MPP’18 candidate Seth Nelson takes stock of the state of voting rights. What can we do to ensure the work of Dr. King and countless others is not undermined by an administration that casts doubt on the integrity of our voting system and by legislatures seeking to limit suffrage through discriminatory voter laws? Read this post to find out.
By Seth Nelson
On Sunday, March 7, 1965, activist John Lewis led 600 marchers across Selma’s Edmund Pettus Bridge to begin the long walk to Montgomery in protest of Jimmy Lee Jackson’s fatal shooting by an Alabama state trooper. Before the marchers could reach the other side of the Alabama River, their path was blocked by a line of Alabama state troopers and local police who ordered them to turn back. The marchers refused, and were met with tear gas and beaten violently with billy clubs, all while the world watched live on television. “Bloody Sunday” eventually culminated in the Voting Rights Act (VRA) of 1965, marking one of the most important pieces of civil rights legislation in America’s history.
The right to vote in the United States has a long and sordid history. Suffrage is nearly universal among citizens, but as Harvard Kennedy School professor Alexander Keyssar notes in his book The Right to Vote: The Contested History of Democracy in the United States, “it remains contested at the margins—and the margins are broad.”
Who are those in the margins? Often, they are poor, less educated, and from groups targeted in past disenfranchisement efforts. From the signing of the Constitution to the Civil War, the marginalized included most everyone except property owning white males, with property restrictions gradually easing over time.
African American men, though formally given the right to vote following the Civil War, were marginalized through decades of gradual erosion by Southern states restricting the franchise through Jim Crow. Women, marginalized until the states ratified the 19th amendment in 1920. Finally, the Federal Government assumed the role of protecting the right to vote with the VRA of 1965, tearing down the barriers of Jim Crow and bringing the United States close to universal suffrage.
The path to near universal suffrage was marred by forces of resistance that often succeeded in restricting the vote. Those with power rarely want to extend the privilege of power to those who don’t have it. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society,” wrote Chief Justice Earl Warren (Reynolds vs. Sims, 1964), “and any restrictions on that right strike at the heart of representative government.” The vote is the voice of the people—restricting it weakens the very nature of democracy.
An Assault on Suffrage: Shelby v. Holder
The Supreme Court dealt a major blow to voting rights in June 2013, declaring a key section of the VRA unconstitutional. Section 4(b) stipulates that certain states and counties with a history of discrimination must comply with Section (5), which requires approval from the Justice Department when writing new voting laws or making changes to existing voting laws.
Chief Justice Roberts wrote, “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” The Court struck down Section 4(b), declaring that Congress must update the coverage formula, weakening the force of the law until updated. Prior to Shelby v. Holder, 9 states and certain other counties required preclearance from the Justice Department before enacting new voting laws or changing existing voting laws. Without the coverage formula in place, the approval process has essentially been gutted.
Discriminatory laws, while still prohibited under the VRA, can now be more easily implemented without the coverage formula requiring Justice Department approval for those states and counties with histories of discrimination. Instead of automatic review of new or modified voting laws, case-by-case litigation is the main source of protection from discriminatory voting laws. As the Brennan Center for Justice explains, “many jurisdictions would alter or abandon a proposed change after receiving inquiries from the Justice Department; from 1999 to 2005, no less than 153 requests for preclearance were withdrawn and 109 were modified in response to the Justice Department’s concerns.”
Almost immediately following the decision, states moved forward with voting laws previously subject to Justice Department approval. For example, in 2011, the state of Alabama passed a law requiring photo identification to vote beginning with party primaries in June 2014. Alabama, one of 9 states with a history of discriminatory voting laws requiring approval, had not yet submitted the new voting law for Justice Department review. The same day as the Supreme Court’s decision, Alabama announced they would move forward on enforcing the new photo ID law.
Two years later, Alabama faced a budget crisis and announced the closing of 31 driver’s license offices across the state—even though a driver’s license is one of the few photo IDs accepted at the polls. To make matters worse, these offices were predominantly located in the state’s “Black Belt” region, which is largely African American. Before the Supreme Court’s decision, the VRA likely would have prevented Alabama, a state with a well-documented history of voting rights abuses, from implementing this law.
Prior to the 2016 election, 14 states enacted new voting restrictions—introducing photo ID requirements, registration restrictions, early voting cutbacks, and fewer poll locations. 7 of those 14 states—Alabama, Arizona, Mississippi, South Carolina, Texas, Virginia, and North Carolina—would have been either fully or partially subject to preclearance under the VRA prior to Shelby v. Holder.
One of the most controversial actions taken in response to Shelby v. Holder, demonstrating the need for federal preclearance, took place in North Carolina. The state passed a law cutting a week of early voting, eliminating same-day voter registration and out-of-precinct voting, reducing polling locations and hours, and introducing requirements to show specific types of voter ID. A federal appeals panel struck down the law, calling it “the most restrictive voting law North Carolina has seen since the era of Jim Crow,” and charging that Republican lawmakers targeted “African Americans with almost surgical precision.”
After civil rights groups sued the state, the most controversial aspects of the law were struck down, but some parts were allowed to remain in effect, including reduced polling locations and hours. With federal preclearance essentially gutted without an updated coverage formula, states and counties with a history of voting rights abuses can pass new laws having the potential to disenfranchise millions. Democrats routinely charge Republicans with pursuing voter suppression strategies keeping poor and minority communities from the ballot box. Republicans say these laws are important for reducing voter fraud, despite only a few claims of credible fraud cases in most elections.
Can We Restore the VRA?
The political landscape for restoring the VRA looks grim. Congresswoman Terri Sewell from Alabama’s 7th district, home to Selma, introduced the Voting Rights Advancement Act of 2015, but the bill failed to reach a vote on the House floor. Additionally, the newly confirmed Attorney General, former Senator Jeff Sessions of Alabama, believes that voter fraud is a widespread problem and supports voter ID laws. “We have seen fraud repeatedly and there is a problem if you don’t use an ID when you go to vote, because you can vote for some other name that you know is not available to vote that day,” he said prior to the election.
Attorney General Sessions has a history of prosecuting controversial voter fraud cases, most notably in 1985 as the U.S. Attorney in Alabama, where he brought a case of voter fraud against three African-American civil-rights activists, including a former ally of Dr. King who marched in Selma. In his confirmation hearing for Attorney General, Senator Sessions called the VRA “intrusive” and thinks “voter ID laws properly drafted are okay.”
President Trump continues asserting that three to five million unauthorized immigrants voted illegally in the 2016 election, despite any evidence to back such a claim. The President tweeted he would order a “major investigation” into voter fraud and White House press secretary Sean Spicer suggested the investigation will primarily target states that “we did not compete in.” Civil rights organizations and progressive activists fear the President’s claims are a pretense for further voter suppression efforts—via lackluster enforcement of the VRA at the Justice Department or through more comprehensive federal legislation.
Fight for the Right to Vote
How can the right to vote for those at the margins be protected given the assaults on suffrage coming from the Trump Administration? One way is by hounding members of Congress when new legislation is introduced restoring the invalidated portions of the Voting Rights Act—or if new legislation is introduced further undermining it.
According to the Brennan Center for Justice, legislatures in 29 states have introduced at least 87 bills in 2017 restricting access to registration and introducing stricter voter requirements. These range from bills calling for stricter photo ID at the polls to requiring documentary proof of citizenship for registration. Because the majority of voting law activity comes at the state level, it’s even more important to connect with state representatives and senators to voice concerns about these bills.
Supporting easier access to the ballot at the state level is equally as important. For example, traditionally Democratic strongholds like Oregon, California, Vermont, Connecticut and the District of Columbia have all passed automatic voter registration laws. Alaska and West Virginia—states that voted for Donald Trump—also passed automatic voter registration laws in 2016. Actively calling legislators in states considering changes to voting laws can have a big impact.
According to the Brennan Center for Justice, legislatures in 43 states have introduced at least 478 bills in 2017 to provide greater access to the ballot. These include bills introducing automatic voter registration, allowing online voter registration, increasing early voting and absentee voting, and restoring the vote to persons with criminal convictions.
Restrictions on the right to vote are, unfortunately, more likely with a weakened VRA. States that passed voter ID laws limiting the franchise are unlikely to reverse course without legal challenges. Supporting organizations diligently working to challenge laws under Section (2) of the VRA, prohibiting voting practices discriminating on race, color, or membership in a language minority group, may be the most effective action a citizen can take.
Such legal challenges can help prevent blatantly discriminatory laws like those passed in North Carolina following Shelby v. Holder from going into effect. Additionally, volunteer your time with organizations helping citizens overcome barriers to the ballot box via voter registration drives or assistance obtaining acceptable voter IDs.
Selma, 50 Years Later
50 years after “Bloody Sunday,” President Barack Obama stood at the foot of the Edmund Pettus Bridge, commemorating the site of one the nation’s darkest struggles. “Right now, in 2015, 50 years after Selma, there are laws across this country designed to make it harder for people to vote. As we speak, more of such laws are being proposed. Meanwhile, the Voting Rights Act, the culmination of so much blood, so much sweat and tears, the product of so much sacrifice in the face of wanton violence, the Voting Rights Act stands weakened, its future subject to political rancor.”
President Obama probably didn’t envision that his successor, upon winning the Presidential election, would question the integrity of the American voting system. He probably didn’t foresee that the next Attorney General would treat the enforcement of the VRA as a partisan issue, breaking with previous Administrations since its passing.
“Democracy therefore must remain a project,” Alex Keyssar writes in The Right to Vote, “Something to be endlessly nurtured and reinforced, an ideal that cannot be fully realized but always can be pursued.” While nearly universal, the right to vote must be nurtured and reinforced. History shows that the struggle for the right to vote has been anything but easy, and often deadly. Remaining vigilant, actively resisting voting restrictions and championing easier access to the ballot, is essential in advancing the cause of democracy.
Seth Nelson is an MPP ‘18 candidate at the Harvard Kennedy School and a Research Assistant at the Ash Center for Democratic Governance and Innovation. Before Harvard, Seth served with AmeriCorps in Alabama, training college students to prepare income tax returns in underserved communities across the South. Seth’s interests include voting rights, electoral reform, and southern state & local politics.