This post is a part of a series on Ask a Scientist
Heading into the election next month, it’s an opportune time to take a look at an issue that has been generating headlines over the past few months: voter suppression. The United States has long billed itself as the shining light for democracy around the world, but, as often is the case, reality fails to live up to the myth.
Our guide today is Adrienne Jones, an assistant professor at Morehouse College, a private historically Black men’s college in Atlanta. Jones, who teaches courses on politics, race and law, holds a Ph.D. in political science and a J.D. in law. Her doctoral dissertation, The Voting Rights Act Under Siege: The Development of the Influence of Colorblind Conservativism on the Federal Government and the Voting Rights Act of 1965, is currently being excerpted for journal publication.
The story begins 150 years ago with the 15th Amendment to the Constitution, which was supposed to guarantee all men 21 years and older the right vote, including men who were formerly enslaved. Congress passed it in 1869 and the following year it was ratified by the necessary two-thirds of the states, including the nine that made up the Confederacy.
Initially, African-American men in the South voted in relatively high numbers. In the 1880 presidential election, for example, a majority of eligible African-American voters cast a ballot in every Southern state except for two. Black turnout was equal to or greater than White turnout in eight Southern states.
After Reconstruction at the end of the 1880s, however, Southern states began implementing policies to suppress Black voters. One of the main ways they stifled the Black vote were poll taxes, which made it prohibitively expensive for many people to vote. Additional impediments included literacy tests, grandfather clauses, economic discrimination and violence.
The women’s suffrage movement in the United States, meanwhile, started in 1848. It took more than 70 years, but women finally won the right to vote when the 19th Amendment was ratified in August 1920. Only 10 states failed to initially ratify the amendment, and only one of those — Delaware — was north of the Mason and Dixon line. The other laggards were eight former Confederate states—Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina and Virginia — and one border state — Maryland.
Jim Crow prohibitions remained for Black voters after the passage of the 19th Amendment despite 15th Amendment promises. The right to vote was not truly guaranteed for Black women or Black men for another 45 years, when Congress passed the Voting Rights in 1965.
EN: Thanks speaking with us today. Let’s pick up the story in the 1960s, when Congress passed a succession of civil rights laws, including the Voting Rights Act. The civil rights movement of the ’50s and ’60s put a lot of pressure on the federal government to address serious wrongs, and that law was one of them. Why don’t you tell us a little bit why the Voting Rights Act was so important.
AJ: Okay. Congress passed the Voting Rights Act in 1965, which was the fourth of several civil rights acts it passed since the late 1950s aimed at addressing the fact that the nation, and in particular the Southern states, were not giving Black citizens the opportunity to register to vote and cast their ballots.
The civil rights acts of 1957, ’60 and ’64 were designed to enfranchise Black people. But none of them were successful, partly because the only real remedy for disenfranchised voters under those first three civil rights acts was litigation. That put the burden on the plaintiff voter who had been discriminated against or excluded, and that legal process can be expensive and it can take a very long time, so often even if the plaintiff gets relief from the court, the election in question is long past, so there might not be any real relief.
As a result, Martin Luther King Jr. and his colleagues begged President Lyndon Johnson to push Congress to pass a bill specifically focused on voting rights. Johnson was reluctant. He felt that he had done enough, given that Congress had passed the Civil Rights Act of 1964, which was quite difficult. He wasn’t sure he could get another civil rights act passed in such a short period.
But, the first voting rights march from Montgomery to Selma in March 1965 motivated Johnson. The events of Bloody Sunday, which were televised around the world, undermined the image of our democracy and encouraged the president to propose a voting rights bill that he and his attorney general had already been working on, which became the Voting Rights Act of 1965.
The Voting Rights Act had three main sections that you should remember: Section 2, Section 4 and Section 5. Section 2 basically repeats previous civil rights acts by providing plaintiffs the opportunity to sue states in the event that they are discriminated against. But Section 4 and Section 5 do some very special work.
Section 5 includes something called “preclearance,” which requires states that are covered by the section to submit new voting laws to the Department of Justice for review. That review, which would evaluate whether a proposed law would discriminate against Black voters, would take about 60 days, after which the Department of Justice would either “preclear” that law and allow the state to enact it, or object to the law, and ask the state to either revise it or simply not enact it.
Section 4 of the Voting Rights Act includes the formula that determines whether or not states are covered by Section 5. States where less than 50 percent of eligible Black voters were registered to vote in 1964, and states that had been using literacy tests and other Jim Crow tactics to keep people away from the polls, were subject to this formula. If states met this formula, which was designed to cover the former Confederate states, they would be responsible under Section 5 for making preclearance submissions to the Justice Department.
More than a quarter of a million new Black voters registered to vote in 1965, in part due to the Voting Rights Act, which also empowered the federal government to register people to vote. The law also enabled representatives of the federal government to observe polling stations to make sure that things are fair, provided criminal penalties in the event a state discriminated against voters, and gave states the opportunity to end their preclearance status if they exhibited good behavior for at least a decade.
As a result of the passage of the law, there was an incredible number of new Black voters. Black people were now not only able to register in states that historically had shut them out, but they also were able to cast ballots, and over the next 20 years, it meant a significant increase in the number of Black elected officials.
EN: Congress reauthorized the Voting Rights Act four times. In 2006 — the last time it reauthorized it — it reviewed thousands of pages of evidence showing that discrimination still existed. Both the Senate and the House voted overwhelmingly to continue the act for another 25 years. So, what happened? Shouldn’t the law be in place until 2031?
AJ: The original Voting Rights Act was intended as a temporary law that needed reauthorization. If parity between Black and White voters were achieved at the polls, then, presumably, Congress could let Section 5 lapse. Congress reauthorized the law with Section 5 four times.
In the mid-2000s, there was severe polarization in Congress and a number of states passed or were trying to pass voter identification laws limiting the kinds of IDs citizens could use to vote. These laws violated the spirit of the Voting Rights Act.
There was conservative opposition to all of the reauthorizations, but nonetheless, each one resulted in overwhelming roll call votes in favor. If you just looked at the roll call votes, you would never know about how much opposition there was to Section 5. And, in 2006, the pushback against reauthorizing the law was louder and more brazen than ever before.
In 2006, Voting Rights Act proponents produced an voluminous record showing that voting rights violations were still happening, and that the law was therefore still relevant. Despite the continued need for preclearance, conservatives objected to aspects of the bill on the floor. Nonetheless, the reauthorization still passed with overwhelming majorities in both houses of Congress. It was unanimous in the Senate. Proponents believed that in addition to the roll call vote, the hefty record they compiled would withstand any Supreme Court challenge, because it was clear that Congress was authorized and empowered to pass the bill that it did.
About a week after President Bush signed the bill, North Austin Municipal District No. 1 in Texas filed a challenge to Section 5, asking for it to be struck down. The district wanted to be excused from the preclearance requirement, which covered the entire state of Texas. Three years later, in what became North Austin Municipal District No. 1 v. Holder, the Supreme Court lifted Section 5 coverage for the district, even though it was in a state that was covered by the law.
The court did not strike the preclearance provision, but it spelled out in its decision a number of reasons it thought that the Voting Rights Act was no longer constitutional, essentially signaling to future plaintiffs that it might be willing to end preclearance. Not long after, another lawsuit challenging Section 5 of the law was filed. It changed everything.
EN: You’re obviously talking about Shelby County v. Holder. In an essay on the devastating impact of that 2013 Supreme Court decision, Atlantic magazine Senior Editor Vann Newkirk II wrote that it “handed the country an era of renewed white racial hegemony.”
AJ: That’s right. Plaintiffs did follow the Supreme Court’s directions. The first one was Shelby County, Alabama, which brought the second challenge to the Section 5 preclearance regime.
In Shelby, the court relied on the precedent from the North Austin Municipal District No. 1 v. Holder decision, saying two basic things. First, that Section 5 violates the equal sovereignty of states. The court essentially held that all states should be treated equally, so requiring only some states to preclear their voting laws with the Justice Department discriminates against those states. Second, the court concluded that the facts on the ground do not support reauthorization — that the Voting Rights Act had worked effectively in the states that it covered, so it is no longer necessary. Because the formula had not been changed significantly since 1965, the court characterized it as a 40-year-old law being applied today that we no longer need.
Justice Ruth Bader Ginsburg strongly opposed the decision, and she used a really great analogy in her dissent, which she read from the bench. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” she said, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Surprisingly, the court did not hold that Section 5 was unconstitutional. Instead, it struck down Section 4, the preclearance coverage formula. This meant that even even though the Section 5 preclearance provision is still a part of the Voting Rights Act, it has no work to do, because no states or jurisdictions fall under the Section 4 formula. Therefore no states are required to send their proposed new voting laws to the Department of Justice for vetting.
EN: So, what happened after the Shelby County decision?
AJ: After the Shelby decision, there was an explosion of state voter ID and similar laws, as well as other initiatives to keep people away from the polls. We saw states getting more serious about closing polling places, particularly in Black and Brown neighborhoods. We saw more intense purges of voting rolls. In a state like Georgia, where I live, authorities have been using something called “exact match.” If your name doesn’t exactly match the name on your ballot, which could be simply a clerical error, you may not be able to vote. So, if your last name is O’Donnell, for example, and the apostrophe is missing, you are out of luck.
The barriers erected before and after the Shelby decision are based on the rationale that they protect against voter fraud. Voter fraud is not a significant issue in the United States, a fact has been proven repeatedly by investigations on both sides of the political aisle.
Even so, the idea that we need to protect against voter fraud continues to hold sway. Right now, there are numerous lawsuits in play challenging recent voting rules changes that facilitate voting by mail. The lawsuits are contesting whether early voting should be extended, voters have to have witness signatures to validate mail-in ballots, and deadlines for ballot submission should be extended past election day.
There also are concerns about polarization and racial tension leading to violence at the polls. There’s a tense atmosphere after a summer of protest, and of course we’re in the middle of a pandemic, so voting by mail is extremely important this election season.
EN: The Shelby County decision left it to Congress to come up with new criteria for coverage. What are the prospects for that happening?
AJ: A couple of bills have been introduced since 2013, but they have not made it to the Senate floor. The death of John Lewis, who was brutally beaten in 1965 while demonstrating for voting rights in Selma, renewed a push by Democrats and civil rights activists to reinstitute the Voting Rights Act’s preclearance requirement and name the new bill in his honor.
But it’s highly unlikely in this polarized environment, where the president is about to seat a new Supreme Court justice just after the death of Justice Ginsburg, that proponents in Congress will be able to put the teeth back into the Voting Rights Act.
EN: What recourse do folks who are unhappy about this state of affairs have? What can be done to push back on this reversal of voting rights?
AJ: People need to get out and vote in large numbers so that the election outcome is clear and — for the sake of voting rights in the future — we get a change of leadership in Washington, one that will respect voting rights.
EN: Until that happens, it reverts back the way it was before the Voting Rights Act was originally passed back in 1965? In the future, lawsuits filed by individuals and organizations like the ACLU and NAACP regarding election discrimination might not be decided fast enough to have an impact, right?
AJ: That’s true. Like it was before the Voting Rights Act, the burden will be once again on the voter who was discriminated against or excluded to make a case in court. Even if the court eventually sided with the plaintiff, the election would have been long over. On top of that, dozens of conservative judges have been appointed to the bench over the past few years, so voting rights cases may be harder to win going forward.
EN: I guess people are going to have to put on their marching shoes again.
AJ: Yes. They might have to do that. People are going to have to push for fair voter protection legislation at the federal level and in their states and definitely make sure that they vote. What happens in November will make a huge difference for voting rights over the long run.
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