Class 1: The Original Constitution, then...

Welcome to my Substack Course on Voting Rights and Election Law!

Thanks to so many for enrolling. I hope you get as much out of taking it as I get out of teaching it.

Perhaps the best place to open a course on voting rights and election law is the Constitution itself. That’s why I like to start by scouring our Founding document for the words and clauses that involve voting and/or elections, which give us a broader sense about how voting and broader notions of democracy were viewed within the new nation.

As you may have found in doing the reading assignment—especially with a preamble that begins with the phrase “We the People…”—there are surprisingly few clauses that actually address the topic of voting and elections. And for all the discussion of the “right to vote” in America, no such phrase appears in the original Founding document.

The words that do appear show us much about how the Founders conceived of voting, elections and democracy—but in their vagueness and scarcity, those words open up far more questions to grapple with going forward than they answer.

Let’s go through the specifics, shall we?

1. Art. 1, Section 2: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

This clause established two things:

First, the people of the states did have an opportunity to vote for members of the House of Representatives—and that turns out to be their only chance to vote in federal elections at the time. As the original Article 1, Section 3 and Article 2, Section 1 made clear, the people did not at the time vote for either Senators or the President. (That was also true for many/most statewide elections). Those direct elections would only come via later Amendments. For the time, House elections were the sole place where the people weighed in at the federal level.

Second, this clause establishes that it is the states themselves—in setting their own standards for their own legislative elections—that determine who is eligible to vote in those federal House of Representative elections.

How was this decision to defer to the states reached?

Like everything else in the Constitution, this clause was the result of a compromise. Some wanted a minimum property requirement for voting enshrined into the Constitution itself; others disagreed on principle (Benjamin Franklin was a loud opponent); others worried the Constitution would not be ratified if a property threshold were placed into the Constitution that would disenfranchise voters in certain states.

So the compromise reached was to defer to the states to use the standards they already had in place, or the standards they opted for in the future. Which meant several things:

First, it meant that the wide array of rules already in place in these states determined who could vote in federal House races. And, essentially, this was a blanket approval of all these rules and restrictions. And what were those original rules?

• Reflecting the general view of voting at the time (as an elite “privilege” and not a right), almost all colonies and early states had property qualifications for voting—either a land-owning requirement or a threshold of a certain amount of wealth. Pennsylvania (where voters needn’t own land, but had to pay a poll tax instead—a reform viewed as a revolutionary at the time) and Vermont were exceptions;

• Some states made it explicit that only males could vote (Del., MA, NH, NY, SC, VA)

• Some states made it explicit that only white citizens could vote (GA, SC, VA)

• To be clear, the property requirement largely limited voting to white males even when those explicit bans were not written into law.

And second, rather than establishing a basic, national standard for eligibility to vote, this clause kickstarts generations of future, fierce debate (and much worse) about the nature of voting itself (is it a “right” or a “privilege”?) and who gets to vote. And for much of our history, that debate is subject to the whims of state-level politics and machinations, with no federal recourse available.

At the same time, unlike some states, Article 1, Section 2 establishes no prohibitions in the US Constitution as to who can vote. Which leaves the door open for future, state-level reforms opening the franchise to additional Americans. Those would emerge in only decades.

2. Art. 1, Section 4 - Elections, Meetings

   The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

This is known as the Elections clause, and is self-explanatory: states set the basic groundrules of how elections are conducted, but Congress can alter or override those rules “at any time.”

Why the option for federal involvement?

Because some Founders were deeply concerned that states and statehouses might use the power to set these rules to help themselves at the expense of the federal government—including not holding federal elections at all. As Madison wrote: “Whenever the State Legislatures had a favorite measure to carry, they would take care so as to mould their regulations as to favor the candidates they wished to succeed.” (Editorial comment: methinks he was onto something).

3. Art. 4,  Section 4 - Republican government

   The United States shall guarantee to every State in this Union a Republican Form of Government…

As I’ve written in “Laboratories of Auttocracy” and elsewhere, this is a dramatic pronouncement, even if it’s gotten lost over time. It’s a commitment that all states must, to some undefined degree, treat the people as sovereign.