Right/Voting Rights and Suffrage/Limitations - Restrictions

Voting Rights and Suffrage

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question? 🖉 edit

The fundamental right to vote has remained resilient during both state and national emergencies. Voting access in the United States is primarily governed by state law. Federal laws prohibit a range of restrictions of this right, as has been a historical commitment. As noted in Arizona v. Inter Tribal Council of Arizona (2013), the Supreme Court described Congress’s federal election regulation power as “paramount,” emphasizing that it “may be exercised at any time, and to any extent which [Congress] deems expedient” (National Constitution Center, 2024). Article II, Section 2 of the Constitution does not grant the President the power to postpone or alter elections, clearly delineating their authority (Congress.gov, 2024). In 1845, Congress established the federal election day as “the Tuesday next after the 1st Monday in November, in every even numbered year” (Legal Information Institute, 2024). This framework has provided a longstanding structure for U.S. elections.

Chapter 68 of Title 42 U.S.C. § 5122 defines an emergency as “any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States” (“42 USC 5122: Definitions,” 2018). Similarly, Chapter 34 of Title 50 in the U.S. Code states, “With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency” (“50 U.S. Code Chapter 34 – National Emergencies,” 2024). Elections have continued to be held during times of war. For example, President Lincoln was elected during the Civil War, and President Franklin Roosevelt was re-elected during World War II (Best Best & Krieger LLP, 2024). The specific measures to mitigate the impact of emergencies on elections are determined at the state level. During times of war, if a national or state emergency is declared, states may adjust their election processes accordingly, upholding accessibility to voting to the best of their ability. In Kansas, for example, K.S.A. § 25-622 states that “The secretary of state can adopt alternative methods for distributing ballots in a time of war, equipment failure, or disaster that makes it impossible for voters in an area to obtain ballots” (“25-622,” 2024). States such as Idaho, Kentucky, New York, Oregon, South Dakota, and Utah have policies in place to delay or reschedule elections in the event of an emergency (“Election Emergencies,” 2024).

This holds during emergencies relating to severe weather. Severe weather emergencies are understood under Title 42 as “any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby” (“42 USC 5122: Definitions” 2018). For example, in South Dakota, “Local election boards can delay an election (except for primary or general elections) for 1 week due to weather” (“Election Emergencies” 2024). A governor can request the President to issue a declaration of a major disaster or emergency under this chapter upon "finding that [a] disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and affected local governments and that Federal assistance is necessary” (“42 USC 5122: Definitions” 2018).

References

“A Guide to Emergency Powers and Their Use.” 2018. Brennan Center for Justice. December 5, 2018. https://www.brennancenter.org/our-work/research-reports/guide-emergency-powers-and-their-use.

Best Best & Krieger LLP. "Postponing a Presidential Election and the Law." Accessed August 1, 2024. https://bbklaw.com/resources/postponing-a-presidential-election-and-the-law.

Congress.gov. "Browse: Article II, Section 2." Accessed July 28, 2024. https://constitution.congress.gov/browse/article-2/section-2/#:~:text=The%20President%20shall%20have%20Power,End%20of%20their%20next%20Session.

“Election Emergencies.” 2024. Ncsl.org. 2024. https://www.ncsl.org/elections-and-campaigns/election-emergencies#election.

Legal Information Institute. "2 U.S. Code § 7 - Time of Election." Accessed July 27, 2024. https://www.law.cornell.edu/uscode/text/2/7.

National Constitution Center. "Elections Clause." Last modified 2024. Accessed July 28, 2024. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/750.

Oyez. "Arizona v. Inter Tribal Council of Arizona." Accessed August 1, 2024. https://www.oyez.org/cases/2012/12-71.

“25-622.” 2024. Ksrevisor.org. 2024. https://www.ksrevisor.org/statutes/chapters/ch25/025_006_0022.html.

“42 U.S. Code § 5122 - Definitions.” 2015. LII / Legal Information Institute. 2015. https://www.law.cornell.edu/uscode/text/42/5122.

“42 USC 5122: Definitions.” 2018. House.gov. 2018. https://uscode.house.gov/view.xhtml?req=granuleid:USC-1999-title42-section5122&num=0&edition=1999#:~:text=%2D%22Major%20disaster%22%20means%20any.

“50 U.S. Code Chapter 34 - NATIONAL EMERGENCIES.” 2024. LII / Legal Information Institute. 2024. https://www.law.cornell.edu/uscode/text/50/chapter-34.

What are the typical exceptions or limitations placed on this right? 🖉 edit

Limitations are typically placed on the right to vote on the basis of citizenship, competence, or punishment. Citizenship is usually required in order to vote in any country, and likewise language can be a factor. In terms of competence, restrictions on the right to vote are often determined by age and mental health. Certain countries disenfranchise people with mental disabilities, suggesting that they are not competent to vote, and some go so far as to disallow those under guardianship to vote. Governments also commonly restrict the right to vote in cases where a citizen is imprisoned or has committed a felony. These types of restrictions are usually outlined in a country's constitution (Kirshner).

As seen in the United States, citizens above the age of 18 are eligible to vote. However, in certain states, some people with felony convictions are ineligible to vote. In some states, a felon is ineligible to vote indefinitely, and in other states, the felon may eventually regain the right (USAGov). There is debate surrounding whether or not convicted criminals should be disenfranchised, and therefore, it is typically decided according to the state legislature. Those who do not think that criminals should lose their right to vote often suggest that disenfranchisement could cause racial imbalances because ethnic minorities are more likely than others to be incarcerated in the United States. It is also argued that not being able to vote makes it more difficult to rejoin and participate in society following punishment. In opposition, those who think that criminals should lose their right to vote suggest that criminals have proven to have poor judgement and that criminal punishment must entail a loss of societal privileges and freedom (Goldring, K., 2020).

Furthermore, following the 2010 U.S. election, certain mechanisms have been used in states that make it more difficult for citizens to vote. These mechanisms include strict photo ID requirements, cutting back on early voting, making it more difficult to register to vote, and attempting to restrict absentee voting (Brennan Center for Justice). Introducing bills and laws that make voting more difficult stem from a fear of election fraud, with proponents of such measures suggesting they are necessary to protect the integrity of U.S. elections. These measures are disproportionately affecting African American voters (Amy Gardner, K. R., 2021).

Historically, women have also been denied the right to vote. For instance, in India women were first granted the right to vote in 1935, however, their right to vote was contingent on them being married to a male voter or possessing certain literary skills. Many countries such as Iceland also originally set the minimum voting age to be higher for women than men (Schaeffer, K, 2021). Women in Pakistan did not gain the right to vote until 1947, and women in China were unable to vote until 1949, following a civil war. It was not until the end of the 1960s that most of Africa enfranchised women, and many European countries did not enfranchise women until the 1970s. Many Middle Eastern countries denied women suffrage until the 21st century, with women voting for the first time in Saudi Arabia in 2015. Women continue to face barriers to voting in Middle Eastern countries.

Additionally, there can be barriers to voting in countries following conflict. If many people are displaced because of the conflict, voter registration can be especially difficult. Countries may no longer have their voting lists or many displaced people may no longer be able to locate their personal documents, including their proof of citizenship. Women are typically more likely to be displaced during a conflict, and it is common for them to be hesitant to register to vote following a conflict for they fear losing access to assistance for them and their family. Likewise, following conflict, citizens may fear intimidation from their government and therefore not register to vote (United Nations).

References:

Amy Gardner, K. R. (2021, March 11). How GOP-backed voting measures could create hurdles for tens of millions of voters. The Washington Post. https://www.washingtonpost.com/politics/interactive/2021/voting-restrictions-republicans-states/

Aspinall, G. (2021, March 8). Here Are The Countries Where It's Still Really Difficult For Women To Vote. Grazia. https://graziadaily.co.uk/life/real-life/countries-where-women-can-t-vote/.

Goldring, K. (2020, February 24). Should convicted criminals have the right to vote? theperspective.com/. https://www.theperspective.com/debates/politics/convicted-criminals-right-vote/.

Kirshner, A. (n.d.). The International Status of the Right to Vote. Democracy Coalition Project. New Voting Restrictions in America. Brennan Center for Justice. (n.d.). https://www.brennancenter.org/our-work/research-reports/new-voting-restrictions-america.

Schaeffer, K. (2021, April 28). Key facts about women's suffrage around the world, a century after U.S. ratified 19th Amendment. Pew Research Center. https://www.pewresearch.org/fact-tank/2020/10/05/key-facts-about-womens-suffrage-around-the -world-a-century-after-u-s-ratified-19th-amendment/.

United Nations. (n.d.). Chapter 4. United Nations. https://www.un.org/womenwatch/osagi/wps/publication/Chapter4.htm.

Who Can and Can't Vote in U.S. Elections. USAGov. (n.d.). https://www.usa.gov/who-can-vote.