The federal courts have been called upon throughout U.S. history to define and protect voting rights and the rights of individuals and organizations to participate in the electoral process. Many early cases dealt with efforts to expand suffrage to formerly excluded groups, or to combat attempts to keep enfranchised voters from the polls. Later cases have addressed Congress's efforts to regulate campaign finance, especially where these efforts threaten to abridge First Amendment free speech rights.

Issues addressed in these cases include:

• Woman Suffrage
• Literacy Tests
• Race and Primary Elections
• Reapportionment and Redistricting
• Poll Taxes
• Campaign Finance Reform and the First Amendment
• Vote Recounts
• Campaign Finance Reform and Soft Money
• Campaign Finance Reform and Issue Ads

United States v. Susan B. Anthony (1873) - Woman Suffrage

This trial marked an important step in the movement for women's voting rights. Advocates had hoped to obtain a federal court ruling that women had a right to vote, and this trial was a major event in the struggle for woman suffrage.

Susan B. Anthony was arrested after voting in the 1872 election in Rochester, New York, in violation of a law that did not allow women to vote. She went to trial in June 1873 in the U.S. Circuit Court for the Northern District of New York, with Supreme Court Justice Ward Hunt presiding. Her attorneys argued that the Fourteenth and Fifteenth Amendments protect a citizen's right to vote as one of the "privileges and immunities" of citizenship, and that, as a citizen, Anthony had voting rights. The prosecution argued the privileges and immunities protected by those amendments had never been understood to include a right to vote.

Justice Hunt directed the jury to return a verdict of guilty. He ruled that sates still retained the right to determine who was eligible to vote in their state, with the exceptions explicitly listed in the 14th and 15th Amendments based upon race, color, or previous condition of servitude. Hunt cited recent Supreme Court decisions that divided citizenship into state and federal categories, and determined the amendments protected privileges and immunities related to federal citizenship. Since voting was a state privilege, the federal courts were not allowed to touch the issue.

This ruling was a defeat for those who hoped to gain woman suffrage through a federal court ruling. A year later, the Supreme Court ruled there was no right for women to vote. After these setbacks, the suffragists turned to a new plan: to pass a constitutional amendment guaranteeing women the right to vote.

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Guinn v. United States, 238 U.S. 347 (1915) - Literacy Tests

In Guinn, the Court considered the constitutionality of a "grandfather clause" in Oklahoma's state suffrage statute. The clause imposed a literacy test upon voters if they could not prove they were a lineal descendant of a person able to vote prior to January 1, 1866. The U.S. government, on behalf of disenfranchised black voters, claimed the grandfather clause's exception to the literacy test was imposed in violation of the Fifteenth Amendment's protections against the abridgment of suffrage rights on the basis of "race, color, or previous condition of servitude."

This case, decided in 1915, addressed the legacy of the period Reconstruction that followed the Civil War. During Reconstruction, many radical changes to American life occurred, including the Fifteenth Amendment's granting of suffrage rights without regard to race. Many southern states resisted these changes, especially black suffrage, which threatened the white supremacist political power structures of many southern states.

The "grandfather clause" at issue in Guinn attempted to continue racial discrimination at the polls by prohibiting potential voters from casting a vote if they were themselves unable to vote prior to the passage of the Fifteenth Amendment, or if they were the lineal descendant of such a person, unless they were able to pass a literacy test. Such a test essentially excluded illiterate black voters whose forefathers were almost certainly slaves, while allowing the votes of illiterate whites whose forefathers were able to vote prior to the passage of the Fifteenth Amendment.

The Court held that the fixing of a standard based upon the date January 1, 1866 could only be interpreted as imposing the same conditions on voting in the present as those which existed prior to the passage of the Fifteenth Amendment. This standard therefore perpetuated the malignant condition the Amendment sought to remedy, and was unconstitutional. As a result of this holding, grandfather clauses in other southern states were also repealed.

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Smith v. Allwright, 321 U.S. 649 (1944) - Race and Primary Elections

The Texas legislature passed a bill forbidding anyone other than white Democrats from participating in a Democratic primary, and the Texas Democratic Party passed a resolution to the same effect. Lonnie Smith, a black man, was rebuked by election judges and forbidden from casting a ballot in the 1940 Democratic primary.

Finding for Smith, the Supreme Court held that Texas's discriminatory scheme violated Smith's constitutionally protected voting rights because he was denied the ability to cast a ballot due solely the of the color of his skin.

The Court decision turned on whether voting rules in primary elections were a state action bound by constitutional protections, or simply private action free from such restriction. In Grovey v. Townsend, 295 U.S. 45 (1935), the Court had permitted Texas to exclude blacks from primaries, on the basis that a resolution of the Texas Democratic Party fixing the qualifications for its own membership was a private action. Overruling Grovey, the Court decided that because the primary had become an obligatory element of the electoral machinery in Texas, primary elections were intrinsically tied to the general election where constitutional protections apply. Therefore, the same constitutional protections applied in primary elections, even though they were run by private entities (the political parties). Texas's whites-only primary system therefore violated the Fifteenth Amendment's prohibition of discrimination based on race and was unconstitutional.

In the wake of this decision, primary systems were forced to open their elections to black voters. Although the use of poll taxes, literacy tests and other strategies continued to prevent blacks from fully exercising their voting rights, this case paved the way for future landmark civil rights cases by establishing the "public function" concept through which private entities are held to the same constraints as the state when performing a state function.

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Baker v. Carr, 369 U.S. 186 (1962) - Reapportionment and Redistricting

This case considered whether apportionment and redistricting of legislative districts is a subject only for state legislatures or if the courts also have a say.

Despite an almost fourfold increase in the number of eligible voters and a demographic shift which left urban areas underrepresented, Tennessee did not reapportion the distribution of state legislators between 1901 and 1961. The main question the Supreme Court addressed in this case was whether federal courts had the authority to decide an issue that would affect a state's internal voting procedures. Previous cases had held that this was a "political question" fit for legislatures and not the courts. In this case, the Court held that apportionment was not strictly a "political question" when people's rights under the Fourteenth Amendment's Equal Protection Clause were at stake.

A series of reapportionment cases followed, culminating in Gray v. Sanders (1964). Here the Court announced its "one person, one vote" principle, requiring that districts had to be based on population size. As a result, the U.S. experienced a shift of political power from rural to urban areas. Many states were forced to redraw their legislative districts.

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Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) - Poll Taxes

This case considered whether poll taxes in state elections are Constitutional.

Prior to the Harper decision, the Twenty-Sixth Amendment was passed prohibiting poll taxes in federal elections. The amendment was not, however, considered to extend to the states. In Harper, the Supreme Court held that poll taxes imposed on state elections violated the Equal Protection Clause of the Fourteenth Amendment.

The Court explained that states can limit who votes based on qualifications relevant to participation in the electoral process. Qualifications based on the ability to pay a tax, however, amount to "invidious discrimination." Wealth, the Court explained, is like race or religious beliefs: irrelevant and unconnected to one's ability to participate intelligently in elections. Thus, Virginia had violated the Equal Protection Clause by requiring voters to pay a poll tax before voting in state elections.

This decision was significant in several respects. Equal Protection Clause decisions have never expressly categorized the poor as a special class protected by the Constitution, yet this decision comes close to doing just that. This case also established an important framework for defining Equal Protection Clause rights with respect to other voter qualifications. For example, in a 2008 decision, Crawford v. Marion County Election Board, Justice David Souter argued that the costs of time, travel, and document acquisition to satisfy a voter identification law in Indiana exceeded the costs of the poll tax struck down in Harper.

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Buckley v. Valeo, 424 U.S. 1 (1976) - Campaign Finance Reform and the First Amendment

This case considered what limits the First Amendment imposes on campaign finance reform efforts.

In response to political corruption, specifically the Watergate scandal, Congress passed a bill limiting not only campaign contributions to candidates, but also individual expenditures that could be made in relation to a political candidate. The main question for the Supreme Court was whether these limits violated the First Amendment's right to free speech. The Court held that limits with respect to campaign contributions did not violate the Constitution, but the limits on personal expenditures did violate an individual's First Amendment rights.

The Court's decision focused on two factors: the severity of First Amendment infringement, and the presence of a governmental interest. Since contribution limits to a political campaign-simply a general expression of support for a candidate-do not infringe significantly on the individual's right to free speech and can be directly tied to a governmental interest in curbing corruption by "buying influence" with a candidate, they do not violate the Constitution. Expenditure limits, however, would inevitably limit the quantity of expression by effectively limiting the often expensive use of the mass media to reach one's audience. This represented a "substantial restraint" on First Amendment rights. Moreover, there was not the relation between the restraint and a governmental interest was less clear in the case of expenditures.

The decision was controversial because it involved overturning legislation aimed at limiting the money flowing toward politicians. Money is central to every political candidacy, and overturning expenditure limitations opened a back door for funding political campaigns. This decision allowed for unlimited spending of "soft money" for campaigns as long as the campaign itself is not directly running the ads. This has led to the proliferation of groups such as "Swift Boat Veterans for Truth" and "MoveOn.org", which have had a significant impact on recent elections. This decision also set the framework for subsequent campaign finance legislation such as the McCain-Feingold Act.

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Bush v. Gore, 531 U.S. 98 (2000) - Vote Recounts

George W. Bush, the Republican presidential candidate, and his running mate Dick Cheney sought an emergency injunction from the United States Supreme Court to prohibit a manual recounting of votes cast in Florida during the 2000 general election. Republican success in obtaining the injunction would secure the already certified Republican victory in Florida, while a loss would allow a manual recount to continue. The recount could result in a Democratic victory and give the Democratic presidential candidate Al Gore and his running mate Joseph Lieberman the electoral votes they needed to win the national election.

Following an extremely close election in Florida, the Florida Supreme Court ordered a manual recount of so-called "undervotes," involving the infamous "hanging chad" and other voting irregularities. The U.S. Supreme Court granted certiorari. A majority of the Court determined that Florida's method of electronically counting ballots through a machine-tally, while evaluating "undervotes" through a manual process, would result in an arbitrary and disparate treatment of votes in violation of the Fourteenth Amendment's Equal Protection Clause. For example, if voters "undervoted" by failing to fully signify their intent (e.g., leaving a hanging chad on their ballot), their vote could be scrutinized manually and counted as a vote. On the other hand, voters who "overvoted" (e.g., mistakenly marked both Bush and Gore on the ballot) would have their vote discarded in the machine-count process. Because there was not a uniform system for determining voter intent in both "undervote" and "overvote" situations, the proposed manual recount of "undervote" ballots violated the Equal Protection Clause by treating voters and their votes differently, despite similarly ambiguous cases of voter-intent. The majority also held that no remedy could occur with the statutory time constraints of the election. As a result, he Republican victory in Florida was secured and the Bush-Cheney ticket won the national election.

Several justices wrote dissenting opinions. They argued that the Supreme Court's review of the Florida Supreme Court was improper because the Constitution gives the states the authority to determine how its electors are appointed in presidential elections, and it is the practice of the Supreme Court to respect the ruling of a state's highest court on a matter of state law. Dissenters also criticized the majority's refusal to allow Florida to amend its manual-recount plan to conform with the Fourteenth Amendment as being overly harsh and an intrusion by the court into the legislative process of selecting the president.

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McConnell v. Federal Election Commission, 540 U.S. 93 (2003) - Campaign Finance Reform and Soft Money

This case addressed the constitutionality of the Bipartisan Campaign Reform Act of 2002 (BCRA), commonly known as the McCain-Feingold Act. BCRA aimed to restrict the use of soft money donations and so-called "issue ads." Issue ads aim to persuade voters' opinions in an election, but do not expressly ask voters to vote for or against a particular candidate.

The Supreme Court upheld BCRA's major provisions, primarily on the basis of the government's legitimate interest in preventing corruption or the appearance of corruption in politics. In assessing how BCRA's restrictions on campaign contributions affect First Amendment rights, the Court rejected a "strict scrutiny" standard of review that presumes the unconstitutionality of a provision that restricts a constitutional right. Instead, it adopted a less rigorous standard of review, similar to the standard used in Buckley v. Valeo, which gives deference to Congress's expertise in crafting provisions that must balance competing constitutional concerns. The Court determined that evidence of soft money campaign contributions adversely affecting the electoral process (e.g., by giving donors increased access to politicians) would allow "closely drawn" restrictions on these contributions to pass a First Amendment challenge. The Court also upheld the provision of BCRA related to political advertising. Here the Court accepted the argument that the substance of an ad, regardless of whether it explicitly endorses a candidate, is what matters for determining whether the ad is essentially a campaign contribution that Congress may legitimately restrict.

Justice Kennedy dissented, arguing that only "quid pro quo" corruption could warrant a restriction of this kind on campaign contributions protected by the First Amendment. Justice Scalia also dissented, describing the Court's decision as a "sad day for the freedom of speech."

This decision upheld Congress's efforts to close the soft-money loophole that had been greatly exploited prior to the passage of BCRA. The decision regarding "issue advertising" would be revisited in Federal Election Commission v. Wisconsin Right to Life, Inc.

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Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S.___(2007) - Campaign Finance Reform and Issue Ads

This case revisited the holding in McConnell v. Federal Election Commission, which upheld the ban on the airing of "issue ads" during a particular time period leading up to an election under the Bipartisan Campaign Reform Act of 2002 (BCRA; also known as the McCain-Feingold Act). In this case, the Court determined whether BCRA's restrictions should apply to issue ads that did not advocate for or against a candidate.

Wisconsin Right to Life, Inc. sued the Federal Election Commission, seeking relief to allow them to air, within the "blackout" period before an election, three ads urging voters to contact their Senators regarding a filibuster of federal judicial nominees.

The Court held BCRA unconstitutional as applied to Wisconsin Right to Life's ads. Determining that these were genuine issue ads, not express advocacy for or against a particular candidate, the Court upheld Wisconsin Right to Life's right to speak through such ads as a legitimate interest that was not overcome by the government's interest in preventing the corrupting influence of corporate or soft money in politics. BCRA's provisions could restrict an issue ad only if there was no reasonable interpretation of the ad except as express advocacy for or against a candidate.

This decision created an exception to the BCRA rule, upheld in McConnell v. FEC, that political ads funded by corporations may not be aired for a specific time period prior to an election. The decision also departed from the McConnell decision in applying a "strict scrutiny" standard to restrictions on First Amendment-protected political speech. Strict scrutiny means that an act of Congress will be upheld only if it serves a compelling government interest and the act in question has been narrowly tailored to further that interest.