Election Law Professor David Schultz on Voting Rights
In this video, FindLaw's Richard Dahl interviews Election Law Professor David Schultz. Professor Schultz explains the history of voting rights, what voting rights are, and their significance. He also talks about the legal and practical challenges voters face today.
David Schultz is a professor of law specializing in election law at the University of Minnesota Law School and the University of St. Thomas, and a professor of political science at Hamline University in the Twin Cities. He is a nationally-recognized expert on government election law and author of over 30 books.
Richard Dahl: Once, you said that voting rights are the most important rights that we have. Why do you say that?
David Schultz: I say that because the right to vote is the right that protects all other rights that we have. It starts with being able to use the right to vote to protect the whole range of bill of rights and other protections that we deem important in a democracy.
Richard Dahl: Can you provide some background on how you came to develop an interest in election law?
David Schultz: I've been a political scientist for many years. I went back, later in life, to law school because I got interested in the topic.
Ever since I was an undergraduate, I was interested in the question of democracy and political participation. How do we ensure that people have a voice in their political system? And as I went through law school, I became interested in topics like Constitutional law. I became interested in First Amendment issues. And I really started thinking about, well, where, where in our Constitution does it talk about a right to vote? One of the things that I realized is that our original Constitution doesn't have language about voting rights, and doesn't talk about the right to vote, at least explicitly, and that's how it started, to understand the relationship between democracy and election law.
The way I describe it, election law is the body of law that puts democracy into action. And if that's the case, voting is a central component of election law. All about who gets to express their views, who gets to have input, who gets to have say over so many things.
It's really been a progression over many, many years in terms of thinking about that interrelationship between democracy, elections, and individual rights.
Richard Dahl: I think people would be surprised to learn that our Constitution says nothing about an actual voting right. Is that what your interpretation would be?
David Schultz: It is, and actually, when I teach my students, I sometimes start off by saying, “Well, help me find in the original Constitution where it says there's a right to vote.” And they'll kind of open it up and they'll flip through it, and they'll say, “Can't find it.” And I say, “I know you can't.”
“Why not?” they’ll ask.
Take us back to 1787. There were major disagreements at the Constitutional Convention over a whole host of issues. Some of us might remember the debates between the big states and the small states in terms of representation. Also, between the slave states and the free states. And these major disagreements basically pushed the Constitutional frameworks of 1787 to say well, maybe there are some issues we're not going to adjust at the federal level, but we're going to leave these as part of a state issue.
And that's exactly what happened.
In 1787, when the original Constitution was written, the framers basically had nothing in there about voting rights and left it up to the individual states to determine eligibility. Now, this is not a complete surprise, because remember, the United States was the first non-aristocratic government in the founder’s known world. The idea of saying people have the right to vote, that's a pretty radical idea even by those standards.
States got to decide who got to vote, but in the federal Constitution, we couldn't vote for the president. The electoral college did, and that's still true to this day. There's no right to vote for President of the United States, we don't have a right to vote for the Supreme Court, and in the original Constitution, there was no right to vote even for senators.
And in 1787, who could vote for what was left? As I like to tell my students, white, Anglo-Saxon, protestant males with money, which means they were property holders, and over the age of 21. And that's basically what the state laws said.
Richard Dahl: So in the absence of a mention of voting rights in the Constitution, what are the laws that govern voting rights in the U.S.?
David Schultz: Well, a couple of things have happened. First off, since 1787, we've undergone a pretty dramatic revolution (over about a 230-year period). Since that time, we have now adopted numerous Constitutional amendments. Amendments that gave freed slaves the right to vote. Then, women the right to vote. Then, a law that said we have a right to vote for senators. During the Vietnam War era, the voting age was lowered to 18 years old from 21.
So we have a whole host of Constitutional amendments that have sort of given us the right to vote.
If you actually read the language of the Constitution, it still doesn't say we have an affirmative right to vote. It says, for example, the right to vote shall not be denied on account of race or age or sex. It's kind of a negative right.
We also have the Voting Rights Act at the federal level that has guaranteed the right to vote and has protected the right to vote. And then there's been a whole bunch of Supreme Court decisions. Eventually, the U.S. Supreme Court has said that Article One, Section Two of the Constitution — which says the House of Representatives shall be composed of members chosen every second year by the people — guarantees us a right to vote at the federal level. The Supreme Court has also said the First Amendment gives us a right to vote at the state and local level.
So we threw a combination of Constitutional amendments through some judicial precedent interpretation. Through some statutory law, we've constructed something that looks like a right to vote, but still not in the way we would see in other countries, where it would explicitly say there's a right to vote.
Richard Schultz: There was a Supreme Court decision six years ago, Shelby County v. Holder, which undermined the Voting Rights Act, would that be fair to say?
David Schultz: Let's talk about what the Voting Rights Act did. The Voting Rights Act of 1965 was a major piece of legislation. And I say that because even though the 15th Amendment was adopted after the Civil War, supposedly to give freed slaves, at that time African Americans, the right to vote, we'd lived through a long era called the Jim Crow Era where states found a variety of ways of keeping African Americans from voting.
For example, the most explicit ones involved the Ku Klux Klan who lynched people who tried to vote. But then we also had things like poll taxes that said, well, you could vote if you paid a small fee. Or you had to pass a test to be able to vote. Or you could only vote if your grandfather could vote. So we had all these mechanisms in place that essentially kept African Americans from voting.
The 1965 Civil Rights Act basically put in place a series of legal mechanisms that dramatically expanded the ability of African Americans to vote by bringing the federal government in to enforce voting rights. And it was a tremendous success, no question about it. But in a famous Supreme Court decision from a few years ago, Shelby County v. Holder, the Supreme Court said that the formula used to determine which jurisdictions the Voting Rights Act could apply to was out of date, and struck it down as unconstitutional. And that was dramatic because it undercut one of the major enforcement provisions for arguably one of the most important voting rights protection mechanisms in the United States.
Richard Dahl: What has been the effect of that decision?
David Schultz: Well, immediately after that provision of the Voting Rights Act was struck down by the courts, we saw states try to strengthen their voter ID laws. We saw some states trying to make it more difficult to register, or close polling places, or trim back on other registration policies or other ways of facilitating voting.
We're in an interesting battle right now over voting rights in America. We've really got two traditions in the United States. One tradition that has been about the dramatic expansion of the right to vote, and to help more people be able to vote. But at the same time, there's been this kind of ugly underside of trying to prevent people, to suppress votes. The two major parties have, at various times in their history, engaged in doing that.
And we're in a struggle right now where, in many places in the United States, there are efforts to try to prevent certain people from voting, in part because our political system is so polarized. It's so closely balanced between the two major parties that affecting just a small number of votes can turn and change an election. Think about 2016. Had roughly 85,000 votes gone the other way in three states (Pennsylvania, Michigan, and Wisconsin), Hillary Clinton would be president of the United States, and not Donald Trump.
And without taking sides — I just merely mention — think about that. 85,000 votes is all it took in terms of moving an election from one way or the other. And look to see in 2020, it's going to happen again. A small number of votes are going to determine the next president.
Richard Dahl: I've heard people say that the voter ID laws are unconstitutional.
David Schultz: The voter ID laws were upheld by the U.S. Supreme Court back in a 2008 case called Crawford vs. Marion. Since then, a lot of states have adopted some voter ID laws. Some have been struck down if it can be shown — actually can be shown — that these laws place a severe burden on voting rights. And that's the standard that the court is looking at here.
The court's going to say that if a voting law is a normal administrative regulation, with the purpose of trying to, let's say, address voter fraud, or if its purpose is routine administration, then it’s constitutional. But if on the other hand, it places a severe burden and makes it difficult for people to vote, it's unconstitutional. That's what we've seen in the federal courts.
More importantly, many state courts are using their own state constitutions, and almost all state constitutions have an affirmative right to vote clause in there. If the voter ID laws act in such a way that make it a severe burden (make it too difficult to get, let's say, the requisite IDs, or requisite information you need to get your voter ID), the courts have been striking down some of those laws.
Richard Dahl: How valid are arguments that there has been voter fraud at polls?
David Schultz: For the most part, we're in what I call the Powerball zone. Here’s what I mean by that: We've got pretty good empirical data that says that your chances of showing that in-person voter fraud has overturned or has affected the outcome of an election are about the same as you buying a ticket and winning Powerball. And we've got repeated studies on this issue. This has been the subject of my research for years —looking at what do we really know about it? That the instances of in-person voter fraud (claiming that you're somebody else, trying to intentionally vote when you know you're not eligible to vote) is literally negligible in our system.
Just think about it from a big picture scenario. In a presidential election year, at our best, about 55% of the American eligible population shows up to vote for president. I was always fascinated with that. How do we reconcile the fact that barely half of us vote with this counterclaim that says people are willing to scramble to vote and commit a felony in order to be able to affect an outcome of an election? Those two images just don't fit together. And so we do have numerous studies and official reports that have largely debunked the voter fraud argument.
Richard Dahl: So why is it important to vote?
David Schultz: Why is it important to vote? Well, the other day, Someone said to me, “If you don't vote, that means you voted for the winner.” And I thought that was a really interesting line — that if you don't show up to vote, then automatically whoever won is essentially the person you voted for.
If you don't vote, you don't get a chance to have your say in terms of who's president, or senator, or representative. You don't get your ability to talk about who may be your city council member. If you don't vote, you lose the ability to be able to protect your own interests.
Remember, when we were still a British colony, we criticized taxation without representation. The British said, “Oh no, you have representation. You can't vote for your representative, but we, in England, can well speak for you.” I'm not sure how many of us think that somebody else can speak for us. The only way we can speak for ourselves is when we speak for ourselves, and when we cast our own votes.
And so, whether it's symbolic, whether it's a self-interest, whether it is civic duty, there's a whole host of reasons why we should vote. Even if you think it doesn't matter in one election, in a different election, your right to vote and your actual vote could influence and have an impact on the political process.
Richard Dahl: I know we're just about out of time here, but I wanted to ask one final question — about voter registration. Do you have any thoughts about how voter registration could be improved?
David Schultz: Well, sure. The best evidence we have is that states where people can show up on Election Day and register to vote have the highest voter turnout rates in the country, because it makes it easier for people to what? Show up and vote. It makes it easier for people who've just moved, for students who've just gone off to school, for people who have moved from one house or one apartment to another. The day of election registration is one of the absolute best ways to increasing voter registration and turnout, as is, we're seeing in the last few years, letting people vote early. That's helped a lot.
Now, I want to throw something else out here. My students always turn to me and say, “Well, it would be great if I could vote on my cell phone. It would be great if I could vote on my iPad.” And their question being, “Why don't we have digital voting?” And then I turn to them and I say, “How comfortable would you be with the idea that if you were voting online, it wouldn't be hacked by some hacker?” I don't think we're going to get to that point in the near future. So digital voting, online voting's probably not going to work. But early voting, day of election registration — those are great tools.