Race And The Right To Vote
By Neil Weare and Erika Wood
By all accounts, the reauthorization of the Voting Rights Act was a success. But while the Act has helped ensure that more and more Americans are able to vote, the unfortunate truth is that over 8 million Americans of voting age living in United States territories, Washington, D.C., or convicted of certain crimes, remain legally disenfranchised. This disenfranchisement is especially troublesome because almost 6 million of those who cant votemore than 70 percent of the totalare racial and ethnic minorities. Unbeknownst to most Americans, this has resulted in over 1 in 10 minorities of voting age being blocked from enjoying the same voting rights as their fellow citizens.
To put this number in perspective, the 15th amendment only enfranchised about 1 million minorities of voting age. The 19th amendment, around 2.7 million. The 26th amendment, roughly 2 million. During the entire first decade of the Voting Rights Act, only between 3 and 5 million minorities of voting age gained the ability to vote.
This ongoing structural disenfranchisement has affected these Americans in different ways. U.S. citizens living in American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands cannot vote for president and have only nonvoting representation in Congress. Although Congress meets in the District of Columbia, District residents are denied voting representation in that body. Meanwhile, persons disenfranchised as the result of criminal convictions are barred from voting in federal, state, and local electionseven, in many cases, after they have reentered society.
Like the discriminatory voting practices that led to the Voting Rights Act, the disenfranchisement of Americans who live in the territories, Washington, D.C., or were convicted of certain crimes is rooted in Americas troubled history of race relations.
The United States acquired its territories at the turn of the 20th century as part of an overseas colonial expansion that had strong racial overtones. Starting in 1901, the Supreme Court, in a series of decisions known as the Insular Cases, established the concept of an unincorporated territory (read colony). These decisions, coming just five years after the court gave its stamp of approval to the policy of separate but equal in Plessy v. Ferguson, granted Congress absolute power over the people of the territories without extending to them the full panoply of rights under the U.S. Constitution. In defending this inequity, the court pointed to the grave questions [that] arise from differences of race, habits, laws, and customs of the people. Now, the grave question is why the over 4 million Americans who call the territories home, 98 percent of whom are racial and ethnic minorities, continue to be treated as second-class citizens.
Neither can the importance of race be ignored with respect to disenfranchisement in our nations capital. Race was not a factor when residents of D.C. first lost the right to vote in 1801, since racial minorities could not lose a right they did not have. But during the intervening 200 years, the denial of voting rights in the District has had a grossly disproportionate effect on persons of color. At present, over 70 percent of the Districts nearly 600,000 residents are racial and ethnic minorities.
Felony disenfranchisement is also rooted in a history of racial discrimination. While felony disenfranchisement laws in America go back to our nations founding, the number of states with these laws nearly doubled in the 35 years following the ratification of the 15th Amendment. As white lawmakers openly designed these laws to apply to crimes most frequently associated with former slaves, they became tools of racial disenfranchisement. Today, while much of the explicit racial animus has been veiled, the impact of these laws has hardly changed. Because of continued racial disparities in our criminal justice system, around half of the over 5 million Americans who are disenfranchised because of a criminal conviction are racial or ethnic minorities.
As our nation is at war, this democracy deficit raises other special concerns. Many of the soldiers who are risking their lives abroad, ostensibly to promote democracy, are unable to vote for their commander in chief and lack voting representation in Congress at home. This is even more distressing when one considers the many servicemen and women from the territories and Washington, D.C., have paid the ultimate sacrifice for their country while being denied the full exercise of their fundamental right to vote. There are nearly 600,000 veterans who have lost their right to vote due to a felony conviction.
Efforts to bring an end to this historical injustice are underway, but they have had only limited success. This November, Rhode Island is considering a constitutional referendum to re-enfranchise people immediately upon release from prison. Next month, the House Judiciary Committee will consider legislation (H.R. 5388) that would grant the residents of the District permanent voting representation in the U.S. House of Representatives. Efforts to end territorial disenfranchisement through a constitutional amendment or resolution of political status have gained less public attention and have largely stalled.
Voting rights advocates should build on the momentum of the reauthorization of the Voting Rights Act to fight for an end to this continuing structural disenfranchisement. Because these disenfranchised Americans are excluded from the very political processes that will determine their future role in our nations democracy, it is ultimately the responsibility of those who can vote to bring about this necessary change.
ABOUT THE AUTHORS
Neil Weare is a student at Yale Law School and a disenfranchised American who is a resident of the U.S. Territory of Guam. Erika Wood is Associate Counsel of the Democracy Program at the Brennan Center for Justice at NYU School of Law.