Georgia, Voting Rights, and the Second Great Disenfranchisement in America

 

            Georgia’s decision to restrict voting rights in partisan retaliation for Democrats flipping the state

should come as no surprise.  It is a continuation of a nearly generation long battle that is part of the Second Great Disenfranchisement in American history.  Like the first which occurred after Reconstruction ended in 1877, this one too is both partisan and aimed at people of color, especially at a time when the latter are about to take political control.

        Across Europe and the United States, the 1800s was the century of the battle for universal suffrage.  Democratic movements pushed for everyone to get the right to vote, including women, the indigent, and people of color. While the battle for universal suffrage began in the nineteenth century, apparent victory did not occur until the twentieth century.  In the United States, by the early 1970s federal laws and constitutional amendments achieved nearly universal suffrage, and enforcement of the 1965 Voting Rights Act significantly overcame the racial barriers that many states still maintained to prevent people of color from voting.

            But while the arc of American history has been an expansion of voting rights—an effort former Supreme Court Justice Thurgood Marshall referred to as expanding who was included in the promise of the Constitution’s “We the people”—there has also been a counter effort to suppress voting rights.  After the Civil War, the Republican Party embraced voting rights for the newly freed male slaves, while the Democratic Party opposed it.  When the 1876 disputed presidential election, Democrats conceded the election to the Republicans on condition that Reconstruction end.  This ushered in a 100-year-long Jim Crow era where literacy tests, grandfather laws, poll taxes, felon disenfranchisements, and outright lynching suppressed voting rights for African Americans.

            The first Great Disenfranchisement ended in the 1960s with 1964 Civil Rights Act and the 1965 Voting Rights Act and perhaps the 1993 Motor Voter Act.   But with universal franchise within grasp, the roots of the Second Great Disenfranchisement began.  It started with Barry Goldwater, George Wallace, and Richard Nixon defending states rights in the 1960s.  It continued into the 1990s with Republicans claiming Motor Voter would yield fraud.  And then post Florida 2000 and the disputed election between George Bush and Al Gore, the language turned to claims of voter fraud and the need to fix it via voter identification laws. 

Since then, there has been a generation long effort by Republicans to suppress voting rights, using the false claim of voter fraud as a pretext.  Now voter fraud has morphed into “stolen election” after Donald Trump lost the 2020 election and Joe Biden and the Democrats flipped Georgia, and with that, the control of the presidency and the Senate.  As the Brennan Center reports, 43 states have introduced more than 250 laws aimed at suppressing voting rights.   There is still no basis for the stolen election thesis,  as 60+  court cases after the 2020 elections showed, and according to Sidney Powell, Trump’s attorney, who, in response  to lawsuits challenging her claims of fraud, asserted that no reasonable  person would believe such assertions.  And with a conservative Supreme Court already having gutted the Voting Rights Act and poised to let states restrict franchise, the Second Great Disenfranchisement is in full bloom.  Georgia is at the center of the fight.

Georgia’s flip to voting for the Democratic Party presidential and US Senate candidates came as a surprise to many.  On one level perhaps its flipping vindicates Chief Justice Roberts’ majority opinion in Shelby County v. Holder when he pointed to statistics indicating parity in voter registration for Blacks and Whites across the South, insinuating that perhaps the VRA might no longer be needed.  Maybe Georgia in 2020 was proof that Jim Crow and voter suppression were left behind, and that the electoral college was no longer anti-majoritarian institution.

            Georgia was a surprise, but it was also a product of a perfect storm that may not be repeatable or serve as a harbinger for the rest of the South.  What happened in 2020 was a product of a concerted multiyear organizing strategy by Democrats and Stacy Abrams.  It also benefitted from a large Black voting population, a state with significant in-migration from the north to Atlanta, and college educated White suburban voters who disliked the incumbent president Donald Trump for among other things, his mishandling of the pandemic.

            Consider first the racial makeup of Georgia.  According to the 2019 Census Bureau American Community Survey population estimates, Georgia is 57.75% White, 42.25% non-White, with 31.94% African American.  Of the 11 states that made up the Confederacy, no other state has a high percentage of its population non-White.  The only state coming close is Mississippi at 41.97%. The latter, however, does not have as has a high percentage of the college educated as Georgia.  In 2020, 40% of the Georgia voters had a college education, with 14% of persons of color having a college degree.  Compare this to Mississippi where 30% of the voters had a college degree and approximately 8% of non-whites had college degrees.  In Georgia 61% of the voters according to exit polls were White, whereas in Mississippi it was 69%.   Finally, in Georgia 69% of Whites voters supported Trump and 88% of Blacks supported Biden, while in Mississippi 81% of White voters supported Trump while 90% non-White voter for Biden.

            What we learn from this brief comparison is that while racially polarized voting continues to exist in both states, the presence of more voters with a college degree somewhat mediated the partisan split in Georgia but not so much in Mississippi.  Nationally we know that in 2020 college-educated voters were much more likely to support Biden, confirming that Georgia voting patterns followed that trend.  Yet Georgia’s unique combination of racial demographics and education distinguished it from Mississippi and perhaps other former Confederacy states in setting the stage for the 2020 election results.

Given the above, one should not necessarily expect that the electoral college vote in Georgia in 2024 will produce similar results and perhaps protect minority rights.  And all of that was before the effort to suppress voting rights in that state.  Georgi flipped in part because people of color voted.  Suppress them in that state and a few others and the election in 2020 could have been different.  In fact, while Joe Biden won the presidency in 2020 by nearly seven million popular votes, he only won Arizona, Georgia, and Wisconsin by 19,457, 11,779, and 20,682 votes respectively, or collectively by 42,918 votes.  Suppress 43,000 votes and Trump would have won the electoral college again in 2020.

Elections have consequences.  That is why voter suppression is so important.  We are in the middle of the Second Great Disenfranchisement and 2021 will tell us whether the battle to protect voting rights will be won or lost.

What We have Learned from Michael Brown and Eric Garner

Something is wrong with the law if those entrusted to enforce it repeatedly violate it.  This is the troubling story of  race and Michael Brown and Eric Garner, and police brutality in Cleveland, Ohio.  But these three examples raise even more profound stories about the role of the law in a democratic society regarding whose legal norms are enforced and how.  It is the story of legal legitimacy.
    W.E.B. DuBois' 1903 The Soul of Black Folk declared "the problem of the Twentieth Century is the problem of the color-line."  Forty years later sociologist Gunnar Myrdal's 1944 The American Dilemma echoed that theme, contending that African-Americans were largely excluded from the promise of American democracy because of Jim Crow and racial segregation.  Rosa Parks sitting at the front of the bus, the Supreme Court's 1954 Brown v. the Board of Education, Martin Luther King, Jr.'s  march on Washington, and the civil rights legislation of the 1960s supposedly ended this exclusion, with the 2008 election of Barack Obama proving we had entered a post-racial world.  Race, especially as it intersects with class, remains as salient and divisive  an issue as ever.  Surveys point to very different reactions among Whites and people of color when it comes to judging Ferguson and police behavior in general.
    But it is not just about race. Talk to feminists and women’s activists who contend that the law embodies a male perspective.  From issues of rape, sexual harassment, pregnancy,  disability, and job discrimination, to the persistence of women making 77¢ on the dollar compared to men, the law continues to treat the two sexes differently.  Or consider class.  One need not recount the plethora of evidence demonstrating the gap in wealth and income between the rich and poor in the United States is at record levels for the last century.  The law favors the affluent anywhere from their ability to hire good lawyers or to make excessive political contributions.  Not too many rich people get the death penalty or see prison time for their crimes. The current Supreme Court seems hellbent on turning corporations into full-fledged citizens and it is blind or deaf to the plight of the poor.  The law equally appears to allow the rich and poor to sleep  under the bridge.
    There is also something wrong with the law that sanctions repeated police use of excessive  force.  I used to teach a class on police criminal and civil liability under state and federal law, including what is called §1983 violations.  The course practically taught itself with examples of police behaving badly–including in Minneapolis alone.  It is not easy to win §1983 claims.  The law and the public  favor the police.  Maybe once that was appropriate, but knowing that we have scores if not hundreds of police shooting Michael Browns per year leads one to question whether the law has tipped too far in favor of the former.
    What all of these stories have in common is that many do not view the law as legitimate.    In a democratic society such as the United States legal values should be widely shared, equitably enforced, and obeyed by all, including by those who enforce the law.  What we have learned Michael Brown and Eric Garner is that the reality is far from what we would hope.

Zimmerman, Food Stamps, and Immigration: It’s All About Race

It’s all about race.  It always has been in America and it appears that it continues to be the case.  Three events in the news this week, the House cuts food stamps and refuses to act on immigration, along with the acquittal of George Zimmerman (Trayvon Martin), demonstrate that we have not achieved the race-neutral or color-blind society that so many believe we have achieved.

W.E.B. Du Bois wrote in 1903  that "the problem of the Twentieth Century is the problem of the color-line."  He was prophetic.  America’s struggle with race and the legacy would dominate the 20th century.  First it would be the legacy of separate but equal and the squashing of voting rights with Jim Crow.  Then it was Rosa Parks, Martin Luther King, Jr., and the civil rights movement that produced the 1964 Civil Rights, Act, the 1965 Voting rights Act, and affirmative action.   It looked like progress had been made and as 2001 arrived some argued that this would be the century of a post-racial America.  At least that seemed to be the prognosis with the election of Barack Obama in 2008.

Yet the illusion of a post-racial America was always greater than the reality.  Despite progress on many fronts, the color-line and race remain a powerful reality in America even before the events of the last week.  Schools as segregated today as they were in 1954 when the Supreme Court issued its Brown v Board of Education decision that supposedly ended separate but equal.  Residential segregation, especially in the north, remains high.  Racial profiling by police, which was a major issue until 9/11, persists, and the racial disparities in terms of educational outcomes, incarceration, wealth, and income, persist.  We continue to live in what political scientist Andrew Hacker described as Two Nations: Black and White,  Separate, Hostile, and Unequal.

The backlash against civil rights was manifest in the war against drugs.  It also has played out in opposition to the Motor Vote Act, claims of voter fraud, and efforts to institute voter ID.  Hostility to welfare in the 1990s was all about race, especially with the mythic welfare queen symbolized as an African-American woman.  And arguments that affirmative action was reverse discrimination and  unnecessary because we had entered a new era where race did not matter failed to appreciate how even with affirmative action people of color–especially African Americans–were still under-represented in colleges and universities across the country. 

Even Obama’s victories in 2008 and 2012 pointed to the continuing legacy of race.  Yes he won, but the racial polarization of voting was significant with 98% of African-Americans voting for him and a majority of whites in 2012 for Romney.  In 2008 there is evidence were he not Black Obama would have won even bigger than he did.  Obama won despite his race.

And then the Supreme Court weighed in.  In June it issued two opinions, one on affirmative action, one on voting rights, that vastly limited the ability of schools to diversity and the federal government to police states that seek to impede minority political rights.  As I suggested in an earlier column, we are witnessing the end of the second civil rights era and the coming of the second great disenfranchisement.

And now the events of the last week.  First, the Republican House makes it clear that it will not move on immigration and it passed a farm bill without authorizing food stamps.  Both moves are simply base politics.  The current base of the Republican party is old, white, and conservative.  It is hostile to taxes, immigration, and just doesn’t get it on race.  Opposition to immigration and food stamps will probably not cost Republican House members as votes in 2014, and instead it will help them.  With so few swing districts in America, few Republicans will fear voter retribution if they voted the way they did.  Instead, they stave off conservative challenges and shore up their political base.

Of course, such a strategy is of a short time horizon.  American demographics are changing and this vote does nothing to help the GOP reach out to Hispanics and other racial minorities who will become the new majority in America.  Even many in the GOP recognized the need to move on race, as evidenced by the 2013 Republican study entitled The Growth and Opportunity Project.  Yet getting a party to change to appeal to a new base when the old base remains hostile is nearly impossible.  The decision on immigration is simply another way that the GOP continues to shoot themselves in the foot.

The vote on food stamps is fascinating.  First, it is a story about welfare.  In passing the farm bill, the subsidies that have been approved overwhelming go not to the family farmer but to big agribusinesses.  Big corporate farms–generally owned by whites–again get their welfare.  Yet food stamps–welfare for the poor and middle class–get nothing.  The GOP continue to think that food stamps are only for the undeserving poor–the 47%ers–who are mainly racial minorities, but the reality is more whites, including suburbanites after the 2008 crash, get food stamps.  Again, such a vote endears the GOP to their base but does little to reach out to the real America who struggles.

Finally, is anyone really surprised by the Zimmerman acquittal? It was almost like an anti OJ Simpson trial.  Race mattered in both but in different ways.  With OJ, it was the rarity of a Black man acquitted  in the murder of a white woman.  But here it was the acquittal of a person accused of killing an African-American.  Granted that Zimmerman was part Hispanic, but the case was really painted as a white-black one. Five white women and one woman of color were on the jury.  It was a jury where race was an issue to start with.  Studies suggest that it is hard for a lone juror to resist others if there is not another person supporting her.  Six-person juries are less likely to find a second dissenter.  My point is that if race was a factor among the jury and its composition, a six-person jury made it more likely that a single person of color would find it hard to change the deliberations dynamics than were there a larger jury with more people of color on it.  Second, the stand your ground law in Florida made it hard to convict.  The law significantly favors  the use of guns to defend.  Third, the defense effectively used race throughout the trial, playing on fears of out of control black teenagers and crime to scare an all-female jury.  It was just predictable. 

Du Bois’ color-line has not really vanished.  It continues to be about race.