The Way We Vote: The Local Dimension of American Suffrage

3. “To Promote the Exercise of That Right”: The Twentieth Century

72 3 “To Promote the Exercise ofThat Right”: TheTwentieth Century There is probably no other phase of public administration in the United States which is so badly managed as the conduct of elections. Every investigation or election contest brings to light glaring irregularities, errors, misconduct on the part of precinct officers, disregard of election laws and instructions, slipshod practices, and downright frauds. Joseph Harris (1929) We never pay any attention to election laws. Anonymous Georgia justice of the peace with fifty years’ election-administration experience, quoted by V. O. Key (1949) The Congress finds that (1) the right of citizens of the United States to vote is a fundamental right; (2) it is the duty of Federal, State, and local governments to promote the exercise of that right. National Voter Registration Act (1993) Nineteenth-century federal interventions in election law altered how and when Americans voted, erected supervisory regimes that endured for decades , changed the constitutional text itself (with the Reconstruction Amendments), and strengthened doctrines interpreting older text (particularly the Elections Clause) in a way that would provide crucial support for later statutes. State legislative and constitutional changes altered the formal boundaries of the franchise and required secrecy in voting. Yet unlike the developments of the twentieth century, these changes were relatively scattered, and many were reversed or abandoned after partisan or doctrinal shifts. By contrast, twentieth-century voting-rights laws have self-consciously built on each other, placing the national government in at least a loose supervisory role over most nuts-and-bolts elements of voting. National authority over the “To Promote the Exercise of That Right” 73 mechanics of suffrage has unmistakably expanded, as has the federal government ’s underlying conception of its own role in elections: “to promote the exercise of that right,” as the National Voter Registration Act of 1993 says. Yet as that same statutory sentence makes clear, the national government still shares that responsibility with “State and local governments.” So, while the twentieth century clearly tells a tale of continuing reform and accumulation of national authority over election administration, it is a story of uneven and gradual accretion, rather than one of clear, durable shifts in which both practical institutional power and underlying constitutional theory are transformed. Indeed, many specific aspects of the electoral process receiving most attention today—registration, record-keeping, facilitating participation by disabled voters, and the consistent imposition of formal voter-qualification rules, for example—have actually been subject to repeated federal legislation. Voter Registration, the Elections Clause, and V. O. Key’s America If the twentieth century concluded with a generation of statutory centralizations of election-supervision authority, the major reform of its early decades tugged in the other direction. For even as state governments asserted their ability to structure the voting process itself by enacting Australian-ballot requirements, many states enacted voter-registration laws that had the opposite effect. As the National Commission on Federal Election Reform said in 2002, the adoption of mandatory voter registration in most states would bring about “a new decentralization of power to determine the eligibility of voters , devolving from state governments down to the local and county governments that managed this process and maintained the rolls.”1 Even where state government had acted to harmonize voting rules, voter qualification was as a practical matter almost entirely at the discretion of local officials.2 Local decisions could take colorful forms: until at least the late nineteenth century, it was quite common for the legal test of a voter’s residency to be “where he had his washing done.”3 Few states outside New England required registration prior to the Civil War, and from 1860 to 1880, older northern states enacted requirements applying only to large cities. Federal courts ruled that such distinctions were constitutional, as there was no requirement of uniformity in registration laws.4 Western and southern states followed between 1880 and 1900, and registration procedures came under new scrutiny in the early twentieth century .5 Vulnerabilities to fraud had been addressed by in-person registration, 74 The Way We Vote limited-enrollment policies that enabled voters to register only a few days per year, a house-by-house canvass, annual purges of the rolls, and required identification at the polls.6 By the 1920s, many advocates saw these systems as “expensive , cumbersome, and inconvenient,” as well as overly exclusionary, and advocacy for reform was widespread.7 As a study produced...