The Voting Rights Act of 1965 secured the right to vote for racial and language minorities and prohibited discrimination in voting. Prior to the passage of this law, the Constitution granted each individual state broad autonomy in determining the voter qualifications that it wanted to set for its elections. From Jim Crow laws, to literacy tests, to poll taxes and property-ownership requirements, Southern states enacted a plethora of laws intended to disenfranchise minority voters and uphold the power of the majority. While the Civil Rights Act of 1957 attempted to address some of these ills, strict legal standards, procedural roadblocks, and malfeasance on the part of local officials made it an ineffective tool to remedy individual grievances. Even the Civil Rights Act of 1964 failed to adequately protect minority interests. But in the wake of the peaceful protests in Selma, President Lyndon B. Johnson directed legislators to enact sweeping voting rights legislation, and just two days later, the Voting Rights Act of 1965 was born.
Though the Act contained a number of general and special provisions designed to prohibit discriminatory practices, voter suppression continues even today, disenfranchising large swaths of our nation’s electorate.
Prior to the passage of the Voting Rights Act, Southern Democrats were perhaps the greatest proponents of minority disenfranchisement. After the Act was signed into law, however, there was a political realignment, with the Democratic Party becoming more liberal and the Republican Party more conservative. At the same time, majority/minority districts were being drawn in an effort to address vote dilution — the use of redistricting to “crack” or “pack” the minority vote. While this successfully increased elected minority representation, it incidentally decreased the influence of white Democrats and increased Republican representation on the whole. And while Sections 2 and 5 of the Voting Rights Act prohibit jurisdictions from engaging in gerrymandering, the practice continues into the present and has been used to disenfranchise many of our peers.
So how, exactly, do states disenfranchise minority voters?
VOTER ID LAWS
Proffered as a way to counteract fraud, voter ID laws may have the unintended (intended?) consequence of disenfranchising minority voters. As discussed two weeks ago, racial minorities suffer enormous economic inequality in this country stemming from centuries of oppression, which means that many lack the resources to obtain a government-issued ID. Consider, in order to obtain an ID, you likely have to pay a fee, obtain your birth certificate (which often involves a fee itself), and present yourself at the DMV, many of which only operate during standard working hours and require protracted waits. In practice, this essentially acts as a poll tax and has the ancillary effect of disenfranchising impoverished communities.
As it stands, according to surveys and independent studies, millions of voting-age Americans do not possess government-issued photo identification. And it has been argued that these individuals are more likely to be racial minorities. According to this report, for example, non-white voters in Michigan were five times as likely to lack ID as white voters. And while other studies offer alternative findings, suggesting less of a race-based impact, we know that officials often corrupt race-neutral legislation in order to advance their own racist aims. Take Georgia, for example. Georgia’s “exact match” law may not have seemed discriminatory on its face, but of the 51,000 voters flagged in 2018, 80 percent of them were minorities. Thus, it seems fair to say that, whether or not these laws are inherently discriminatory, they are often used as tools to discriminate, nonetheless.
DISENFRANCHISEMENT OF FELONS
As discussed in last week’s explainer, Black people are disproportionately represented in our criminal justice system, and legislators have long used this fact to their advantage. Since Black people are prosecuted for felonies at a higher rate than their white counterparts, laws that seek to disenfranchise felons — even upon completion of their sentence — are unduly prejudicial. In Florida, for example, prior to the passage of Amendment 4 — a referendum that restored voting rights for felons who had completed the terms of their sentence — more than one in five Black Floridians had been barred from casting a ballot. And even after the measure passed, many still found themselves unable to engage in the civic process due to indigence and unpaid fines. In fact, according to a report by the ACLU and the University of Miami School of Law, the majority of Florida’s indigent defendants are racial minorities, and Black Floridians account for nearly one-third of those who have been disenfranchised in the state, despite making up just 16 percent of the state’s population.
This serves as yet another example of how laws that are seemingly race-neutral can be and are used to disenfranchise marginalized groups.
ACCESS TO POLLING PLACES
According to an analysis of data from the Election Administration and Voting Survey, the U.S. Census Bureau, and local and state voting agencies, counties with larger minority populations have been left with fewer polling sites and fewer poll workers per active voter than those with majority white populations. This is due, in large part, to large-scale cuts that were made after the Supreme Court in Shelby County v. Holder rendered inoperable the “preclearance” requirement of the Voting Rights Act of 1965.
Not only does a reduction in polling places depress voter turnout, it increases wait times for those still attempting to vote. “An analysis by Stanford University political science professor Jonathan Rodden … found that the average wait time after 7 p.m. across Georgia was 51 minutes in polling places that were 90% or more nonwhite, but only six minutes in polling places that were 90% white.” This not only has the effect of deterring others from showing up to the polls, it also increases the likelihood that those waiting in line will be forced to abscond if the wait proves to be too burdensome.
Gerrymandered congressional districts manipulate their boundaries in order to ensure that people of color are either in the minority in their district — so that their votes will be overwhelmed by the majority — or are so intensely concentrated that their votes stand to influence only a minute number of districts.
So how do we fix this?
The John Lewis Voting Rights Advancement Act would amend the criteria for determining which states are subject to preclearance under the Voting Rights Act of 1965. By resolving the concerns expressed in Shelby County v. Holder through the creation of a new coverage formula, the full protections of the Voting Rights Act could be restored.
(The Supreme Court in Shelby struck down the formula for the preclearance requirement — the requirement of states and local governments to clear changes in election laws with the United States Attorney General or the United States District Court for the District of Columbia prior to their enactment — because it was “based on 40-year-old facts having no logical relationship to the present day.” The amended criteria set forth in the John Lewis Voting Rights Act would rectify that.)
Additionally, the For the People Act would expand Americans’ access to the ballot box by modernizing voter registration, placing conditions on removal from voter rolls, restoring voting rights, protecting against deceptive practices, preventing voter intimidation, forming a redistricting commission, instituting nationwide early voting, and strengthening vote-by-mail systems. It is perhaps the most comprehensive bill advanced to date and would address all of the aforementioned concerns while enjoying bipartisan and nonpartisan support from commissions, think tanks, and congressional committees alike.
Critics suggest that the For the People Act infringes upon states’ rights, but as James Madison said in defense of the Supremacy Clause, if federal supremacy were not established, “it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.” Indeed, it has long been established that Congress has the power to protect the voting rights of citizens, which is why the Voting Rights Act of 1965 preempted state constitutions.
Other criticisms and their associated fact-checks can be found here.
If you would like to get involved with a voting rights organization, consider joining or supporting the American Civil Liberties Union, the Florida Rights Restoration Coalition, Rock the Vote, When We All Vote, the League of Women Voters, HeadCount, Common Cause, Election Protection, or Spread the Vote.
And if you would like to learn more about the history of voter suppression in America, consider picking up a copy of “Give Us The Ballot: The Modern Struggle For Voting Rights in America” by Ari Berman; “One Person, No Vote: How Voter Suppression Is Destroying Our Democracy” by Carol Anderson; “Lifting as We Climb: Black Women’s Battle for the Ballot Box” by Evette Dionne; “The Fight to Vote” by Michael Waldman; or “Democracy In One Book Or Less: How it Works, Why It Doesn’t, and Why Fixing It Is Easier Than You Think” by David Litt.
A list of black-owned independent bookstores can be found here.