A year from now, we will have the opportunity, and the obligation, to cast our vote in the 2020 elections. They will no doubt be hard fought, perhaps even seriously wrought. During this coming year, we will also mark the 100th year since women won the right to vote. Seems like a good time to punch the “pause button” and reflect on this right and responsibility.
Voting is a non-partisan issue. President Reagan called it “the crown jewel of American liberties.” President Ford praised the vote as “the very foundation of our American system.” LBJ described it as “the most powerful instrument ever devised by man [no doubt, with women] for breaking down injustice;” and Dr. King called it “Civil Right No. 1.” Our Supreme Court has reminded us that our right to vote is not only “fundamental” but “precious,” and “the essence of a democratic society,” the undermining of which would render “illusory” even the most basic of the rest of our rights. It is also a fragile right, indeed.
In the beginning, the Founders were a bit squeamish about the vote. They didn’t contemplate (or trust) the direct election of the president and other officials. Instead, they created the Electoral College—creating the possibility that the Electoral College might trump the popular vote (as happened in 1876 and 2016, not to mention whatever it is that happened in 2000). Native Americans couldn’t vote; nor could enslaved people; nor could women, whether enslaved or free. Voting was the right of white, likely propertied, men.
After the Civil War, as part of the “Second Founding,” our nation ended slavery (the 13th Amendment), confirmed citizenship and its accompanying rights for those born in the United States or “naturalized” (the 14th Amendment), and granted to citizens the right to vote (the 15th Amendment). They were majestic steps, but they were also incomplete. Still no right to vote for women, or for others then deemed “the other.”
Unfortunately, being “given” those rights did not secure the ability to exercise them. The concerted effort to de-construct Reconstruction came to life. Lynchings (including the June 15, 1920 lynching of three young men in our own Duluth) were not only vicious murders but terroristic messages. Basically: “Don’t you dare exercise your rights.” Poll taxes and literacy tests abounded, with seemingly limitless ingenuity: “How many bubbles in that bar of soap?” and “How many drops in that bucket of water?”
Still, our nation persisted. During the 1890s, the secret ballot took hold. By 1913, the 17th Amendment required the direct election of U.S. Senators. By 1920, women won the right to vote, via the 19th Amendment. In 1924, the Indian Citizenship Act was passed, including the right to vote for Native Americans. In 1943, the Magnuson Act permitted Chinese immigrants to become naturalized citizens, and thus to vote. And then the ‘60s and ‘70s came along—with the 23rd Amendment giving D.C. citizens the right to vote in presidential elections; the 24th Amendment eliminating poll taxes; the Voting Rights Act prohibiting literacy tests (and, it seemed, securing the right to vote for all, for all time, as long as it was allowed to renew); and the 26th Amendment, granting the right to vote to those who were 18 years old (being old enough to go to war called for the right to vote, including the right to vote for or against those who would send them to war in the first place).
All of which reflects a strong and hopeful trend, worthy of our nation’s founding and core character. Chief Justice Roberts has said that “things have changed dramatically,” and that “our Nation has made great strides” since the 1965 Voting Rights Act, in particular. But Justice Ginsburg’s cautionary note is also important; we must be alert to the risk of “throwing away your umbrella in a rainstorm because you are not getting wet.” Our fragile right to vote is still vulnerable to subtle, sophisticated, “second generation” barriers: redistricting, gerrymandering, polling place relocations or scheduling manipulations, intricate or unrealistic Voter ID or other registration or “residency” requirements, the occasional purging of voter rolls, hackable voting machines, or even printing too-few ballots. It is also vulnerable to anonymous, highly-funded, and clever injections of chaos, whether by foreign nations, tricksters, or carefully veiled operatives, whose motives range from mischievous to malignant. Vigilance is vital.
One more thought; and yes, it’s connected. This month we mark Veteran’s Day, first called Armistice Day (the 11th hour of the 11th day of the 11th month, 101 years ago now).
Sometimes we catch the eye of a uniformed service member, or a vet proudly sporting a patriotic cap, including many lawyers amongst us, and say: “Thank you for your service.” Do you wonder what they wonder about, as they nod graciously?
They served to protect and preserve our rights. The least we can do is exercise those rights. If we don’t exercise the right to vote, the heartbeat of our democracy will wither. If we don’t guard against its diminishment, the lamp of our liberty, and the rule of law itself, will dim and then fade. So, of course: Vote. But do more. Keep your eyes and ears open, and your antennae up, to detect efforts to suppress the vote. Shine a light on those efforts. Do something to protect and strengthen our sacred right to vote. On that we should be united.
TOM NELSON is a partner at Stinson LLP (formerly Leonard, Street and Deinard). He is a past president of the Hennepin County Bar Association.