November 6, 2018

The shifting progress of voting rights in America

By Safya Khan-Ruf

“A man without a vote is a man without protection." — Commonly attributed to US President Lyndon Johnson

Voting enthusiasm is extraordinarily high this year, even among the young, who normally sit out midterms. States, counties, and districts from all over are reporting record turnout in early voting.

Instead of the usual turnout of 30% or so we see in a midterm, this year it could approach 50%, more like a presidential year.

But voter identification laws and similar measures have sprung up across several states over the past years. Supporters argue the measures will cut down on voter fraud and ensure a fairer election. Critics see it as another sinister attempt in the countries long history of voter suppression preventing certain minorities from voting.

The truth is that conservatives are attempting to use the law to win elections by suppressing the vote from the people who need it most – those with the least power in the United States.

Allowed a Vote

Voter suppression – actions intended to deter certain groups or individuals from voting – has been a constant throughout the history of American politics. The US Constitution did not originally explicitly include a right to vote and left it to the states to determine who constituted “the people” and therefore had a right to vote at all.

Initially, this only included white men. Then a few states allowed freed African-American slaves who owned property to cast a ballot. The property requirements were slowly dropped and by 1850, more African American males were included.

While the general trend over the years has been greater inclusion as barriers against women, non-African-American minorities and many non-Christian religious groups have dropped; states have also regressed.

New Jersey removed the right to vote from women after 17 years in the 1800s, some states disenfranchised African-American voters at the turn of the 20th century,  while others passed laws to remove the political right of “paupers”.

Jim Crow

Following a brief period after the Civil War, in which freed slaves had the right to vote and to hold office, there was a political shift in the south with elected conservative Democrats designing a series of laws to suppress the black vote and remove political power from a newly free people.

Even though the 15th amendment extended the right to vote regardless of “race, colour, or previous condition of servitude, no affirmative right to vote exists.

Some states imposed a literacy test to be able to vote – nearly impossible for the former slaves, others created poll taxes – a deterrent for poor African-American families and some even held ‘whites only’ primaries directly opposing the laws, with violent poll workers to block black people from casting a ballot.

Protesting Jim Crow laws was met with violence and threats and by 1940; the tactics of intimidation had achieved their goal, with only 3% of voting age African-American southerners registered to vote.

Most of the tactics used at the turn of the twentieth century worked not through laws excluding certain groups of citizens but by creating barriers in the name of preventing fraud and corruption.

Voter suppression measures tend to target certain groups of voters such as immigrants, women, the poor, felons and African-Americans. The measures have never attempted to disenfranchise upper-middle-class or wealthy white male citizens. Voter suppression has always been an attempt by one group to wield political power over other groups through the cynical use of immoral laws.

White suppression

White supremacy groups also took action to suppress votes. The Ku Klux Klan is the most infamous of American hate groups, with a long history of violence. Its primary target has typically been black Americans, although it has also attacked Jewish and gay people.

Historian Eric Foner writes that the Klan “worked to curb the education, economic advancement, voting rights, and right to keep and bear arms of blacks.”

The Klan has gone through three different incarnations, the third still active in 2018. When it first flourished in the 1860s, it severely weakened black political establishment through its use of assassinations and threats of violence.  Klan violence worked to suppress black voting, and campaign seasons were deadly. More than 2,000 people were killed, wounded, or otherwise injured in Louisiana within a few weeks prior to the Presidential election of November 1868.

In 1871, Congress passed the Second Enforcement Act, better known as the Ku Klux Klan Act. One aspect of it aimed to curtail the Klan’s efforts to prevent the casting of certain votes in elections.

Since the 1970s, the Klan has been greatly weakened through internal conflict and government action. While some factions preserve an openly racist approach, others cloak it as “civil rights for whites”.

Throughout the decades, white vigilantes – not formally linked to the Klan – also acted to suppress votes. One of the many murdered was civil liberties activist Elbert Williams, who was lynched by white men in Tennessee in 1940 for working to register blacks to vote.

Not all white supremacy groups pursued voter suppression through violence.

Unlike the Klan, the Citizen’s Councils met openly and used economic and political tactics against civil-rights activists and black registered voters. The were founded in 1954 to oppose racial integration in schools but also opposed voter registration of black Americans. Members used severe intimidation tactics including economic boycotts, firing people from jobs and propaganda. Occasionally some Councils directly incited violence, such as lynchings, shootings, rapes and arson.

The demise of the councils occurred in the 1970s but their legacy lives on in the Council of Conservative Citizens which was founded by former members and supports white nationalism.

The original councils only disappeared as white Southerners’ attitudes towards desegregation began to change following the enforcement of legislation such as the Voting Rights Act.

The rise and fall of the VRA

Women were finally extended the right to vote in 1920 but it wasn’t until the Voting Rights Act (VRA) of 1965 that the Jim Crow laws were eradicated in southern states.

The Act banned any “test of device” to qualify voters based on their education. Poll taxes were banned a year later and other actions were taken to break down the barriers created before the act.

Under the VRA, states and localities with a history of racial discrimination needed to get permission from the federal government to enact any changes to their voting laws through “preclearance”.

“From 1965 to the 2000s, we weren’t seeing the voter suppression tactics we see now because whatever was enacted was then being struck down by Congress,” says Nazita Lajevardi, political scientist and attorney at Michigan State University. “This worked because the VRA was intact.”

The VRA was changed in June 2013, when the Supreme Court ruled on Shelby County v. Holder and reduced its effectiveness by allowing states with histories of voter discrimination such as Alabama, Texas and Virginia to implement new restrictions on voting.

“The conditions that originally justified these measures no longer characterize voting in the covered jurisdictions,” Chief Justice John Roberts wrote in the majority opinion in Shelby.

While the VRA is still in place and the pre-clearance in Section 5 wasn’t declared unconstitutional, the coverage formula that determined which jurisdictions needed to “pre-clear” new voting practices was removed. Congress was left to come up with a new formula.

“The courts told Congress that preclearance per say is not unconstitutional, just the specific formula used,” says Jesse Rhoades, Associate Professor of Political Science at the University of Massachusetts Amherst. “But Congress has not been willing to enact a new formula, largely because Republicans have blocked efforts to revive one. Republicans primarily from southern states, which have historically been those that were more likely to be identified, have blocked these changes.”

In her dissent, Justice Ruth Bader Ginsburg wrote, “Just as buildings in California have a greater need to be earthquake-proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination.”

She noted that the Justice Department estimated that in the five years after the passage of the Voting Rights Act, almost as many blacks registered to vote in Alabama, Mississippi, Georgia, Louisiana, North Carolina and South Carolina as in the entire century before 1965.

Modern Voter Suppression

In an important test of Donald Trump’s presidency, all 435 seats of the House of Representatives will be contested in the midterms, with 35 of the Senate’s 100 seats also up for grabs.

Intimidation and disinformation are recognised examples of voter suppression but today, politicians have acquired many tools that can be used to disenfranchise

citizens; not only in state and local elections but also in federal ones. Since the VRA was amended, voting legislation has largely been marked by efforts to impede voting access – with the result being the disenfranchisement of people of color and the poorest.

According to the Brennan Center for Justice last year, at least 99 bills to restrict access to registration and voting have been introduced in 31 states. Thirty-five such bills saw significant legislative action.

One tool being used are photo ID laws, pushed by Republicans in many states.

Republican and Wisconsin Attorney General Brad Schimel, suggested that the state’s voter ID law likely helped Donald Trump carry the state in 2016.

Critics of voter ID laws point to voter fraud being extremely rare with 86 convictions out of 300 million votes cast in recent elections according to Department of Justice figures. They argue that certain democratic-leaning voters – African- and Hispanic-Americans, students, the elderly and the disabled – are less likely to own a valid ID and that this will discourage them from voting.

Meanwhile, supporters of voter ID laws insist voter fraud, especially from illegal immigrants, is a serious issue and this will result in fairer elections. In a landmark 2008 decision, the Supreme Court sided with voter ID supporters in Indiana, citing a “valid interest” in deterring fraud and finding no significant obstacles to obtaining an ID.

This faction has been strengthened by a president who, days after assuming office, claimed that 3 to 5 million fraudulent ballots had been cast for Hillary Clinton.

In Georgia, critics say the voting system was designed to make it difficult for voters, particularly minorities and new citizens to exercise the franchise. Stacey Abrams, the Democratic candidate for governor, lays much of the blame on her Republican rival, Secretary of State Brian Kemp, who critics say has a history of voter suppression.

Georgia has had a succession of controversies surrounding the vote – a new “exact match” voting law, a mass removal of inactive voters from the state rolls, and reports that some machines are switching Abrams votes to Kemp – could discourage minority and first-time voters from turning out.

Voter purges are being used in several states. Officially, the purge removes ineligible voters from registration rolls, but a report from the Brennan Center for Justice details unfair purge techniques that ultimately disenfranchise eligible voters.

“Purges have always posed risks for voters, but this year we’re seeing new, insidious methods of purges that all voting rights groups must watch as we near November,” said Jonathan Brater, counsel in the Brennan Center’s Democracy Program. “These questionable approaches used to kick people off the rolls risk silencing eligible voters wanting to cast a ballot. Maintaining accurate voter rolls is crucial, but sloppy and ultimately illegal attempts to do so threaten to rob citizens of their fundamental rights.”

A number of Republican-controlled state legislatures have also passed laws that forfeit the voting rights of convicted criminals, even after they have served their time. Prison populations disproportionately include white, black and Latino poor.

Other states have tightened the window for absentee, overseas and early voting, and banned same-day voter registration. Some states want to require voters to provide a proof of citizenship.

Groups like the American Civil Liberties Union (ACLU) assert these laws are aimed at restricting the ability of minority, disabled and elderly voters from casting their vote.

As American politics grows increasingly divisive, both parties have done all they can to gain political advantage but tensions are rising around the line between acceptable political tactics and unconstitutional breaches of civil rights. The battle between safeguarding elections and methods disenfranchising voters is unlikely to abate after the midterm election results.