A Lesson in Voting from Asst. Prof. Brian Owsley

October 30, 2020

Texas opened early voting on Tuesday, October 13.  Although this early voting was extended to accommodate turnout in light of the special circumstances, Governor Abbott refused to expand who was allowed to vote by mail.  More recently, he limited the number of boxes for voters to deliver mail-in ball to one per county.  In Harris County where Houston is, that means there is only one box for a county about the size of Rhode Island.

Originally, the United States Constitution provided the vote for neither woman nor people of color, most notably African-Americans.  It was not until 1870 with the enactment of the Fifteenth Amendment that it became unconstitutional to deny men the vote “on account of race, color, or previous condition of servitude.”  Woman had to wait another fifty years for federal constitutional guarantees of their right to vote when the Nineteenth Amendment barred denying people the vote “on account of sex.”

Of course, constitutional guarantees of the right to vote have not ensured that everyone is able to vote.  In the Jim Crow era, many African Americans in the south were prevented from voting by a number of means.  For example, states implemented poll taxes, which required anyone seeking to vote to pay a tax for the privilege.  Similarly, some states instituted literacy tests in which African Americans seeking to vote were tested to see whether they could read.  Even African Americans who could read were denied based on the choice of the reading test while illiterate whites were often allowed to vote.  Some states only allowed property owners to vote, which also disproportionately prevent African Americans from voting.  States implemented grandfather clauses that allowed people who failed literacy and property tests to vote if their fathers or grandfathers had voted prior to 1867.  Again, this test would disproportionately prevent African Americans from voting. 

In 1964, the Twenty-Fourth Amendment to the Constitution barred poll taxes in federal elections.  The Supreme Court extended this ban on poll taxes to state elections in 1966.  Many of the Jim Crow laws that prevented African Americans from voting were outlawed in the Voting Rights Act of 1965, including literacy tests.  These changes in laws and protections of the right to vote for African Americans let to increased voter registration and voter participation by African Americans throughout the South.  These changes came at a cost.  Protestors on the March from Selma to Montgomery were beaten by Alabama State troopers.  Others died in the struggle to ensure that all citizens could vote.         

Unfortunately, some of the techniques from the Jim Crow era still exist today.  Some states will purge voters from the rolls of registered voters often preventing them from voting until they registered again, but too late for the current election cycle.  Moreover, some states still prevent convicted felons from voting, which was designed to prevent African Americans from voting. 

As with other states, there were long lines at Texas early voting sites.  For example, there were waits as long as ten hours to vote at some polling places in Georgia.  In Texas, there were delays of three hours for some to cast their ballot.  It took me personally over an hour to vote in Dallas on the first day of voting.  Some of the delays may be related to pent up demand and voter exuberance.  The refusal to allow increased voting by mail, concerns about the postal delivery of mailed ballots, and the insistence on only one box to accept ballots per county seem designed to make voting harder.   Even with the difficulties of ballot restrictions and the pandemic, everyone needs to take steps to vote. 

Brian Owsley 

Assistant Professor of Law 

UNT Dallas College of Law