Vol. 15 No.2 (February 2005), pp.99-102

THE RIGHT TO VOTE:  RIGHTS AND LIBERTIES UNDER THE LAW, by Donald Grier Stephenson, Jr.  Santa Barbara, California:  ABC-CLIO, Inc., 2004.  453pp.  Cloth $55.00.  ISBN: 1-85109-653-1

Reviewed by Brian Pinaire, Department of Political Science, Lehigh University.  Email:  bkp2@lehigh.edu . 

A quote famously attributed to Josef Stalin tells us that “The people who vote don’t decide an election.  The people who count the votes do” (p.22).  Such a realpolitik assessment of the electoral process helps to remind us that rights are not self-enforcing in a democracy; they require structural supports, institutional initiatives, and a commitment to free and fair procedures as members of a polity participate in the project of citizenship. Donald Grier Stephenson, Jr.’s THE RIGHT TO VOTE starts from this general premise—that, at a conceptual level, rights in theory compel responsibilities in practice if the liberty advertised is to be actualized—but he also seeks to explicate the special nature and significance of voting rights (as opposed to gun rights, for example) as they have evolved in the United States. 

Stephenson is the Charles A. Dana Professor of Government at Franklin & Marshall College and is surely known to readers of this review for his longtime editing of a popular Constitutional Law casebook with Alpheus Mason.  Stephenson brings this background and his extensive research experience to bear in THE RIGHT TO VOTE, which is his addition to the “America’s Freedoms” series (of which he is the editor), a collection of books committed to addressing “the origin, development, meaning, and future of the nation’s fundamental liberties, as well as the individuals, circumstances, and events that have shaped them” (p.ix).  Other volumes in the series have included, for example, Ken Kersch’s excellent FREEDOM OF SPEECH, as well as contributions focusing on the freedoms of the press, religion, and association among others. 

Having perused a few of these volumes in the university library, it is worth noting that each contribution to the series seems to adhere to the same basic structure:  First, the reader is treated to a theoretical discussion of the nature of the freedom under consideration; then we are taken through an historical survey placing the issue in context and considering the origins of the debate; next, we find a review of some modern (20^th and 21^st century) examples and issues that ask us to apply lessons learned in the first few chapters.  The narrative section is followed by chapters entitled “Key People, Cases, and Events” (providing one or two paragraph descriptions of relevant legislation, rulings, individuals and movements, among other things) and “Documents” (including edited versions of US Supreme Court cases and relevant constitutional provisions).  And finally, the books offer appendixes providing a chronology, table of cases, and of particular note, a very helpful annotated bibliography that would serve as a good starting point for both undergraduate and [*100] graduate students embarking on more sustained research projects. 

In a “Preface” that sets out the major themes and arguments of this contribution to the series, Stephenson reminds us that “[t]he right to vote is a selective right because it does not apply universally across the population” (p.xx), as opposed to other freedoms protected by the Bill of Rights.  Indeed, he continues:

Even today, while one’s mere presence in the United States places an individual under the umbrella of a host of constitutional safeguards and enablements, the right to vote is not necessarily among them.  This is why access to the ballot—called suffrage or the franchise—was not always discussed in terms of a “right” at all.  Rather, people spoke of suffrage or the franchise in terms of the privilege of voting.  Voting was not seen as concomitant with one’s humanity or even with citizenship, as was true with many other rights.  Instead, access to the ballot was conferred on, or given to, an individual by those who already possessed it. (p.xxi)

Reasons for this selectivity, Stephenson argues, include the historical (as a nation we restricted the franchise from the start); a commitment to federalism (allowing states to set the terms); political tendencies of partisanship and the parties’ traditional role in regulating ballots; and ongoing debates over the particular qualities that should be required of voters (i.e. “good character,” a “stake in society”). 

Recognizing that “awareness of the flaws in an electoral system is as important as appreciation of its virtues” (p.30), Stephenson focuses in Chapter One mainly on how the franchise is defined and uses this discussion to connect to various institutions and processes in American politics and history that have shaped our conceptions of voting rights.  Chapter Two relies upon the previous chapter’s theoretical terms and traces the debate over voting rights from 17^th century England to late 19^th century America, setting the stage for the exploration of 20^th century issues in Chapter Three—specifically progressivism, the expansion of the franchise in terms of gender, race, and age, and the “thorny” (my bad pun, not his) nature of questions presented when courts venture into the “political thicket” of representation issues.  In Chapter Four, Stephenson considers issues already, and yet to be, confronted in the 21^st century, including majority-minority districts, “Motor Voter” legislation, BUSH v GORE, and felony disenfranchisement.  And finally, as noted above, the final two chapters survey the individuals, groups, cases, events, issues, and documents central to any discussion of both the idea and implementation of voting rights in America.

Throughout the book Stephenson presents a sympathetic but critical tone, realizing both the prospects and problems presented by voting rights.  We are, he notes after reflecting on 21^st century efforts both to expand and contract the franchise, a nation that has historically been both “blessed and cursed” (p.305) when it comes to protecting voting rights:  “blessed,” in essence, because of our promulgated commitments to freedom and self-government, but “cursed” because of our inability—or refusal—to instantiate such [*101] concepts and make good on the promises of the Contract. 

The prose is quite readable; the book is well organized; and the argument benefits from the author’s grasp of both the doctrinal implications of various cases and the significance of political institutions, interests, and ideas.  In sum, the book is a great resource.  In both its narrative component and in its compendium-quality, it accomplishes the task of addressing a complicated set of issues while remaining accessible to readers of general interest and college students of all ages and levels of sophistication.    

Professors teaching courses in the electoral process would surely be interested in this volume, but I could also envision using this book in a Constitutional Law course that has a section on voting rights, or more likely a Civil Rights & Civil Liberties course wherein students focus in-depth on certain problems.  In this regard, the book could be assigned alongside a more general casebook and serve the same function as many of the books do in the University Press of Kansas’s series, “Landmark Law Cases and American Society.”  The book could also work well as a supplement in basic American Government courses or seminars in Elections and Participation, Courts and the Political Process, or more introductory Law & Society courses.  The reader and potential course adopter should be made aware, however, that THE RIGHT TO VOTE has an institutional emphasis and does not delve into the wealth of social science studies of voting behavior.  

And, while this is not necessarily a criticism, an additional consideration regarding this book that deserves some discussion is the timing of its publication.  While this very well may have been something over which the author had no control, it would be nice if the book included a chapter or some commentary on Election Day 2004.  Coming out as it did in October of this past year, Stephenson is able to discuss the fallout from the 2000 election, the problems confronted in the mid-term elections of 2002, the passage of the “Help America Vote Act” (HAVA) and other remedies, and to some extent the primary season, but his coverage ends just before the most recent presidential election—an election marked by shockingly long waits in line, equipment malfunctions, controversies over exit polling, razor thin margins in “battleground” states, and various other systemic concerns relevant to the book’s larger theme. 

Especially because Stephenson devotes a good portion of Chapter Four to the promises of HAVA—correctly noting that the greatest change ushered in by this legislation “lies in the imposition of national standards for election administration” (p.288)—it seems that the book should have pursued the discussion through Election Day so as to evaluate the successes and failures of this reform effort.  Indeed, the reader will recall that, while HAVA did seek greater uniformity in standards, various state and local elections officials (i.e. Secretary of State Kenneth Blackwell of Ohio) differed in their interpretations of critical components of the bill, leading to uncertainty regarding such things as absentee and provisional ballots.  In the same regard, it would have helped to [*102] trace the controversies over criminal disqualification—or felony disenfranchisement—through the actual election, especially given that both the states’ ongoing misinterpretations and misapplications of their own laws (i.e. Florida) and the manner by which offenders are “barred from the vote” (Pinaire, et al. 2003) at the state level.  Finally, in light of Stephenson’s emphasis on the historical conception of voting as a privilege—as opposed to a right—in the United States, it would have been nice to see some discussion of post-election remedies that have subsequently received increased attention, such as Representative Jesse Jackson, Jr.’s proposed Right to Vote amendment to the federal Constitution or, short of that, more aggressive federal statutory efforts to minimize procedural machinations and to protect access to the polls for all Americans. 

On the other hand, a lasting message of THE RIGHT TO VOTE is that the United States is constantly in a game of “catch-up democracy” (p.307)—with the story of voting rights undergoing revision even while it is being told.  In this sense then, there is no best place to end the discussion.  Nor should there be. 

REFERENCES:

Kersch, Kenneth I.  2003.  FREEDOM OF SPEECH: RIGHTS AND LIBERTIES UNDER THE LAW.  Santa Barbara, California:  ABC-CLIO, Inc.   

Pinaire, Brian, Milton Heumann, and Laura Bilotta.  2003.  “Barred from the Vote:  Public Attitudes Toward the Disenfranchisement of Felons.”  30 FORDHAM URBAN LAW JOURNAL 1519-50.

CASE REFERENCES:

BUSH v GORE, 531 US 98 (2000).

************************************************************

© Copyright 2005 by the author, Brian Pinaire.