Journal Article
Who Are to Be the Electors? A Reflection on the History of Voter Registration in the United States

 Inevitable tension exists between the professed democratic principle of universal suffrage and the Jeffersonian aspiration that the electorate be highly educated and informed. The conflict has played itself out repeatedly in our legal and political history in debates over the scope of voting rights. These debates reveal fundamental American ambivalence about a bedrock question of political values: are certain citizens more fit than others to be electors? Beginning with the imposition of personal voter registration requirements in this country at the turn of the century, this question has been answered indirectly by reformers who seek to determine how people register and in so doing, to determine who registers and, ultimately, who votes. A powerful theme in these efforts at registration reform3 has been a deep distrust and prejudice against illiterate, poor, and minority voters. As a result, the tension between universal suffrage principles and the notion that only the educated and informed should vote often has been resolved to the detriment of illiterate, poor, and minority voters. rs. Successive waves of registration restrictions,  brought about by political forces largely beyond the control of the individual voter, have shaped and reshaped the American electorate over time, often to the benefit of one or another group of cognizable interests. Two useful lessons emerge from this history. First, registration restrictions can have a discernable impact on the racial and socioeconomic character of the electorate.4 Such restrictions can be, and at certain times in our history intentionally have been, tailored to limit the participation of particular groups. In short, "to a consider- able extent, [electorates] can be political artifacts. Within limits, they can be constructed to a size and composition deemed desirable by those in power."5 Second, the government, at both state and federal levels, has played an active role in creating barriers to voter registration and, thus, to political participa- tion. This history of government-sponsored electoral restrictions suggests that the government now should bear significant responsibility for expanding voter registration. Whether or not athose in power" have an explicit vision of an ideal elector- ate, the question "who are to be the electors?" is implicit in much of the debate surrounding Congressional efforts at national voter registration reform in the last twenty-five years. These efforts have ranged from universal, census- based registration programs to limited registration mechanisms that rely on access to politically relevant private resources, such as automobiles, that are less available to minority, illiterate, and poor voters. Although even the limited mechanisms promise to increase overall voter registration levels, such mecha- nisms have the potential to create substantial disparities in registration rates among minorities and the poor. While not necessarily motivated by bias against illiterate, minority, and poor voters, programs that tie voter registration to critical private resources are insensitive to the harsh effects that certain kinds of registration restrictions can have. To the extent that Congress has focused on such programs as a means to expand registration, it has been unable to fashion legislative initiatives to fully remove barriers for the persistently unregistered. Congressional efforts to broaden registration have been further stymied by some lawmakers for whom prevention of voter fraud is a greater priority than addressing the risk of growing disfranchisement among these groups. Among Western democracies, only Switzerland has more depressed voter  participation rates than the United States.6 In the many countries with higher participation levels, the government, not the individual, is responsible for maintaining voter eligibility. The United States is unique in requiring personal registration that places the onus on the voter to maintain her eligibility to vote. Importantly, studies show that when voters in this country become registered, they turn out at about the same rate as voters in other Western countries.7 In the United States, people who register and vote tend to be more educated and wealthy than those who do not. Whites are more likely to be registered than minorities. In many other Western countries, there is no such class and race-skewed pattern.8 Moreover, even in the United States, it has not always been true that those people with less education and income participate less in the political process. Around the turn of the century, before the introduction of personal registration laws in the United States, poor and working class men were active voters when mobilized along party lines.9 Likewise, during the Depression, electoral participation did not decrease among the unemployed; rather, the unemployed were mobilized politically to express economic discon- tent.10 Moreover, during Reconstruction, when the federal government affir- matively acted to register and protect the voting rights of millions of freedmen, participation rates among African-Americans were quite high.11 These data suggest that the American notion that political abstention is a natural conse- quence of lower educational and economic status is wrong.12 In this Article, I argue that race and class disparities in rates of voter registration and participation in this country are not inevitable. Rather, they are the product of historical and continuing racial and socioeconomic bias in the operation of our registration laws. Part I of the Article traces the evolution  of personal voter registration requirements in the South and the North to show how these requirements have functioned to limit the participation of certain groups of voters. Part Π examines some of the dominant themes in current registration reform efforts. The modern voter registration debate no longer centers around the "intelligent use" of the ballot. Instead, efforts to restrict the franchise come largely under the rubric of ballot security and the need to protect against voter fraud. Many of these modern ballot security measures have the potential to perpetuate the historical, racial, and socioeconomic bias in registration and participation created by their turn-of-the-century anteced- ents. Part III explores criteria to evaluate voter registration reform based on the concept that the policies behind the Fourteenth Amendment and the Voting Rights Act impose a duty on the government to take affirmative steps to eradicate the lingering vestiges of past discrimination in voting.

Title
Publication TypeJournal Article
Year of Publication1991
AuthorsCunningham D
JournalYale Law & Policy Review
Volume9
Issue2
Pagination370-404
Abstract

 Inevitable tension exists between the professed democratic principle of universal suffrage and the Jeffersonian aspiration that the electorate be highly educated and informed. The conflict has played itself out repeatedly in our legal and political history in debates over the scope of voting rights. These debates reveal fundamental American ambivalence about a bedrock question of political values: are certain citizens more fit than others to be electors? Beginning with the imposition of personal voter registration requirements in this country at the turn of the century, this question has been answered indirectly by reformers who seek to determine how people register and in so doing, to determine who registers and, ultimately, who votes. A powerful theme in these efforts at registration reform3 has been a deep distrust and prejudice against illiterate, poor, and minority voters. As a result, the tension between universal suffrage principles and the notion that only the educated and informed should vote often has been resolved to the detriment of illiterate, poor, and minority voters. rs. Successive waves of registration restrictions,  brought about by political forces largely beyond the control of the individual voter, have shaped and reshaped the American electorate over time, often to the benefit of one or another group of cognizable interests. Two useful lessons emerge from this history. First, registration restrictions can have a discernable impact on the racial and socioeconomic character of the electorate.4 Such restrictions can be, and at certain times in our history intentionally have been, tailored to limit the participation of particular groups. In short, "to a consider- able extent, [electorates] can be political artifacts. Within limits, they can be constructed to a size and composition deemed desirable by those in power."5 Second, the government, at both state and federal levels, has played an active role in creating barriers to voter registration and, thus, to political participa- tion. This history of government-sponsored electoral restrictions suggests that the government now should bear significant responsibility for expanding voter registration. Whether or not athose in power" have an explicit vision of an ideal elector- ate, the question "who are to be the electors?" is implicit in much of the debate surrounding Congressional efforts at national voter registration reform in the last twenty-five years. These efforts have ranged from universal, census- based registration programs to limited registration mechanisms that rely on access to politically relevant private resources, such as automobiles, that are less available to minority, illiterate, and poor voters. Although even the limited mechanisms promise to increase overall voter registration levels, such mecha- nisms have the potential to create substantial disparities in registration rates among minorities and the poor. While not necessarily motivated by bias against illiterate, minority, and poor voters, programs that tie voter registration to critical private resources are insensitive to the harsh effects that certain kinds of registration restrictions can have. To the extent that Congress has focused on such programs as a means to expand registration, it has been unable to fashion legislative initiatives to fully remove barriers for the persistently unregistered. Congressional efforts to broaden registration have been further stymied by some lawmakers for whom prevention of voter fraud is a greater priority than addressing the risk of growing disfranchisement among these groups. Among Western democracies, only Switzerland has more depressed voter  participation rates than the United States.6 In the many countries with higher participation levels, the government, not the individual, is responsible for maintaining voter eligibility. The United States is unique in requiring personal registration that places the onus on the voter to maintain her eligibility to vote. Importantly, studies show that when voters in this country become registered, they turn out at about the same rate as voters in other Western countries.7 In the United States, people who register and vote tend to be more educated and wealthy than those who do not. Whites are more likely to be registered than minorities. In many other Western countries, there is no such class and race-skewed pattern.8 Moreover, even in the United States, it has not always been true that those people with less education and income participate less in the political process. Around the turn of the century, before the introduction of personal registration laws in the United States, poor and working class men were active voters when mobilized along party lines.9 Likewise, during the Depression, electoral participation did not decrease among the unemployed; rather, the unemployed were mobilized politically to express economic discon- tent.10 Moreover, during Reconstruction, when the federal government affir- matively acted to register and protect the voting rights of millions of freedmen, participation rates among African-Americans were quite high.11 These data suggest that the American notion that political abstention is a natural conse- quence of lower educational and economic status is wrong.12 In this Article, I argue that race and class disparities in rates of voter registration and participation in this country are not inevitable. Rather, they are the product of historical and continuing racial and socioeconomic bias in the operation of our registration laws. Part I of the Article traces the evolution  of personal voter registration requirements in the South and the North to show how these requirements have functioned to limit the participation of certain groups of voters. Part Π examines some of the dominant themes in current registration reform efforts. The modern voter registration debate no longer centers around the "intelligent use" of the ballot. Instead, efforts to restrict the franchise come largely under the rubric of ballot security and the need to protect against voter fraud. Many of these modern ballot security measures have the potential to perpetuate the historical, racial, and socioeconomic bias in registration and participation created by their turn-of-the-century anteced- ents. Part III explores criteria to evaluate voter registration reform based on the concept that the policies behind the Fourteenth Amendment and the Voting Rights Act impose a duty on the government to take affirmative steps to eradicate the lingering vestiges of past discrimination in voting.

URLhttp://www.jstor.org/stable/40239361?seq=1#page_scan_tab_contents