America’s Struggle for Voting Rights

In October 2015, the Ash Center hosted the inaugural session of its Race and American Politics Seminar Series featuring an author’s talk with The Nation’s Ari Berman. Berman discussed his new book Give Us the Ballot: The Modern Struggle for Voting Rights in America with Lani Guinier, the Bennett Boskey Professor of Law at Harvard Law School, Leah Wright Rigueur, Assistant Professor of Public Policy at Harvard Kennedy School and chair of the Race and American Politics Seminar Series, and Alex Keyssar, Professor of History and Social Policy at Harvard Kennedy School.

The Ash Center’s Race and American Politics Series is a multidisciplinary series of seminars and round-table conversations led by Leah Wright Rigueur. Co-sponsored by the Hutchins Center for African and African American Research and Malcolm Wiener Center for Social Policy, the series features academic, practitioner, and journalistic perspectives from across the nation on the most pressing political and social issues related to race in the United States. See other events and read more about the series here.

Read posts about other events in this seminar series here.

By Hannah Hilligoss and Charlie Pioli

In Give Us the Ballot: The Modern Struggle for Voting Rights, Ari Berman recounts the passage of the Voting Rights Act (VRA) in 1965 and the ensuing counterrevolution that has sought to limit voting rights ever since. Fifty years after the VRA was signed, it is still unclear whether or not the progress that has been made can withstand the renewed pressure of discriminatory legislation that restricts the voting rights of certain populations. This conversation was kicked off by Alex Keyssar, the Matthew W. Stirling Jr. Professor of History and Social Policy at Harvard Kennedy School and author of The Right to Vote: The Contested History of Democracy in the United States, a finalist for the Pulitzer Prize. As a historian, Keyssar provided the conversation with a perspective reaching back to the country’s birth, noting that the history of voting rights “is not a story of ongoing social progress.” Keyssar briefly overviewed the periods of advance and the ensuing retrenchment of voting rights through the end of the civil rights movement, where the suffrage narrative usually ends. Berman picks up the story here, as both he and Keyssar agreed that history did not stop with the passage of the Voting Rights Act.

Ari Berman, Author

Historical Perspective: The 1965 Voting Rights Act

The 1965 Voting Rights Act is often viewed as the culmination of the civil rights movement. It not only abolished the mechanisms used to restrict African American’s right to vote, such as literacy tests, but Section V of the Act also mandated that those states with the longest histories of voter discrimination must approve voting changes with the Federal Government. Berman walked through the measures taken by the VRA to ensure effective and durable implementation: federal officials were sent to the South to register African American voters; these officials stayed in the South through the election to prevent voter discrimination at the polls; and Section V of the VRA prevented states from unilaterally passing legislation to circumvent the act.

The drafters of the bill were cognizant of U.S. history and anticipated many challenges to the VRA. Section V, in particular, was shaped by the events following the 1970 adoption of the 15th Amendment, which declared that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Berman explained that although this amendment was upheld for ten years, after federal troops left the South in 1876, poll taxes, literacy tests, property requirements, and grandfather clauses were used to disenfranchise African American voters once more.

While Berman heralds the VRA as one of the most durable pieces of legislation ever enacted, he warns that it cannot be viewed as an end point in the voting rights discussion. The suffrage narrative continues to be one of progress and regression, as Keyssar noted in his introduction, due to new state attempts to restrict voting rights.

Listen to an audio recording of the event.

Berman described the early challenges to the VRA, which were based on the states’ rights argument — that the Act was unconstitutional because the Federal Government could not dictate state policy on voting qualifications. This argument was shot down in Supreme Court case South Carolina v. Katzenbach (1966), in which Chief Justice Earl Warren defended the VRA as a valid exercise of Congress’ power under the enforcement clause of the 15th Amendment to the United States Constitution.[1]

After this decision, Berman recounts, states such as Mississippi continued their crusade to restrict voting rights by gerrymandering political lines or by switching to citywide and countywide elections, ensuring that the white majority was able to elect every representative. The Supreme Court also ruled these actions to be unconstitutional, claiming that the VRA was not just about voting rights, but about the power of the vote — the right to real representation.

Voter Fraud?

In his journalism, Berman first picked up the issue of voting rights after the 2010 Tea Party wave elections, when many state legislatures became more Republican. As a result, there were over 180 pieces of legislation introduced in 41 states that made it harder for certain groups of people to vote (e.g. shutting down voter registration drives, cutting back on early voting, requiring strict forms of government issued ID that were not previously requisite, disenfranchising ex-felons, etc.). Berman saw this as a clear attempt to create an electorate that was “older, whiter and more conservative” as opposed to one that was “younger, more diverse, and more progressive,” like the electorate that voted for the first Black president in 2008.

After the 2000 presidential election in Florida, Republicans discovered that they could effectively preserve a more conservative voter demographic by enacting restrictive legislation purportedly aimed at preventing voter fraud.

Coming into the 2000 election, Florida underwent a “voter purge” to appease those who argued that there were tens of thousands of felons on the voting rolls — felons had been disenfranchised in 1868. However, the purge was sloppy and many non-felons were removed from registration rolls even if their middle names, last names, sex, or race, didn’t perfectly match those on the list.

Prof. Lain Guinier, Ari Berman, and Prof. Leah Wright Rigueur

In the executive summary of its investigation into the Florida elections, the U.S. Commission on Civil Rights concluded that “Florida’s overzealous efforts to purge voters from the rolls, conducted under the guise of an anti-fraud campaign, resulted in the inexcusable and patently unjust removal of disproportionate numbers of African American voters from Florida’s voter registration rolls.” African Americans, who constitute 11% of Florida’s electorate, were disproportionately affected, making up 44% of the purge list. The NAACP sued Florida, which admitted that 12,000 people were wrongfully labeled as felons and prevented from voting. Berman notes that this number was 22 times Bush’s margin of victory.

After these elections, Berman remarked, Republicans learned that voter fraud can be a “useful and manufactured way to build public support for making it harder for certain people to participate in the political process.” Instead of reaching out to an increasingly diverse electorate — of the 5 million new voters in 2008, two million were Black, 2 million were Hispanic, and 600,000 were Asian — Republicans tried to prevent them from voting by requiring certain types of IDs; by cutting back on early voting; and by shutting down voter registration drives, which are both used more frequently by minorities and young people than by white people.

In Texas, for example, State representative Debbie Riddle filed a voter ID bill in 2011 holding that “the sovereign right to vote that you and I are guaranteed as citizens of this nation is our most precious freedom, second only to our freedom of religion. This right must be protected through the use of photo identification at the voting place.” The law went into effect before the 2014 mid-term elections, requiring voters to present a valid ID, allowing concealed handgun permits but not student IDs from an accredited four-year institution, nor expired driver’s licenses. The Brennan Center for Justice documented stories of those turned away at the polls, which were primarily African Americans, Latinos, the poor, and those with disabilities.

One student, originally from Louisiana, was turned away because neither her Louisiana driver’s license nor her student ID were sufficient under the new law. This campaign to instate voter IDs can be interpreted as a response to the Texas’s changing demographics. According to 2010 US Census data, the population of African American, Hispanic, and Asian residents (53.2%) exceeds the population of white residents (45.3%), which threatens the GOP’s standing.

Alex Keyssar, Professor of History and Social Policy at HKS

States’ Rights

A devastating blow to voting rights came in 2013 with the Supreme Court’s decision in Shelby County v Holder that Section IV of the VRA is unconstitutional and violated the rights of states. Section IV (b) lays out the coverage formula that determined which states’ voting reforms would be subject to federal approval under Section V. The Court’s decision relinquished states with a history of voter discrimination, such as Texas and Alabama, from federal approval as a requisite before changing voting laws. Chief Justice John G. Roberts, Jr. delivered the opinion of the 5–4 majority claiming “that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” He cited the fact that “minority candidates hold office at unprecedented levels” as proof that the VRA is no longer necessary to protect the right to vote.

However, as Justice Ruth Bader Ginsburg so aptly stated in her dissent, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory charges is like throwing away your umbrella during a rainstorm because you are not getting wet.” It was only after the Supreme Court decision that the above Texas voter ID law was enacted. Berman went on to cite a laundry list of discriminatory voting laws put into place following the decision: South Carolina eliminated same day voter registration, pre-registration, and citizens’ awareness month; and Alabama passed a voter ID law and subsequently closed 31 DMV’s in majority Black counties across the state. These recent events and restrictive legislation paint a bleak picture for the future voting rights, but Berman and the others on the panel were not defeated.

Looking Ahead

Leah Wright Rigueur, Assistant Professor of Public Policy at Harvard Kennedy School and chair of the Race and American Politics Seminar Series, asked the panel if they could discern any glimmer of hope in the future of voting rights. Lani Guinier, the Bennett Boskey Professor of Law at Harvard Law School, proposed we look to the Scandinavian democracies for more equitable voting models: “We are far behind other countries in the right to vote. By looking at other countries, and comparing their voting structures to the United States’, we can hopefully gain exposure to the faults of the American model.”

In countries like Denmark, Norway and Finland, for example, the government is responsible for facilitating voter registration, and there are very few attempts to restrict minority communities from casting their ballot. Then again, Nordic countries do not have minority groups that are as large as those in the United States. Still, it is Professor Guinier’s hope that embarrassment at the recent discriminatory voting laws will prompt democratic freedom loving Americans into action to fight for everyone’s right to vote.

Hannah Hilligoss is a research and program assistant for the Democratic Governance Program and the Transparency for Development Project at the Ash Center for Democratic Governance and Innovation.

Charlie Pioli is a sustainability professional and data analyst.

NOTES

[1] 383 U.S. 301. South Carolina v. Katzenbach (№22, Orig.). Argued: January 17–18, 1966. Decided: March 7, 1966WARREN, C.J., Opinion of the Court. https://www.law.cornell.edu/supremecourt/text/383/301#writing-USSC_CR_0383_0301_ZO.

Originally published at www.challengestodemocracy.us.

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