Voting Rights and Suffrage/Federalism

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How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?

Federalism is a system in which governing and law-making powers are shared or divided between federal authorities and regional entities, such as states. One of the policy areas heavily influenced by federalism is voting rights. The right to vote has undergone several changes in scope and implementation as a result of the ongoing ebb and flow between state and federal powers. The sections that follow will highlight major legislative and judicial events that affected- and continue to affect- voting rights in America as a result of federalism.

Two important aspects of the relationship between federalism and voting rights are found in our Constitution. The first of these is Article I Section IV, which empowers state legislatures to set the parameters for their own elections. Because each state can have different electoral procedures and regulations, the exercise of voting rights is varied. It may be harder to exercise one’s right to vote, for example, if their state has stringent identification laws or restrictions on mail-in and absentee voting. As much as the federal government may want to protect voting rights universally, the federalist implications of Article I Section IV gives states the power to determine the scope and practice of suffrage during their elections.

Another portion of the Constitution relevant to federalism is the section of Article VI commonly referred to as the Supremacy Clause. In contrast to the provision mentioned above, this clause empowers the federal government with a degree of control over the states. Specifically, the clause asserts that the laws of the federal government should be recognized as “the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” In relation to voting rights, the supremacy clause gives the federal government the authority to set national standards for suffrage, even if individual states have passed their own legislation. The Supremacy Clause is a facet of federalism unique to the United States.

One of the most significant developments in American voting came as the federal government exercised this legislative supremacy by passing the Voting Rights Act of 1965. The VRA outlawed the discriminatory electoral procedures that had been adopted throughout the South following the Civil War. Most notably, its passage brought an end to the use of literacy tests to determine voter eligibility, which had long been a thinly veiled tool of racial discrimination and disenfranchisement. The VRA significantly altered the scope of American voting rights and remains an example of effectively leveraged federal supremacy. The 1965 Voting Rights Act and the changes that followed were thus an embodiment of federalism’s balancing of power.

Another major development in voting rights affected by federalism came in 2013, with the Supreme Court’s landmark decision in Shelby County vs. Holder. Shelby County, Alabama had issued a challenge to Sections 4 and 5 of the Voting Rights Act which stated certain states with a history of racial discrimination had to receive federal preclearance in order to make changes to their voting laws and procedures. With a 5-4 decision, the Supreme Court ruled in favor of Shelby County, and deemed both sections 4 and 5 of the VRA unconstitutional. The fact that blatant discrimination in the form of literacy tests was no longer present meant that Congress lacked the authority to impose these VRA restrictions, and that doing so “violated the ‘basic principles’ of federalism” (Charles 2015, p. 113). Whereas the passage of the Voting Rights Act represented a victory for the authority of the federal government, the decision in Shelby County vs. Holder swung the pendulum back towards states’ rights. This fluctuation between state and federal authority is the true embodiment of federalism.

Federalism’s impact on voting rights continues to develop and evolve today. As a response to alleged fraud in the 2020 presidential election, numerous state legislatures have advanced bills that would tighten regulations on voter ID, in addition to mail-in and absentee voting procedures. The modern battle over voting rights takes place within the arena of federalism, as different levels of government vie for authority over elections.

In conclusion, federalism has a major impact on the exercise and application of voting rights in America. Federalism has played a consistent role in shaping the balance of power, from the writing of the Constitution, to the struggle for civil rights, to the congressional politics of today. In a piece for Texas Law Review, David Landau and his coauthors effectively summarize the function of federalism with relation to voting: “By separating and dispersing the functions of governance—the day-to-day work of governing—U.S. federalism provides some protection against authoritarianism. The decentralization of authority over elections offers one particularly dramatic example of this dynamic in action” (Landau et al. 2021, p.96). In other words, federalism remains a central component of American politics, and will continue to dictate voting rights and suffrage in future elections.

References:

Charles, Guy-Uriel, and Luis Fuentes-Rohwer. 2015. “Race, Federalism, and Voting Rights.” University of Chicago Legal Forum, January, 113–52.

Landau, David, Hannah Wiseman, and Samuel Wiseman. 2021. “Federalism, Democracy, and the 2020 Election.” Texas Law Review 99 (February): 96–121.

Sarbanes, John. 2021. For the People Act of 2021.