The Ghost of Jim Crow

Left: the March to Washington, 1963. Right: an ACLU voting rights protest (Source: aclu.org)Left: the March to Washington, 1963. Right: an ACLU voting rights protest (Source: aclu.org)

As with so much of America’s politics, the issue of voting rights cannot be disentangled from that of race. Black and other minority communities are still at the forefront of the voting rights struggle. Indeed, it is arguable that the best testimony to the importance and fragility of voting rights in the United States, is the history of African-Americans.

As one might expect, the first black congressperson, Senator Hiram Rhodes Revels, was elected only after the Civil War in 1870, and a century after the United States was founded on the promise that ‘all men are created equal’. Dozens of African-Americans entered Congress for the first time during Reconstruction period of 1863-1877, in which the federal government attempted to transform and rehabilitate the former Confederate states. But then their number began to peter out. Even by 1901, the Southern United States had had no black representatives, despite being home to 90 per cent of the black population. One century of disenfranchisement was swiftly followed by another – there would be no more Southern black members of Congress until 1972. North Carolina, South Carolina, Virginia, Alabama and Florida would only elect black representatives again in 1992.

The 15th amendment, ratified in 1870, forbade disenfranchisement of men on the basis of race or previous servitude. Yet this did not stop black political power evaporating by the end of the century. With the recapture of political power in the South by whites, racial disenfranchisement was de facto reestablished. A complex system of Jim Crow laws, (named after a caricatured black character from a minstrelsy show), were designed to disqualify African-Americans from voting, if not explicitly on grounds of their ethnicity. Literacy tests, poll taxes, all white primaries and straightforward intimidation, meant African-Americans were once again deprived of their vote. Jim Crow was a brutal demonstration that the nominal right to vote is nothing without fair access to the polls.

Although Jim Crow has been dismantled by the courts and Congress, voting rights find themselves threatened again, and once more it is the rights of the poor and minorities which are under attack. Gerrymandering, as a previous Globalist article explored, has corroded the representation of ethnic minorities, but this is only one facet of the attempted dilution of the political power of black and Latino communities. The rules surrounding when, where, and how voters can cast their ballots are also specifically drafted with the goal of suppressing minority turnout.

Shelby County v. Holder

Two things were required for this renewed assault on voting rights: a desire to stop particular groups from going to the polls, and the ability to do so. Although there has until recently been bipartisan consensus for the protection of voting rights, (George W. Bush reauthorised the Voting Rights Act (VRA) in 2006 with overwhelming support from both parties), the increasing polarisation of American politics has encouraged political tactics previously seen as out of bounds. As minority voters significantly favour the Democratic Party, the GOP has been supplied with a powerful incentive to prevent such voters casting their ballots.

As for the means to sabotage voting rights, since 2010 the GOP has enjoyed massive majorities in state legislatures across the country, but until recently the Voting Rights Act had prevented Republicans from enacting discriminatory voting measures. In 2013 that changed. The conservative majority on the Supreme Court with its decision in Shelby County v. Holder, gutted the VRA. The case concerned a challenge from Alabama to the constitutionality of Section 4b of the Voting Rights Act. The VRA, passed under Lyndon Johnson in 1965, and amended in 1982, outlawed in Section 2 any voting law which has discriminatory effects against racial or language minorities. However, by far the most effective measure to reduce voter suppression was the ‘preclearance’ requirement of Section 5. Section 5 required that jurisdictions who had historically enforced discriminatory laws be subject to ‘preclearance’, meaning any changes to their voting laws had to receive federal approval. If the attorney general or a federal panel saw a potential for discrimination, the measures had to be dropped. Section 5 prevented such laws from even passing and so exercising a malicious influence in the first place, and equally avoided forcing plaintiffs to pursue expensive legal action against the state.

The VRA was astoundingly successful at reducing voter suppression; in Mississippi in 1964, only 7% of African-Americans, who comprised roughly 40% of the state population, were registered to vote. By 2004, this had risen to 76%. The Court decided on a 5-4 split, however, to strike down the ‘coverage formula’ of the VRA, which determined which jurisdictions had to pass preclearance. Although the preclearance requirement was technically preserved, it no longer applied to any jurisdictions at all.

Chief Justice John Roberts, who was appointed to the court by George W. Bush, argued in the majority opinion that the coverage formula was based on outdated evidence of racial bias in voting laws in Southern states. The situation had now sufficiently improved such that to single out Southern states was to violate the ‘equal sovereignty’ of states. Justice Ruth Bader Ginsburg, leader of the liberal wing of the court, argued in her dissent however, the reduction in voter discrimination in the South was not due to a newfound reluctance to discriminate against minorities, but rather the VRA itself preventing such discrimination. As Justice Ginsburg commented ‘[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.’ And she has surely been vindicated. In the wake of the Shelby decision, a flurry of discriminatory voting laws have been enacted by GOP-controlled legislatures in Southern states. It is a bitter irony that that court which in the 1950s and 60s played a key role in advancing the civil rights of African-Americans with decisions such as Brown v. Board of Education (1954), which outlawed school segregation, has now played an instrumental role in unleashing a torrent of racially tainted voter suppression.

Voting Rights after Shelby: North Carolina’s Voter ID law

North Carolina, whose state legislature was taken over by Republicans in 2010 for the first time in over a century, has enacted particularly aggressive voting laws, a development particularly well-reported on by William Wan in the Washington Post. In the 1990s, North Carolina went from the state with the 43rd worst turnout in elections to the 11th best, with a particular increase among African-American voters. This came after Democrats, especially black lawmakers such as Rep. Henry Michaux, had introduced various measures such as same-day voter registration and allowing early voting. After Shelby, Republicans leapt at the chance to shred these provisions, with preclearance no longer providing a barrier. Early voting which is used especially by African-Americans was slashed in half, notably cutting off a Sunday when black churches ran ‘Souls to the Polls’ programs to ensure their congregations voted. Same-day registration was scrapped, as was out of precinct voting. The new law prevented sixteen and seventeen-year olds from pre-registering to vote at school and prohibited counties from keeping polls open after regular hours in the event of long lines.

On top of all this came what was perhaps the most egregious provision of all: the new voter ID rules. GOP lawmakers painstakingly collated data on which ethnic groups had which IDs, and then introduced a requirement that voters have ID when casting their ballots, but excluded forms of ID disproportionately owned by minorities. African-Americans are more likely to be in poverty than other communities, meaning the cost of acquiring new ID, and the time needed to wade through the bureaucracy to acquire one, are simply not luxuries many minority voters can afford. The ID law had languished in the State Senate while Shelby was before the Supreme Court. A few weeks after the decision the ID law, supplemented with the new provisions concerning early voting, was passed. There had only been twenty minutes of public hearing on the law. No black lawmakers voted for the measure; it was passed solely by white GOP representatives.

The GOP strenuously repudiated allegations of any discriminatory intent, denying there being any particular impact on minorities, or arguing any such effect was coincidental. According to Republicans in North Carolina, the spectre of voter fraud was the reason for tightening laws, even though many provisions of the new law had no possible relevance to preventing voter fraud. Furthermore, only two cases of voter fraud had been documented in the state between 2000 and 2012, out of roughly 40 million ballots cast.

Voting Rights after Shelby: Cementing Voter Suppression

The defeat of Pat McCrory, the Republican governor of North Carolina infamous for the transphobic bathroom bill, to Democrat Roy Cooper, has failed to improve the state of voting rights in North Carolina. Cooper is unable to veto bills from the legislature due to the GOP ‘supermajority’. The Republican Party, having attempted to derail Cooper’s victory with baseless accusations of voter fraud, rapidly moved to curtail the powers the governor had which could alter their voting rights’ measures. The State Board of Elections which investigates allegations of voter fraud and supervises early voting and recounts, had been composed of five members, three of which would come from the Governor’s party. But dismayed at the prospect of a Democrat majority on the election board, which could disrupt the effective implementation of the voting laws, the legislature rapidly passed a bill making the board an eight person body, with four members from each party. Crucially, Republicans were to chair the board in even years, and Democrats in odd years. As virtually all significant elections, such as congressional midterms, gubernatorial elections and presidential elections happen in even-numbered years, the Republicans would control the board when it had any significant role. Meanwhile the North Carolina GOP has pressed ahead with its voting rights’ agenda. Counties across North Carolina have eliminated numerous polling places in heavily black areas, and have conducted purges of their voter rolls which disproportionately affect black communities.

But voter suppression is not simply a Carolinan phenomenon. Ohio, Texas, Arizona, Mississippi, Alabama, Pennsylvania, Wisconsin and many others have also passed strict ID laws. Donald Trump won Wisconsin by just over 20,000 votes. Although it is contentious as to whether the voter ID law made the difference which sealed Clinton’s defeat in the Badger State, the closeness of crucial elections such as those in the Midwest in 2016 still demonstrates just how important it is that people have fair access to the polls. Beyond voter ID laws, discriminatory measures are flourishing across the states. From purges of voter rolls, to groundless criminal investigations of groups which conduct minority voter registration drives, increasingly ruthless and polarised politics are driving more and more outrageous attempts to weaken voting rights for partisan advantage. Crucially, the growth of Latino communities will provide an urgent incentive for Republicans to ramp up their voter suppression efforts. In Texas, with its thirty-eight congressional districts and electoral college votes, Republicans have for decades been dismayed by demographic shifts which are slowly shifting the state to the left. By 2020, Hispanics will outnumber non-Hispanic whites in Texas, and by 2042, they are projected to be the majority in Texas. Although the suppression of the black vote justly provokes particular outcry given the history of African-American civil rights, it is suppression of the Latino vote which will more profoundly shape American politics. Courts have, with a ruling issued in August, already struck down Texas’s voter ID law five times, and will surely be called upon again to hold back the tide of voter suppression. Indeed if the Supreme Court released this wave of voter suppression, it has fallen to the lower federal courts to hold back the tide.

The Courts and Voting Rights

Voting laws can still be struck down under Section 2 of the VRA if they have discriminatory effects and invalidated under the Equal Protection Clause of the 14th Amendment if discriminatory intent can be shown. Federal judges have accepted both these justifications in overturning suspect voter laws. Courts have repeatedly struck down voter ID laws in Wisconsin, North Dakota, Ohio and in Texas. The fight to legally remedy abuses of voting rights resembles a game of whack-a-mole; as soon as a court strikes down a specific law, the legislature simply passes a different iteration with similar effects. The whole process of challenging the law, which takes months, starts again, all the meanwhile the law exerting a suppressive effect. Nevertheless the North Carolina GOP has moved to prevent any delays in implementing their new voting laws. Courts have restored voters to the rolls, struck down the election board power grab and crucially the voter ID law, which in the court’s opinion targeted black voters ‘with almost surgical precision.’ Rather than back off from their efforts to enforce these laws, however, Republicans in North Carolina have turned their attention to the courts themselves.

In response to voters electing Democrat backed candidates to a majority in the North Carolina Supreme Court, the legislature granted new powers to the Republican-controlled Court of Appeals. The GOP has also made it more difficult for cases to make their way to the Supreme Court in the first place, and reduced the size of the Court of Appeals, such that Democrat Governor Roy Cooper could not nominate successors to three retiring Appeals judges. Republicans have also politicised the election of judges to state courts. Both lower court judges, and those who sit on the North Carolina Supreme Court or Court of Appeals are required to run as affiliated with political parties. Finally, the legislature is pushing to gerrymander the districts which elect the judges in the first place, with one proposed map designed to guarantee that circa 70% of judges would be Republicans. The President pro tempore of the State Senate Philip Berger has favoured an even more radical solution; end judicial elections altogether, such that the GOP supermajority in the legislature has absolute power to appoint all judges whatsoever.

Donald Trump has set records in his confirmation of federal judges, all of whom have been selected for their conservative credentials but given the depth of the benches of federal and other courts, it nevertheless seems likely that North Carolina’s attempts to attack the independence of judges might themselves be judicially rebuffed. But the wider picture remains bleak. With Republicans wresting a Supreme Court nomination away from Obama, appointing ultra-conservative Neil Gorsuch, the highest court in the land is unlikely to reverse its decision in Shelby. Equally, widespread gerrymandering means that the enormous GOP majorities in many state legislatures will be difficult to assail. But perhaps the greatest reason for pessimism with regards to voting rights comes in the form of America’s growing prison population.

Felony Disenfranchisement

Felony disenfranchisement was a tool of Jim Crow states to target black voters: it is no coincidence that the two states with no felony disenfranchisement laws, Vermont and Maine, are the two whitest states in America. Still today the disenfranchisement of those with criminal records has a massively disproportionate effect on Latino and black communities. 6.1 million adults have been stripped of their votes, including one in thirteen African-Americans, compared to less than one in fifty for the non-black population. In Southern States, the home of Jim Crow, the figures are even more disturbing. In Kentucky, Tennessee, Florida and Virginia, over a fifth of all black adults are disenfranchised. Florida alone has 1.5 million residents who cannot vote due to criminal convictions. Given racial biases in the police and judicial system of America, and more generally the socio-economic barriers faced by minorities in the United States, it is difficult not to see their disproportionate disenfranchisement as anything but an extension of the inequality and prejudice of American society as a whole. Felony disenfranchisement cannot be disentangled from racial discrimination. Given that America’s prison population has increased by 500% in the past 40 years, and incarceration rates remain stubbornly high, it seems likely that ever more citizens will have their right to vote rescinded. Perhaps one note for optimism comes from Florida, the state with the most disenfranchised residents, where a campaign has succeeded in gathering enough signatures to put a measure to referendum in 2018 which would re-enfranchise felons once they had completed their sentences. Whether the proposal will gain the 60% majority required to change the state constitution, however, remains unclear. The fondness for ‘tough on crime’ rhetoric has historically meant that popular efforts for criminal justice reform have often floundered due to lack of support.

Fifty years ago this month, Martin Luther King delivered his famous ‘’I’ve been to the mountaintop” speech in Memphis. King recounted being stabbed in 1958, and being told by doctors that had he sneezed on the way to the hospital, the blade would have severed his aorta and killed him, and expressed his gratitude for surviving to witness the civil rights’ movement:

If I had sneezed – if I had sneezed, I wouldn’t have been here in 1963. Black people of Birmingham, Alabama aroused the conscience of this nation and brought into being the Civil Rights Bill.

If I had sneezed, I wouldn’t have had a chance later that year, in August, to try to tell America about a dream that I had had. If I had sneezed, I wouldn’t have been down in Selma, Alabama to see the great movement there.

Well, I don’t know what will happen now. We’ve got some difficult days ahead. But it really doesn’t matter with me now. Because I’ve been to the mountaintop, and I don’t mind. Like anybody, I would like to live a long life. Longevity has its place, but I’m not concerned about that now. I just want to do God’s will, and He’s allowed me to go up to the mountain. And I’ve looked over, and I’ve seen the promised land. I may not get there with you, but I want you to know tonight, that we, as a people, will get to the promised land.

And so I’m happy, tonight.

 I’m not worried about anything.

 I’m not fearing any man.

 Mine eyes have seen the glory of the coming of the Lord.

 The next day King was assassinated by a white supremacist. King did not reach the promised land, and the double tragedy is that still today neither have millions of Americans. As long as the Republican Party, ‘the party of Lincoln’, continues its assault on voting rights, its realisation will remain a distant prospect.