The withdrawal of federal troops from the South in 1877 ushered in the Jim Crow era. Put into place state by state over several decades, Jim Crow imposed legally sanctioned segregation made possible by the disenfranchisement of Black Americans. C. Vann Woodward writes in The Strange Career of Jim Crow:
The effectiveness of disfranchisement is suggested by a comparison of the number of registered Negro voters in Louisiana in 1896, when there were 130,334 and in 1904, when there were 1,342. Between the two dates the literacy, property, and poll-tax qualifications were adopted. In 1896 Negro registrants were in a majority in twenty-six parishes—by 1900 in none.
In spite of the ultimate success of disfranchisement, the movement met with stout resistance and succeeded in some states by narrow margins or the use of fraud. In order to overcome the opposition and divert the suspicions of the poor and illiterate whites that they as well as the Negro were in danger of losing the franchise—a suspicion that often proved justified—the leaders of the movement resorted to an intensive propaganda of white supremacy, Negrophobia, and race chauvinism. Such a campaign preceded and accompanied disfranchisement in each state.
Jim Crow was not merely a Southern institution. It was an integral element in FDR’s Democratic coalition and served as scaffolding for Democratic majorities in Congress well into the 1960s, when Lyndon Johnson made the commitment to enact historical civil rights legislation (knowing full well that the Solid South would shift from Democratic to Republican).
Fifty-five years ago today, President Johnson signed the 1965 Voting Rights Act. John Lewis, whose recent passing has focused attention on voting rights, was present at the signing.
LBJ’s signature brought an abrupt end to a vile era in American history. In the view of the Department of Justice (circa June 2009), the law proved to be extraordinarily effective.
Soon after passage of the Voting Rights Act, federal examiners were conducting voter registration, and black voter registration began a sharp increase. The cumulative effect of the Supreme Court’s decisions, Congress’ enactment of voting rights legislation, and the ongoing efforts of concerned private citizens and the Department of Justice, has been to restore the right to vote guaranteed by the 14th and 15th Amendments. The Voting Rights Act itself has been called the single most effective piece of civil rights legislation ever passed by Congress.
That 2009 assessment (near the beginning of the Obama administration) looks somewhat dated now, in the second decade of the 21st century, as the United States Supreme Court – led by Chief Justice John Roberts, who has made a career out of battling the Voting Rights Act – has persistently chipped away at the right to vote in subsequent years.
In 2013 in Shelby County v. Holder, Roberts, writing for a 5-4 Republican majority of the Supreme Court, struck down the Justice Department’s authority to subject states and local governments with a history of discrimination in voting to “pre-clearance” requirements when changing voting laws and procedures. While the law still stands, the ruling stripped away the most effective means of enforcing it.
In his opinion, Roberts wrote that in the jurisdictions subject to pre-clearance since 1965, Black registration has increased substantially. “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”
Ruth Bader Ginsberg, in her dissent, replied: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Richard Hasen notes in Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy:
Justice Ginsburg was right that the law served as a deterrent and that bad behavior would quickly return upon its removal. Within hours of the Shelby County decision, Texas announced it would immediately enforce its law requiring those wanting to vote to provide one of a limited number of types of photographic identification. Student IDs were unacceptable, but concealed handgun permits were allowed.
Other states soon followed with a range of suppression measures targeting Democratic constituencies:
Closing polling places to create voting deserts. By election day in November 2018, the Leadership Conference Education Fund found that 1,688 polling places had been closed.
Cutting back on early voting. Although more than two-thirds of the states permit early voting, a number have implemented cutbacks. Governors, secretaries of state, and state legislatures are generally discreet about announcing their intent, but not always. North Carolina (in a court filing) acknowledged restricting Sunday voting because “[c]ounties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic.”
Fewer voting places and fewer days to vote results in longer lines in selected neighborhoods.
Wholesale purges of voting rolls. Between 2016 and 2018 more than 17 million names were removed from voting rolls nationwide. The Supreme Court has ensured that states have wide latitude to conduct such purges – even when there is evidence that lists of voters to be purged are riddled with errors.
Ari Berman comments (“Republicans Are Trying to Kick Thousands of Voters Off the Rolls During a Pandemic”):
There’s nothing inherently wrong with updating registration lists to remove the names of people who have become ineligible to vote. “We want election administrators to have the tools they need to make sure that the records are clean,” says the Brennan Center’s Pérez. But recent examples show that some purges mislabel thousands of eligible voters, disproportionately Democrats and people of color.
The Chief Justice is often the swing vote on the Roberts Court, forming a majority with liberals on one case, then with conservatives on another. But on issues of voting rights, gerrymandering, and campaign finance – all central to the Republican Party’s electoral strategy as its voting base shrinks – Roberts almost invariably sides with the GOP.
Earlier in 2020, conservative majorities led by the Chief Justice have weighed in numerous times on voting rights:
In April the Court ruled 5-4 in favor of the Republican National Committee in blocking a lower court ruling that gave Wisconsin voters an extra six days to return ballots.
In July the Court reprised the Wisconsin decision with rulings in Alabama and Texas cases. The Alabama ruling carried with the same 5-4 majority, though there were no dissents to the Texas ruling.
Later in July the 5-4 conservative majority sided with Republican officials in Florida in upholding an appellate court ruling that blocked felons from voting if they could not afford to reimburse the state for court costs, just a poll taxes barred voters in the Jim Crow era.
LBJ’s signature on the Voting Rights Act transformed both of the country’s political parties. As white Southerners abandoned it, the Democratic Party became a highly diverse coalition, while the GOP, a half century later, is mostly white and led by a man who sees “very fine people” among white supremacists and neo-Nazis.
On Tuesday, Donald Trump celebrated the vote by mail system in Florida (where Trump casts his mail-in ballots). The day before he blasted vote by mail in Nevada, complaining that it would make it “impossible for Republicans to win the state,” and promising litigation.
We can count on litigation aplenty. President Trump is hellbent on casting doubt on the integrity of the November election. Through tweets, interviews, and musings to the press, he throws up nonsense, conspiracy theories, and whiny accusations — all instances of Steven Bannon’s tactic for muddying the waters (“flooding the zone with shit,” in his words). All of this advances the politics of grievance and provides fodder for (heretofore) spurious legal claims.
It’s possible that the Supreme Court will decide the November election — as the it did in 2000 in Bush v. Gore — but if the decision turns on issues related to the Voting Rights Act, there is little doubt that John Roberts will be among the five conservative Republican men in the majority.
The surest way to prevent that: clear, decisive victories for Joe Biden at the ballot box in enough states to make the outcome indisputable.
(Image of President Johnson, at the signing ceremony of the Voting Rights Act, with Martin Luther King Jr.: LBJ Presidential Library.)