The Voting Rights Act

Towards Universal Suffrage

The Voting Rights Act was the first step in a series of major strides by Congress and the Supreme Court between 1960 and 1975 in eliminating most of the remaining restrictions on the franchise, racially motivated or otherwise. Longstanding barriers to voting fell, one after the other, as a result of legislation and decisions of the highest court in the land. 

The remaining financial barriers to the franchise were the first to be removed. Economic barriers were not nearly as widespread as they had been in the 18th and 19th centuries, but many did still exist, and there was nothing to prohibit them so long as they were not racially discriminatory.  

The Poll Tax

The 24th Amendment, ratified in 1964, banned poll taxes in federal elections. 

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Following the release of the report from Truman’s Committee on Civil Rights, there had been movement in Congress to abolish poll taxes. But when attempts at legislation were blocked by Southern opposition, John F. Kennedy proposed that a Constitutional amendment, which was ratified just over a year after it was introduced. 

The 24th Amendment was adopted in direct response to the civil rights concerns posed by the use of poll taxes, but it did not eliminate them entirely. When the 24th Amendment was ratified in 1964, five states still retained a poll tax: Virginia, Alabama, Texas, Arkansas, and Mississippi. The amendment only extended to federal elections, and those states kept their taxes in force for state elections. It was not until 1966 that the Supreme Court ruled on equal protection grounds in Harper v. Virginia Board of Elections that poll taxes for state and local elections were unconstitutional as well. The Supreme Court, now in the midst of a comprehensive assault on discriminatory voting laws, had removed yet another of the southern state’s favorite tools for keeping African Americans from the polls. 

Strict Scrutiny

As the Supreme Court took on more and more voting cases, it established a threshold of “strict scrutiny” for laws that restricted the franchise. First established in Kramer v. Union Free School District (1969) applying strict scrutiny to voting laws meant that they now had to be “necessary to promote a compelling state interest” and “narrowly tailored” so as to accomplish their goal with a minimum of other consequences. Put differently, “all those excluded” by a particular law had to be substantially less interested in or affected by an election’s outcome than those who were permitted to vote. It would no longer be permissible for a state to pass broadly exclusionary laws in the name of preventing voter fraud. 

The Demise of Literacy Tests

It took longer for Congress and the Supreme Court to eliminate literacy tests than it did for many of the other discriminatory legal devices related to voting. In fact, the Supreme Court had ruled in the 1959 case Lassiter v. Northampton County Board of Elections that literacy tests were constitutional as long as they were not administered in a racially discriminatory fashion. 

The Voting Rights Act of 1965 suppressed literacy tests in its covered districts, temporarily disabling that device in most of the South. Then in 1969, the Supreme Court took the added step of striking down literacy tests in districts where schools had been segregated in Gaston County v. U.S. The next year, the Voting Rights Act of 1970 extended its suppression of literacy tests to all states for a period of 5 years. 

It was not until 1975 that Congress decided to make its ban on literacy tests permanent. It did not seem likely that the circumstances surrounding the administration of a literacy test were likely to ever not be discriminatory. The permanent ban was never challenged in the Supreme Court, and in fact, most states had provisions in place for illiterate voter assistance by 1975. 

Residency Requirements

Congress took steps to reduce another discriminatory device in 1970: lengthy residency requirements. Although some states had begun to shorten their requirements, most states still had a one-year residency requirement in place to vote in federal elections, as well as shorter, but still substantial—requirements in individual precincts and counties. The impact of these requirements should not be underestimated—as many as 15 million people were kept from the polls in the 1964 elections by residency requirements alone. Congress prohibited states from imposing a residency requirement longer than 30 days as part of the 1970 Voting Rights Act. 

The Voting Age

In the midst of the many changes in voting law occurring between 1965 and 1975, the nation took action on one more longstanding question about the franchise in the United States: what was to be the accepted voting age? 

Since the founding, 21 had generally been accepted as the age of reason in the United States. It was a carryover from colonial precedents and for most of American history, states had been remarkably consistent in maintaining 21 as the voting age. But for almost as long as laws setting a voting age had been in place, there had been a sporadic campaign to see it lowered. 

Efforts to lower the voting age, like many other voting rights issues, often corresponded with military conflicts. During every major war, reformers made the case to lower the voting age on the grounds that men old enough to fight for their country were old enough to vote, but they had little success. 

During World War II, the draft age was lowered to 18 in 1942. Republican Senator Arthur Vandenberg and Democratic Representative Jennings Randolph responded by proposing a Constitutional amendment to lower the voting age to 18 as well. “If young men are to be drafted at 18 years of age to fight for the government,” declared Vandenberg, “they ought to be entitled to vote at 18 years of age for the kind of government for which they are best satisfied to fight.” Randolph added that 1/4 of the Army, half the Marine Corps, and more than 1/3 of the Navy were made up of men under the age of 21. 

Although polling data indicated that most Americans favored lowering the voting age between 1939 and 1952, the efforts of Vandenberg, Randolph, and others were consistently thwarted by the opposition on the grounds that it was not a high priority, or that it was a state issue. 

Vietnam changed everything. The unpopular war inspired political activism on the part of 18, 19, and 20 year-olds of the kind the nation had never seen. Draft protests and college demonstrations pushed younger people into the political sphere, and their disfranchisement underscored the lack of democratic support for the war and legitimized resistance to the draft. This placed nearly irresistible pressure on lowering the voting age. 

The 26th Amendment

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Congress responded to the political pressure and set the voting age at 18 in 1970. In less than a year, a challenge to that provision reached the Supreme Court, which ruled in Oregon v. Mitchell that Congress had the authority to set the voting age in federal elections, but did not have the authority to do so in state elections. The verdict and the reasoning behind it were complex and varied, but the result of the decision was a bifurcated voting age: 18 in federal elections and 21 in state and local elections in almost every state. 

The prospect of running an election with such a two-tiered age limit was a logistical nightmare.  Voters under 21 who wanted to vote in federal elections (of which there were millions) would have to register separately and vote on different voting machines or with different ballots. It would have cost millions of dollars to administer such a system, and it seemed unlikely that states could implement changes before the 1972 elections. Not to mention that many states could not respond in time by lowering their own voting age to 18 because of requirements that state constitutional amendments be passed by successive sessions of the state legislature or by popular referenda, and sometimes both. 

The impending logistical crisis spurred Congress to act. One month after Oregon v. Mitchell, which was decided on December 21, 1970, the 26th Amendment had been introduced to Congress, and by March 23, 1971, it had passed both houses of Congress by overwhelming majorities. The Senate voted 94–0 in favor, and the House voted 401-19. 

State legislatures rushed to ratify the 26th Amendment. By the end of June, 38 states had ratified. Less than 6 months after Oregon v. Mitchell had created a daunting split in the voting age; the fastest amendment to the Constitution to date had lowered it to 18.