Allan J. Lichtman

Opinion contributor

In 1835, William Fogg, an African American citizen of Pennsylvania, filed America’s first voting rights lawsuit. He charged that election officials had violated the state’s color-blind constitution by barring him from voting because he looked black. The Pennsylvania Supreme Court rejected Fogg’s claim in 1837 by writing black people out of American democracy. The court ignored the state constitution and found that “no coloured race was party to our social compact,” and that Pennsylvania should not “raise this depressed race to the level of the white one.”

A year later, Pennsylvania adopted a new constitution which followed the trend in most nineteenth century states by excluding people of color from the ballot. In 1800, only five of 16 states mandated “white only” voting. By 1860, 28 of 33 states, accounting for about 97 percent of the nation’s free black population, had adopted such racially restrictive suffrage. All states denied women from the franchise. Backers of voting by white men only claimed without evidence that racial and gender exclusion guarded against voter fraud by preventing unscrupulous politicians from buying the votes of allegedly dependent women and ignorant blacks.

Voting rights expand and contract over time

Fogg and other excluded voters had no recourse to the federal courts because the framer’s great mistake was their failure to include a right to vote in the Constitution or the Bill of Rights. Instead they defaulted voting rights to the individual states. Later generations of lawmakers compounded this mistake by negatively framing amendments on voting rights, stipulating that states cannot deny the franchise on account of race, sex, or age of 18 years and older.

Lacking a constitutional guarantee, the vote has been embattled throughout American history. Voting rights have both expanded and contracted over time, with no guarantee of universal access to the ballot.

The right to vote remains imperiled today. Players in the struggle for the vote have changed over time, but the arguments remain familiar, and the stakes remain high. Primarily in Republican red states, politicians have rolled out the old charge of voter fraud. Today’s allegations focus not on vote-buying but on such charges as voter impersonation at the polls, repeat voting in more than one state, and voting by non-citizens.

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Yet, study after study has demonstrated that such voter fraud is vanishingly small in recent elections. Even an analysis by the National Republican Lawyer’s Association aimed at uncovering as much voter fraud as possible found only 311 cases of voter fraud of any kind nationwide from 2000 through 2012, out of many hundreds of millions of ballots cast.

The real problem with voting today is not fraudulent voting but the suppression of voting by otherwise eligible American citizens. Through such modern-day devices as stringent voter photo ID laws, draconian purges of registration rolls, the disenfranchisement of former felons and restrictions on the opportunity to register, state governments — almost all of them dominated by Republicans — have robbed millions of Americans of their right to vote.

Republicans are adopting voter restrictions for reasons of hard politics. The party’s base of older white Christian voters is the most shrinking part of the electorate. The GOP cannot manufacture more of these voters, but it can attempt to restrict turnout by the rising Democratic base of racial minorities and young people. America is moving toward two separate democracies: a more restrictive one for red states and a more expansive one for blue states.

Republicans restrict voting to win elections

Voting rights are further imperiled by political and racial gerrymandering, which nullify the effect of people’s vote by pre-determining the outcome of legislative contests. In Pennsylvania, for example, a Republican state legislature engineered a 2011 gerrymander of congressional districts that netted their party 72 percent of seats in 2012, despite winning only 49 percent of the statewide two-party congressional vote.

The Voting Rights Act of 1965 enfranchised many millions of excluded Americans. But in 2013, the U.S. Supreme Court struck down the Act’s most effective provision, which required states and localities with a history of voter discrimination to preclear changes in voting laws and procedures with the U.S. Department of Justice or the Federal District Court in D.C. Minorities have pursued litigation under other provisions of the Act, but face headwinds from a conservative majority on the U.S. Supreme Court.

Ironically, voting rights plaintiffs may find success by turning again to the state courts. Unlike the U.S. Constitution, most state constitutions guarantee some form of voting rights. In 2018, the Pennsylvania Supreme Court that had rejected William Fogg’s voting rights suit in 1937, struck down the state’s congressional gerrymander and adopted a fair map for the 2018 elections.

Ultimately the future of voting rights depends on the will and the activism of the American people. Americans must look past the smokescreen of voter fraud and demand opportunities to register and vote without undue restrictions. Despite the lack of a federal constitutional guarantee, the right to vote remains the bedrock of all other rights in a democratic nation.

Allan J. Lichtman is Distinguished Professor of History at American University in Washington, D.C. and author of "The Embattled Vote in America: From the Founding to the Present." Follow him on Twitter: @AllanLichtman