Suppressing the Vote
by Carlton Martz
Although the original Constitution and Bill of Rights did not mention the right to vote, it was implied to exist. The right to vote gradually was expanded throughout the nation’s history. Political parties still sometimes tried to suppress (block) the vote of certain groups. Today, some argue that laws to prevent voter fraud are just another form of suppressing the vote.
During Reconstruction after the Civil War, former male slaves used their 15th Amendment right to vote in large numbers and elected black representatives to Southern state offices and the U.S. Congress. Those new black voters in the South solidly voted Republican, the party of President Abraham Lincoln. But when Reconstruction ended in 1877, Southern Democrats assumed power. They used election fraud and then the law to suppress voting by black men to secure white political control.
Starting with Mississippi in 1890, the Democrats enacted new state constitutions that enabled “Jim Crow” voting laws. Jim Crow was a stereotyped black theater character that came to symbolize laws that discriminated against black people in the South.
For example, Jim Crow voting laws in Alabama made property ownership a requirement for voting when most black families rented land from white owners. Alabamans also had to pay an annual poll tax to vote, which was a burden on both poor black and white men.
The most effective voter suppression against black men was the literacy test. Most southern states before the Civil War had prohibited teaching slaves to read and write. After the Civil War, black adults and children in the South were able to become literate in their own schools. However, the literacy test was always judged by a white registrar of voters. In Mississippi, the registrar chose a section of the state constitution for the person to interpret. This could be a short simple sentence for a white man or a complicated section for a black man. The white registrar then decided if the man had passed, and in most cases the white man did while the black man did not.
Alabama’s Jim Crow voting laws and similar ones in other Southern states caused black voter registration and voting to drastically fall. A newspaper in Selma, Alabama, noted that this “was necessary to maintain white supremacy in the state.”
There were other barriers to black men voting. Some states required a white registered voter to vouch for the “good character” of a black man registering to vote. White men did not have to meet a character test.
White employers of black workers would sometimes fire those who successfully registered to vote. This was made easier when their names were published in the local newspaper. Then with the rise of the Ku Klux Klan, violence intimidated many black men from even trying to register and vote.
The loss of black Republican voters led to the near disappearance of that party throughout the South. Democrats barred black people from voting in their primary elections.
In 1903, the U.S. Supreme Court ruled that it had no authority to stop states from limiting voting. By 1940, only three percent of eligible black men and women were registered to vote in the entire South. (Women gained the right to vote with the ratification of the 19th Amendment in 1920.)
Black voter suppression remained widespread in the South until the 1950s and 60s when the civil rights movement emerged. In 1964, Martin Luther King and the Southern Christian Leadership Conference chose Selma, Alabama, as one of the testing grounds for registering black people to vote.
On Sunday March 7, 1965, several hundred civil rights protesters from Selma organized a march to the Alabama state capital, Montgomery, to demand the right to vote. On the way out of town, however, they were blocked at the Edmund Pettus Bridge by city police, state troopers, and a volunteer sheriff’s posse on horseback.
The marchers stopped and knelt to pray. When they refused an order to disperse, the lawmen released tear gas and beat the marchers with clubs and whips.
The violent attack on “Bloody Sunday” was filmed by TV news cameras and broadcast throughout the country that evening. The nation was shocked.
The Voting Rights Act of 1965
In response to the events at Selma, President Lyndon Johnson, a Democrat, federalized the Alabama National Guard that protected the marchers when they resumed their way to Montgomery several days later. Johnson and his attorney general had been working on a new voting rights bill for a while, waiting for the best moment to submit it to Congress. This was that moment.
Johnson made his case in a rare speech directly to Congress. The bill he was proposing was not only for black people, he declared, “because . . . really it is all of us, who must overcome the crippling legacy of bigotry and injustice.”
Johnson’s Democratic majority in Congress with the support of many northern Republicans overcame opposition from Southern Democrats and passed the Voting Rights Act of 1965. The act made it unlawful for any state “to deny or abridge the right of any citizen of the United States to vote on account of race or [skin] color.”
The Voting Rights Act banned literacy tests in those states, called “covered states,” that had a long history of suppressing black voter registration and voting. This included seven Southern states as well as certain areas outside the South. For example, black voter registration in Alabama in 1965 was 19.3 percent contrasted to white registration at 69.2 percent.
The most radical part of the Voting Rights Act required the covered states to seek approval from the Justice Department or a federal court before they made any changes to their voting laws. This unprecedented intrusion into states’ rights by the federal government became known as “preclearance.”
In 1966, the Supreme Court decided the Voting Rights Act was constitutional. A year earlier, the 24th Amendment had banned poll taxes in federal elections. The Supreme Court later ruled they were unconstitutional in local and state elections.
The Voting Rights Act of 1965 produced a quick and sharp increase in black voter registrations and voting in the South. Politically, many white southerners abandoned Johnson’s Democratic Party and voted increasingly Republican. At the same time, most black people across the U.S. became solid voters for the Democrats who now championed their cause for equal rights.
Democrats and Republicans in Congress and the White House joined to renew the Voting Rights Act four times; the last was in 2006 for 25 years. This kept the preclearance requirement in place for the covered states.
Shelby County, Alabama v. Holder
In 2008, Calera, Alabama eliminated its sole black majority city council district by annexing a larger white area to it. The city did this despite preclearance rejection by the Justice Department. The Justice Department then sued Calera to restore the original district lines after the new white majority in that district voted to replace the only black city councilman with a white one.
Alabama’s Shelby County, which includes Calera, then sued Eric Holder, President Barack Obama’s attorney general and head of the Justice Department. The county claimed that the Voting Rights Act itself was unconstitutional.
In 2013, the Supreme Court did not find the entire Voting Rights Act unconstitutional, but did rule that a key provision was. This was the section of the act that identified those covered states, counties, and towns that were subject to preclearance of any changes in their voting laws.
Writing for the 5–4 majority, Chief Justice John Roberts stated that the black voter suppression conditions in Alabama and the other states that were covered by the Voting Rights Act in 1965 no longer existed. Black voter registration and turnout in elections were now comparable and sometimes exceeded that of white voters. Literacy tests were long gone. Many black people had been elected to local, state, and federal offices throughout the South. Even Selma, Alabama, had a black mayor. “Nearly 50 years later, things have changed dramatically,” Roberts concluded.
Writing for the four dissenters in the decision, Justice Ruth Bader Ginsburg acknowledged that significant progress had been made in ending “first generation barriers” like literacy tests. But “second generation barriers” were taking their place, she wrote. She pointed to the 2008 case of Calera where district lines were changed to assure a white majority. She also cited evidence that between 1982 and 2006 the Justice Department had used preclearance to block over 700 proposed voting changes, the majority of which were intentionally created to suppress racial minority voters from voting. Ginsburg concluded that “preclearance remains vital to protect minority voting rights and to prevent backsliding.”
The Shelby County majority decision ended the voter suppression status of all those states covered by the Voting Rights Act. Those states now could change their voting laws without having to get preclearance from the Justice Department.
No longer needing preclearance, many Southern state legislatures, now controlled by Republicans, did not wait long to change their voting laws. Two hours after the Supreme Court announced its Shelby County decision, the Texas state legislature passed a law that required showing a government-issued photo ID like a driver’s license before voting. This seemingly easy requirement was not so easy for many.
The Photo ID Debate
The states that had once been covered by preclearance were not the only ones passing photo ID laws. State legislatures across the country that were often controlled by Republicans had already begun to pass variations of these laws. The Republicans argued that government-issued IDs were necessary to prevent fraud when a person voted. Opinion polls showed that a large majority of Americans supported this.
However, the only fraud that voter IDs could stop were people trying to impersonate others on the voting roll like those who had died. Multiple studies have shown this to be very rare in the U.S. where such an act is a crime.
Democrats cried foul when it became clear that large numbers of racial minorities, poor people, immigrants, and college students who tended to vote Democratic lacked even a driver’s license. To get a driver’s license, U.S. passport, or some other government photo ID, individuals had to present copies of documents like a birth certificate that they may have to order for a fee. This especially appeared to be a greater burden for racial minorities who lacked a state-approved photo ID more than whites did.
In a 2008 Supreme Court case involving Indiana’s voter identification law, over 80 percent of white voters possessed an acceptable photo ID while only 55 percent of black voters did. Also, the state could not show one example of voter impersonation fraud in Indiana’s history. Nevertheless, the justices ruled 6–3 that preserving the trustworthiness of voter identity justified some citizen inconvenience to show a photo ID.
Voter Fraud or Voter Suppression?
Mainly Republican state legislatures enacted other voting regulations that they said were necessary to prevent voter fraud and preserve confidence in election results. Democrats charged these acts suppressed voting in racial minorities.
Several states aggressively purged (removed) voters from the voting rolls because they had died, not voted in recent elections, may have moved, or their registration signature lacked an exact match with a government-issued ID. But data showed minorities and others who tended to vote Democratic were purged more often than those who tended to vote Republican.
Some states that allowed early voting to eliminate lines on Election Day cancelled Sunday voting. This halted the common practice of black churchgoers being bused after their services to vote at an early voting site.
A dozen states permanently banned felons who had served time in prison from regaining their right to vote. This hit minority communities hard because of the 1970s and 1980s “war on drugs” that sent black people to prison at a greater rate than white people for similar drug offenses.
Polling places in minority areas were sometimes eliminated, resulting in longer distances for minorities to travel and vote on Election Day.
Many studies, including one by Republican President George W. Bush’s Justice Department in 2007, have found relatively few examples of voter fraud or other kinds of election corruption. However, a 2017 study by the conservative Heritage Foundation reported 1,088 cases of fraud in 47 states that resulted in 949 criminal convictions. But these cases were over a period of five years and were few in number compared to the billions of votes cast. For example, there were only ten cases of impersonating someone at a polling place and 41 cases of non-citizens registering or voting.
Potentially the most serious kind of fraud is not by voters but by party workers collecting absentee ballots from voters, a practice called “harvesting.” During the 2018 congressional election in North Carolina, a campaign coordinator hired by the Republican candidate paid workers to harvest hundreds of absentee ballots from voters, which is illegal in the state. Workers then filled out blank or partially completed absentee ballots and forged voter signatures.
In 2018, the U.S. Commission on Civil Rights, a bipartisan (Democrat and Republican) independent agency of the federal government, issued a report on the impact of the numerous anti-fraud voting laws on minority voting. The Commission found that across the country “current conditions include new types of potentially discriminatory voting practices,” which have had an unequal impact on minority and poor citizens.
Expanding the Vote
While some states have chosen to put restrictions on voting to prevent voter fraud and assure public confidence in the election system, other states and Democrats in Congress are focused on expanding the vote through a range of policies, including:
- automatic voter registration when someone applies for or renews a driver’s license
- allowing registration and voting on Election Day early voting, including on Sunday
- expanding voting by mail-in absentee ballot
- restoring the right to vote of felons who have served their sentences
- restoring preclearance for those states previously covered by the Voting Rights Act
Nearly a dozen democracies in the world have compulsory voting, which requires eligible citizens to register and vote in elections or pay a fine. For example, Australian voters must appear at their polling place, but may choose not to mark the ballot. The current fine for not showing up on Election Day without an approved excuse is $20. Voter turnout is usually over 90 percent in Australia contrasted to 58 percent in the 2016 U.S. presidential election.
Those who support compulsory voting consider it a citizen’s duty like paying taxes, jury duty, and compulsory schooling. This voting system tends to minimize the election of extreme candidates and boost moderate ones.
Critics of compulsory voting do not like the idea of pushing people who may know little about the candidates and election issues into the voting booth. In the U.S., Democrats would probably benefit more than Republicans because nonvoters tend to favor the Democratic Party.
This article was originally published in the Summer 2019 issue of Bill of Rights in Action (BRIA), the quarterly curricular magazine of Constitutional Rights Foundation. Click here for a classroom activity on this article, plus writing and discussion questions for use with high school students. You can also subscribe to BRIA for free here.
