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.

A long, powerful history: How we militarized the police

Please Note:  Today's blog originally  appeared in Minnpost on August 26, 2014.

Policing in America has been shaped from its early days by a military structure, a war mentality and a cloud of racism that continues to repeat itself over time.

The shooting of Michael Brown in Ferguson, Missouri, raises many troubling questions, among them: How did we come to militarize the police? The answer reveals a powerful history that ties race, class, policing and the military together.

The shared history goes back to the Reconstruction era. After the Civil War, federal troops were used to enforce civil rights and the Reconstruction in the South. But as a result of the disputed presidential election of 1876 between Republican Rutherford Hayes and Democrat Samuel Tilden, Democrats conceded the electoral votes to Rutherford if federal troops were withdrawn from South.

Passage of the 1878 Posse Comitatus Act ended Reconstruction and barred federal military personnel from enforcing the laws. The Act does not apply to the National Guard, and over time they have been deployed repeatedly to keep the peace. A couple of examples: The 1894 Pullman strike saw 12,000 federal troops deployed to break up a workers' strike. In 1957 Eisenhower nationalized the Arkansas National Guard to enforce integration in Little Rock.

Prior to the Civil War, only a few American cities had police. Post Civil War, policing grew along several fronts. There were the Pinkertons, who were created as private police to bust unions. In the South, police departments emerged to maintain order against the freed slaves. In the North, they grew to check immigrants and unions.

Early 20th-century reforms

Reformers such as August Vollmer in the beginning of the 20th century sought to professionalize the police by reforming its structure and organization along a military model of authority and hierarchy, creating uniforms and command structures that exist to this day.

Yet the modern militarization of police in America owes it origins to several events. First, reaction to the urban riots of the 1960s led to President Lyndon B. Johnson signing into law the Omnibus Crime Control and Safe Streets Act of 1968. The Act created the Law Enforcement Assistance Administration, which made available grants to local governments to develop and purchase military-type resources to suppress the riots. The money facilitated the development of SWAT and other heavily armored police forces which had developed in Philadelphia, Los Angeles, and other cities to counteract so-called black insurgency.

Second, President Richard M. Nixon’s declaration of the war on drugs and its reemphasis by President Ronald Reagan further enhanced the militarization of the police. It did so in its rhetoric — the war metaphor — sanctioning that a military-style response was needed to address drugs. But also underlying the war against drugs was a racial overtone — the urban riots of the 1960s and drug usage were often associated with blacks. This was seen later as punishment differentials between drugs such as crack and cocaine more heavily punished racial minorities than whites. American prisons and jails incarcerate far more people of color than whites for drugs.

Civil forfeitures

Third, the war on drugs encouraged the police use of civil forfeitures. This was the confiscating of property of convicted and sometimes suspected drug dealers. The theory was it would take the profit out of crime and prevent drug dealers from using their money to enrich their businesses. Civil forfeiture was upheld by the Supreme Court in 1996; it gave local police departments the money to be able to purchase even more military equipment from the Pentagon.

Finally, the events of 9-11 and reaction to it led to the collapse of the distinction between criminal policing, intelligence gathering and protection of national security. Laws such as the Patriot Act effectively turned the police into agents in the war against terror, again providing both a war metaphor to support aggressive policing and, with the creation of the Department of Homeland Security, new resources and funds to fight that fight with military-style weapons.

Thus, policing in America has been shaped from its early days by a military structure, a war mentality and a cloud of racism that continues to repeat itself over time with racial profiling, the death penalty and shootings like that of Michael Brown in Ferguson. The only surprise is the degree of press and visibility it has received. Hundreds if not more Michael Browns have existed, and the question now is what America will learn from this latest tragedy.

The End of the Second Civil Rights Era and the Coming of the Second Great Disenfranchisement

    With Monday’s affirmative action decision and Tuesday’s Voting Right Act case the Supreme Court has just about ended the second civil rights era in American history, paving the way for the second great disenfranchisement in American history.   While the decisions were no surprise, they nonetheless tell us many things about race, class and power in American politics, and also about who the Supreme Court favors. . .and it is not the powerless and oppressed.
    Consider first what the two decisions did.  On Monday the Supreme issued a decision ruling that the use of race in admissions decisions for public colleges and universities is not permitted unless it survives strict scrutiny.  What that decision means is that higher education must demonstrate a compelling reason why race should be used for admission decisions.  Strict scrutiny is a high bar to jump, and effectively decision means that it will be very difficult to implement most affirmative action decisions that rely on race.
    Tuesday’s decision affected perhaps the single most effective civil rights tool in American history–the Voting Rights Act.  Passed in1965 and reauthorized several times, the act had several provisions.  Some applied to all states and barred discriminatory practices that impeded minority voting rights.  But Sections 4 and 5 were unique.  Section 4 applied to certain states that had low voter registration and discriminatory practices in 1964.  For those states that met the Section 4 criteria, any changes that they made in their voting procedures would have to be “precleared” by the US Justice Department before going in to effect.
    The overall VRA was passed to overcome the history of discriminatory voting practices enacted in the South after the Civil War.  As the Civil War ended Congress passed several civil rights acts along with the 13th, 14th, and 15th amendments.  Collectively, this legislation was part of Reconstruction which sought to rebuild the South and promote Black equality.  Yet Reconstruction ended in 1877 when federal troops were withdrawn from the South as part of a deal to end a presidential election standoff between Harrison and Tilden.  When Reconstruction ended, southern states enacted all types of restrictive legislation to effectively re-enslave Blacks.  We saw the emergence of separate but equal, but also laws aimed at preventing African-Americans from voting.  These efforts included poll taxes, literacy tests, grandfather laws, and felon disenfranchisement laws.  More extreme, the KKK burned crosses and lynched to make sure their message was understood.  These laws were upheld by the courts and discrimination persisted in the South.  After a brief flirtation during Reconstruction when many former slaves were elected to office or voted, the laws were a success–until the 1960s only a few percent of the African-American population could vote.
    But a new civil rights era began with Rosa Parks, Martin Luther King, Jr., the Supreme Court decision Brown v. Board of Education of Topeka, Kansas, and the VRA.    Civil rights heroes pushed the cause of equal rights onto the political agenda, President Johnson responded with the 1964 Civil Rights Act and the VRA, and the Supreme Court under Chief Justice Earl Warren upheld their constitutionality.   The VRA has been powerfully successful in promoting civil rights for people of color and the act was subsequently reauthorized several times, most notably in 2007. 
    Here is the problem.  The Act may be a victim of its own success.  The original VRA was upheld by the courts based upon the evidence of discrimination that existed in the 1960s.  But the South has changed in many ways since then when it comes to voting.  The registration rates for Blacks is different now than 1964.  But when the VRA was last reauthorized it was done so with congressional findings of fact from the 1960s and 1970s.  Today’s Supreme Court decision struck the act down, arguing that the data used to define which states are subject to section 5 preclearance was out of date.  Effectively, part of the VRA was declared unconstitutional.
    Now Congress should not have been so sloppy in using old data to support the reauthorization of the VRA.  But this Supreme Court cut them no slack.  It ignored that minority voting rights had dramatically improved because of the VRA and because of the threat of pre-clearance.  Without this threat, voter id, gerrymandering, and a host of new practices will go into effect that will chip away at voting rights.  What we are about to see, as I described in 2008 William Mitchell Law Review Article, is the coming of the second great disenfranchisement in American history.  We have already seen that effort in the last few years with voter id, long voting lines, and mythic claims of voter fraud.
    But now couple the VRA case with the affirmative action decision.  This is a Supreme Court that does not seem to recognize that racism continues to exist and that somehow we can live in a color-blind society.  Yet racism does exist.  We see it in housing discrimination and job discrimination.  Wealth disparities across race exist as do disparities exist when it comes to arrests, racial profiling, and sentencing.  We continue to live in two nations, separate and unequal, yet this Court fails to see that.  Instead, its decisions, much like that of the Supreme Court after the Civil War, are gutting civil rights legislation.  The Supreme Court of Justice Roberts is no friend of people of color.  It is not the Supreme Court of Earl Warren, but of Melville Fuller who presided over much of the dismantling of the old Reconstruction and the ushering in of the Jim Crow and separate but equal era.
    But like the Fuller Court, the Roberts Court is also unsympathetic to the oppressed in general.  If the Fuller Court protected the rich and corporations by striking down legislation that sought to regulate trusts, the economy, and unfair working conditions, the Roberts Court has given corporations the free speech rights to make political expenditures.  It has also made it hard to bring class action suit against them.  Think about it–today’s Supreme Court decision gutting parts of the VRA that was meant to protect minority voting rights needs to read along side its Citizen’s United decision.  More rights for corporations, less for people of color. One should also read these election law cases along side the affirmative action case.  For those who think the use of class can substitute for race and affirmative action, the Supreme Court is building a body of law that insulates the haves against the have nots. 
    Overall, what we are learning from this Court is that it is closing the doors of justice to many and it seems to be on the road of creating a political system that is less equal for all, at least when it comes to race and class.