The states are not friends of voting rights in America

 Todays blog originally appeared in The Hill.

The story of voting rights in America yields two truths. First, even though since 1787 there has been an overall expansion of voting rights en route to universal adult franchise, it also has been a partisan battle often featuring efforts to disenfranchise. Second, left to their own devices, states are not the drivers of expanded voting rights. It has happened only when the national government has entered to guarantee, expand and protect rights. 

This is why Congress needs to enact federal legislation to federalize voting rights and enable national standards and enforcement.

America may be the world’s first experiment with popular government, but its record from the start in recognizing the right to vote is poor. At the Constitutional Convention of 1787, disputes over slavery, representation and the selection of the president left the issue of voting rights out of the Constitution and in the hands of the states to decide. In 1787, state laws limited voting rights to white, Protestant males with property who were at least age 21. 

A few states prior to the Civil War expanded voting rights on their own. They did so by dropping property qualifications in lieu of poll taxes to ensure that only those with an economic stake in the community could vote. Yet, serious expansion of voting rights did not come until after the Civil War. Republican Party support of the 1866 Civil Rights Act, the 14th Amendment in 1868, the Fifteenth Amendment in 1870, and the deployment of federal troops in the South during Reconstruction led to a dramatic increase in voting rights and representation for the freed males slaves.

But the disputed 1876 election — in which Democrat Samuel Tilden conceded the White House to Republican Rutherford B. Hayes on condition that federal troops be removed from the South — ended Reconstruction and support for voting rights for Black males. It ushered in a nearly century-long “first great disenfranchisement” in American history. This was the era of Jim Crow, in which mostly southern Democratic Party states employed a variety of mechanisms — grandfather laws, poll taxes, literacy tests and felon disenfranchisement laws — as tools to entrench single-party rule and prevent African Americans from voting. States also acted to prevent women, the poor, and young people from voting.

All the major initiatives to expand voting came as a result of federal legislation or action. The 17th Amendment (1913) gave individuals the right to vote for senators. The 19th (1920) and 26th (1971) Amendments banned denial of voting based on sex or age. The 23rd Amendment (1961) gave the District of Columbia electoral votes for president. The 24th Amendment (1964) banned poll taxes. Along with these amendments, the Supreme Court in United States v. Classic (1941) ruled that Article I, Section Two of the Constitution gave individuals a right to vote in federal elections. In Reynolds v. Sims (1864) and Harper v. Virginia Board of Elections (1966), the court located a right to vote in state and local elections in the First and 14th Amendments.  

Most importantly, the adoption of the Voting Rights Act of 1965 brought federal enforcement of voting rights, compelling states to preclear changes in election rules and desist from diluting voting rights. Even the Supreme Court’s cases on reapportionment and enforcement of the “one person, one vote” mandate were a major defense of voting rights. Then the 1993 Motor Voter Act expanded opportunities to register people to vote. All of this legislation and court action shared a common denominator — federal intervention into and protection of voting rights against states hostile toward expanding franchise.

Now we are witnessing efforts in the “second great disenfranchisement” in American history — this time led not by Democrats, but by Republicans. It began in the 1990s with claims that Motor Voter would lead to fraud. Then after the disputed 2000 presidential election in Florida, which resulted in the court’s ruling in Bush v. Gore, Republicans cried voter fraud. They demanded voter identification to stem nearly nonexistent fraud. It degenerated in the past election into the chant of a stolen election, and now there’s a new round of proposed 250 voting restrictions in 43 states, mostly Republican initiated. 

All of this is taking place after the Supreme Court, in 2013 in Shelby County v. Holder, effectively dismantled the Voting Rights Act and hobbled federal enforcement of franchise rights.

The “second great disenfranchisement” is a repeat of the first: Withdraw federal protection of voting rights and free states to restrict. This time it is not poll taxes or literacy tests, but restrictions on early voting, drop boxes and poll locations — different techniques but the same goals, same results.

States may be laboratories of democracy in many ways, but not where it matters most in protecting voting rights. Voting is the most fundamental of all rights, critical to protection of all others. The only way to defend universal franchise and, as former Supreme Court Justice Thurgood Marshall once said, give meaning to the first three words of the Constitution — “We, the People” — is for Congress to enact legislation reasserting a federal role in protecting voting rights.

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.

Less than Fundamental: The Myth of Voting Rights

The Supreme Court’s recent Husted v. Philips Randolph Institute upholding Ohio’s voter purge law and Minnesota Voter Alliance v. Mansky striking down Minnesota’s political apparel ban are only latest cases declaring war on voting rights.  These cases are part of the second great disenfranchisement in American politics.  Like the first one after the end of Reconstruction, this one too aims to rig the election process, entrenching one set of interests in power.
The story of voting rights in America is one of exceptionalism.  In 1787 when the US Constitution was  drafted the right to vote was absent from the text.   The Constitution then (and still to this day because the Electoral College actually picks the president) did not a grant a right to vote for president, senators were chosen by the state legislatures, and while members of the House of Representatives could be selected by the people, who could vote was a matter of state law, with franchise generally limited to property-owning white males, at least 21 years old, who were citizens and members of a church or particular faith.
The traditional story of voting rights in America tells how franchise and democracy expanded over time.  First in the 1820s states started dropping property requirements to vote and began allowing qualified individuals the right to pick the electors who selected the president.    Then there would be the story of the adoption of Fifteen, Nineteenth, and twenty-sixth Amendments granting the right to vote to freed male slaves, women, and eighteen-year-olds.  There would also be the story of the Seventeenth Amendment allowing for direct popular vote of senators, the Twenty Fourth Amendment eliminating the poll tax, and the 1924 Indian Citizenship Act, and the 1965 Voting Rights expanding voting rights to Native-Americans and people of color.  These amendments and laws, along with Supreme Court cases such as US v. Classic and Harper v. Virginia Board of Elections, are part of an election law canon supposedly guaranteeing the right to vote as fundamental.
Except the right to vote in the United State is less than fundamental. The other side of the story of voting rights in America is how tenuous and contingent franchise is, and how much pressure there has also been to restrict it.  The United States is the only country in the world that still does not have in its Constitution an explicit clause  affirmatively granting a right to vote for all or some of its citizens.
The 15th, 19th, and 26th Amendments do not actually grant an affirmative right to vote–they merely prevent denial of franchise on account of race, gender, or age. One consequence of this less than fundamental right is that the US has one of the lowest rates of voting among democracies in the world.  Voting is stratified by race, class, and gender.  While most legal restrictions in place on franchise in 1787 have been eliminated, in reality the profile of those who vote today is almost identical to what it was back then.
With each push to expand franchise a counterpunch responded to contract it.  During the first  great enfranchisement after the Civil War, Congress enacted civil rights legislation and adopted constitutional amendments during Reconstruction in order to establish voting rights for freed male slaves.  It worked–electing many blacks to state and federal office–until Reconstruction ended in 1877 and the Jim Crow Era commenced.  Tools as explicit as lynchings were deployed to dissuade African-Americans from voting, but so too were felon disenfranchisement laws, poll taxes, literacy  tests, and grandfather laws.  These techniques successfully wipe out the right to vote for many for nearly another century.
But then the second great enfranchisement occurred during from the 1950s to 1970s.  Once  the 1965 Voting Rights Act and its subsequent amendments along with the  1993 Motor Voter Act began to make an impact, the backlash began. The first great disenfranchisement was a partisan affair pushed by Democrats.  This time it is Republicans.
It began with cries of voter fraud, even though there is no credible evidence that in-person  fraud at the polls is a serious problem.  The Supreme Court endorsed voter ID laws in its 2008 Crawford v. Marion County, and now 34 states have photo requirements.  These ID requirements are especially hard on the poor, people of color, new citizens, and the elderly; many of these groups lean Democrat.  In its 2013 Shelby County v. Holder the Court declared part of the Voting Rights Act unconstitutional, embolden states to take action such as closing polling places or cutting back on early voting.  And way back in 1974 the Court endorsed ex-felon disenfranchisement laws in Richardson v. Ramirez, stripping away the right to vote to millions of individuals, many of whom are poor and people of color.  Over time other limits on voting have been adopted by states, and the Court has come to accept them as routine and reasonable administrative regulations, failing to look at the impact the rules have on the voter.
Now we have  Husted v. Philips Randolph Institute and Minnesota Voter Alliance v. Mansky.  Supporters of these laws will say that these decisions either disenfranchise few, are necessary to prevent fraud, or protect free speech.  But they also put more burdens on voters to ensure they are registered to vote or require them to endure more pressure when they enter the ballot box to vote.   Voting has become an individual struggle–fighting both against the government and others to cast a ballot.  You are essentially on your own to figure out how to vote, and it appears the government will do little to help you.  No surprise that Justice Roberts in his Mansky majority opinion refers to the days of the nineteenth century when voting “was akin to entering an open auction place... where [c]rowds would gather to heckle and harass voters who appeared to be supporting the other side.”
Such a scene was intimidating.  This is what voting is turning into again.  Casting a vote is becoming again  an act of courage, meant not for the faint-hearted.  Whatever the election law fiction  is, the right to vote now is less than fundamental.

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.