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.