice Department or federal judges. This year, they will decide whether Wisconsin’s electoral map is an impermissible gerrymander designed to benefit the Republican Party. In other cases, the justices may rule on what’s left of the Voting Rights Act and other statutes. Decisions could ultimately spell out how strong the constitutional standards are that protect the right to vote. If Trump’s tirades and Pence’s probe lead to federal voting restrictions, those too may end up before the high court.
Gorsuch has not ruled on voting issues. That only makes it more important that his confirmation hearings test his willingness to stand up for this most basic of American rights. With the White House, Congress and state governments largely in the hands of one party, courts must do more to provide checks and balances against partisan abuse.
John Adams was right: There is “no end of it.” When it comes to voting rights, instead of quiet, we should expect storms. And we should require that presidents — and the justices they nominate — stand strong for democracy.
Michael Waldman, president of the Brennan Center for Justice at NYU School of Law, is the author of “The Fight to Vote.” He wrote this for the Los Angeles Times.