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August 2015 Issue [Reviews]

Old Poison, New Battles

The ongoing struggle for voting rights

Discussed in this essay:

Give Us the Ballot, by Ari Berman. Farrar, Straus and Giroux. 358 pages. $27.

The Fifteenth Amendment to the U.S. Constitution, which was ratified in 1870, declares that “the right of citizens of the United States to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” It also stipulates that “Congress shall have power to enforce this article by appropriate legislation.” For a century after the collapse of Reconstruction, officials sworn to uphold the Constitution used obstruction, evasion, intimidation, and fraud to negate the amendment and to effectively nullify the political participation of black citizens. White primaries excluded blacks from any role in selecting Democratic Party candidates — tantamount to eliminating black political influence altogether in Southern states, which were subject to one-party rule. The infamous “grandfather clause” raised literacy requirements for voting but created an exception for those whose forebears had been eligible to vote in 1866. The obvious purpose was to take the vote away from poor, unlettered blacks while sparing poor, unlettered whites. Racial gerrymandering was another widely used device for disfranchisement: in 1957, for example, the legislature of Alabama redefined the electoral boundaries of Tuskegee in such a way as to disqualify as voters all but four or five of its four hundred registered black voters, a task it accomplished without disturbing even a single white voter. State officials also purged blacks discriminatorily from voter rolls and excluded them with laws that authorized registrars to assess whether a potential voter could suitably “understand and explain” a given constitutional provision.

A voting line at a general store in Greene County, Alabama, in 1966 © Flip Schulke/Corbis

A voting line at a general store in Greene County, Alabama, in 1966 © Flip Schulke/Corbis

Courts struck down these and other unconstitutional voter-suppression efforts, but litigation was time-consuming. Local officials often disregarded adverse judgments or substituted new schemes as quickly as old ones were invalidated. Meanwhile, private citizens deployed informal obstacles. Bosses threatened to fire black employees who registered to vote. There was also the ever-available weapon of state-tolerated violence. In 1955, in Belzoni, Mississippi, George Lee was murdered after he refused to desist from urging blacks to register to vote. In 1961, in Liberty, Mississippi, Herbert Lee — no relation — was murdered on account of his voting-rights activism. (The local sheriff, who claimed the cause of death was a traffic accident, suggested that the buckshot found in Lee’s face during an autopsy was loose dental fillings.) In 1965, in Marion and Selma, Alabama, Jimmie Lee Jackson, James Reeb, and Viola Gregg Liuzzo were murdered because they had protested black disfranchisement.

The campaign to discourage black voting was appallingly effective. In 1965, at least two thirds of eligible white citizens were registered to vote in every Southern state. Registration among eligible black citizens, meanwhile, ranged from a high of 37 percent, in South Carolina, to a low of 6 percent, in Mississippi. The 15,000 blacks in Dallas County, Alabama, where Selma is located, constituted about half of the voting-age population in 1964, but only 335 were registered to vote, even after multiple Justice Department lawsuits to correct blatant racial discrimination. Writing in the fall of that year, John Doar, a Justice Department lawyer, observed that “the litigation method of correction has been tried harder [in Dallas County] than anywhere else in the South” but had failed to deliver to blacks “the most fundamental of their constitutional rights — the right to vote.”

Although Congress passed civil-rights acts in 1957, 1960, and 1964, Southern segregationists and their allies succeeded in neutering the voting-rights provisions that survived the legislative cauldron. That situation changed dramatically in the spring of 1965, after scores of peaceful demonstrators on a march from Selma to Montgomery (among them John Lewis, who was the chairman of the Student Nonviolent Coordinating Committee at the time) were brutally clubbed on the Edmund Pettus Bridge by state troopers enforcing Alabama governor George Wallace’s pledge that he was “not going to have a bunch of niggers” protesting along a highway in his state. Tapping into public outrage, Lyndon Johnson announced plans for new legislation to a joint session of Congress. He instructed Nicholas Katzenbach, his attorney general, to draft “the goddamdest toughest voting rights act that you can devise.”

The resulting law, the 1965 Voting Rights Act, had three key provisions. First, it suspended literacy tests and similar voting qualifications for five years in those areas in which racial disfranchisement had been most flagrant and pervasive. These were the so-called covered jurisdictions, which included the entire states of Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, as well as most of North Carolina. Second, it required covered jurisdictions to obtain preclearance from federal authorities before imposing any new voting regulations. Finally, it authorized the attorney general to assign federal examiners to register qualified voters in the event that local officials proved recalcitrant. The act, which became law fifty years ago this month, marked the high tide of the civil-rights era.

In Give Us the Ballot, his history of the 1965 Voting Rights Act and the long-running campaign of resistance against it, Ari Berman introduces readers to Ardies Mauldin, a resident of Selma who was the first person registered to vote thanks to the V.R.A. Twice rejected by local officials, Mauldin succeeded in registering with a federal examiner. So did Cager Lee, the grandfather of Jimmie Lee Jackson, whose death at the hands of state troopers galvanized the march that led to the standoff at the Edmund Pettus Bridge. So did Chris Weatherspoon, a black Louisianan who was rejected on five previous occasions by a parish official who had hung a poster behind his desk that labeled Martin Luther King Jr. a Communist.

More blacks were registered to vote during the first five years after the V.R.A. became law than were registered in the South during the century before its passage. Armed with the ballot, blacks were able to put pressure on white politicians, who could no longer wholly ignore them. Commenting on the act’s effects in 1974, Andrew Young — among the first black members of Congress from the South since 1901 — observed:

It used to be Southern politics was just . . . who could “outnigger” the other — then you registered 10 to 15 percent . . . and folk would start saying “Nigra,” and then you get 35 to 40 percent registered and it’s amazing how quick they learned how to say “Nee-grow,” and now that we’ve got 50, 60, 70 percent of the black votes registered in the South, everybody’s proud to be associated with their black brothers and sisters.

Black voters made the difference in the presidential contest that pitted Gerald Ford against Jimmy Carter. Ford won the majority of white voters, but Carter won a sufficient number of liberated black voters to claim the White House (and to create a cliché, as commentators repeatedly remarked, that “hands that once picked cotton now picked a president”). Black electoral power played a large and perhaps decisive role in sinking Robert Bork’s 1987 bid for a seat on the U.S. Supreme Court, when black Southerners informed their senators that they distrusted Bork’s stance on matters of racial justice. Their impressions would not have mattered before the V.R.A.; in its wake, however, their impressions mattered a lot. In 1965, nineteen of twenty Southern senators had opposed the V.R.A. In 1988, fourteen of twenty Southern senators voted against Bork.

The V.R.A.’s emancipation of the Southern black voter has done more than influence white officeholders; it has also led to the election of black officials. Six years after NAACP field secretary Medgar Evers was shot to death outside his home clutching a bundle of T-shirts inscribed jim crow must go, his brother Charles became mayor of Fayette, Mississippi. Selma, Alabama, and Philadelphia, Mississippi (where James Chaney, Andrew Goodman, and Michael Schwerner were murdered during Freedom Summer, in 1964), are rightly associated with memories of white-supremacist despotism; both cities now have black mayors. In the states that the V.R.A. originally designated as covered, there has been a 1,000 percent increase in the number of African-American elected officials.

The V.R.A. has also changed the complexion of officeholders at the federal level. Andrew Young was elected to represent Georgia’s Fifth District in 1972. After he resigned to become Jimmy Carter’s ambassador to the U.N., the seat was filled by Wyche Fowler, a white Democrat with a strong record on civil rights, until John Lewis took it over in 1987. He has held it ever since. The year Lewis was elected, Mike Espy became the first black congressman from Mississippi since Reconstruction. In 1992, sixteen blacks were elected to the House of Representatives, thirteen of whom were from the South. All of them owed their seats to the V.R.A.

The most imposing monument to the influence of the V.R.A. is Barack Obama’s presidency. Obama is not indulging in flattery when he credits Lewis and the other heroes and heroines of the civil-rights movement with making his ascent possible; he is merely stating a fact. In the 2012 presidential election, African-American voter turnout exceeded white voter turnout in five of the six Southern states originally under special supervision by the V.R.A.

Since its birth, in 1965, the law has been reauthorized four times by Congress, which extended it for five years in 1970, for seven in 1975, for twenty-five in 1982, and for another twenty-five in 2006. Along the way, the V.R.A. has simultaneously been broadened and strengthened. Alaska, Arizona, and Texas were added to the list of covered jurisdictions, along with most of New York City and some parts of California, Florida, Michigan, and South Dakota. Literacy and similar tests were permanently banned nationwide. Language minorities received new protections. Congress made it easier for plaintiffs to prove racial discrimination.

While acknowledging the V.R.A.’s success, Berman stresses that it has faced persistent opposition: “The V.R.A. didn’t end the debate over voting rights, it started a new one. . . . It took decades of court battles, grassroots organizing efforts, and groundbreaking political campaigns to protect and expand the right to vote in the wake of the V.R.A.”

As Berman recounts, white supremacists thwarted by the law immediately sought new means of perpetuating their monopoly on political power, resorting to schemes aimed at diluting blacks’ voting strength. The Mississippi legislature gerrymandered district lines, splitting up concentrations of black voters. It reorganized jurisdictions, switching multimember districts that would have allowed the emergence of black officials in predominantly black areas to at-large districts in which a white majority could control every seat. It abolished some elected positions and changed others into appointive offices. Civil-rights lawyers succeeded in removing these racially motivated obstacles to African-American political empowerment, but doing so took time and required resources that could have been put to good use elsewhere.

Berman notes that Richard Nixon only reluctantly signed a reauthorization of the V.R.A., which he tried to curtail with low-visibility bureaucratic shenanigans. Ronald Reagan, who opposed all of the major civil-rights legislation of the 1960s, including the original V.R.A., was similarly reluctant to sign a reauthorization bill. His Justice Department declined to enforce the measures prescribed by the law against his Southern allies who continued to engage in racial discrimination. Political operatives in Louisiana, for example, without any participation by blacks, proposed congressional-district boundaries that would have fragmented the African-American electorate in New Orleans. One of these operatives was reported to have declared, “We already have a nigger mayor . . . we don’t need another nigger big shot.” Career attorneys in the Civil Rights Division of the Justice Department recommended that the department object to the proposed redistricting. Bradford Reynolds, Reagan’s chief of the division and a singularly noxious influence whose evident hostility to the interests of black Americans later prompted the Senate to deny him a promotion to associate attorney general, rejected the recommendation. (Fortunately, a court halted the redistricting plan.)

The Reagan Administration trained and encouraged a cadre of lawyers who came increasingly to view the V.R.A. (at least as it had been interpreted by liberals) as an obsolete and unwelcome federal encroachment on the dignity of the states. One of those lawyers was John Roberts, the current chief justice of the Supreme Court and the author of the single biggest setback that the V.R.A. has yet suffered. On June 25, 2013, Roberts, writing for a 5–4 majority in the case of Shelby County v. Holder, announced that the Court had decided to invalidate Section 4 of the V.R.A., the provision that determines which jurisdictions are subject to the law’s preclearance requirements. Quoting from the Court’s prior validation of the V.R.A., he declared that the legislation

employed extraordinary measures to address an extraordinary problem . . . entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of the country through unremitting and ingenious defiance of the Constitution.”

The V.R.A., he noted, was “strong medicine,” but the court had earlier found that “exceptional conditions can justify legislative measures not otherwise appropriate.” The problem, as the Court saw it, was that Congress had proceeded as if the conditions that justified the initial design of the V.R.A. had remained unchanged. In the Court’s view, fifty years of progress — progress that owed much to the V.R.A. itself — called into question the validity of permitting most states to alter their voting procedures at will while requiring a small subset of states to obtain federal permission before making similar changes. Congress had failed to justify treating covered states more harshly than their uncovered counterparts, especially in light of higher rates of African-American voter turnout and officeholding in covered jurisdictions than in many uncovered areas.

In her dissent, Ruth Bader Ginsburg wrote that Section 4 of the V.R.A. should continue in force, unabated, as Congress preferred, because “continuance would facilitate completion of the impressive gains thus far made . . . [and] continuance would guard against backsliding.” Roberts chastised Congress for failing to recognize that “history did not end in 1965,” while Ginsburg reproved him for ignoring that “what’s past is prologue” and that “those who cannot remember the past are condemned to repeat it.” Moving on from quotations of Shakespeare and Santayana, Ginsburg settled on a homier formulation that prompted amens within the community of activists appalled by the Shelby County decision: “Throwing out preclearance,” she wrote, “is like throwing away your umbrella in a rainstorm because you are not getting wet.” Whether or not to alter the V.R.A. was a judgment call, a matter of policy, which was Congress’s prerogative. The Court was merely substituting its erroneous preferences for those of the Congress, and therefore belying the conservative dogma of judicial restraint.

Berman agrees with Ginsburg, but he attributes the Court’s decision to something more nefarious than error. He portrays Shelby County as a shrewd and cynical example of judicial jujitsu — an essentially malevolent effort to destroy the V.R.A. with its own success:

The revolution of 1965 spawned an equally committed group of counter-revolutionaries [who] have waged a decades-long campaign to restrict voting rights. They have served in the highest echelons of power and, in recent years, controlled a majority on the Supreme Court. They have set their sights on undoing the accomplishments of the 1960s civil rights movement, including the V.R.A. The voting rights revolution and counter-revolution have been intertwined.

This counterrevolution, Berman writes, has been extended by a spate of laws enacted around the country in the aftermath of Obama’s ascension to the White House, legislation that Berman describes as “old poison, new bottles.” Justified as a defense against voter fraud — a negligible problem that Republicans portray as a major threat — these new laws make it more difficult for people to register to vote and to cast their ballots. The laws require prospective voters to produce not merely credible documentation that they are who they claim to be (say, a utility bill) but a form of state-issued documentation of the sort that millions of Americans do not possess and can obtain only with difficulty (a driver’s license, a passport, a military I.D. card). Some of the new laws also require documentary proof of citizenship when registering to vote, do away with early voting, curb the ability of groups to conduct voter-registration drives, eliminate election-day registration, and make it harder for people with criminal convictions to have their voting rights restored.

“The election of the first black president and the resurrection of new barriers to the ballot box were not a coincidence,” Berman writes. When black voter participation increased dramatically, white conservative Republicans reacted by making voting more difficult, and even by withdrawing support for procedures they formerly favored. The Republican Party in Florida, for example, once supported early voting. (“I think it’s great,” Jeb Bush declared in 2004.) But when the Obama campaign effectively mobilized early voters, many Republicans changed their attitude, and the Republican-dominated Florida legislature shrank the early-voting period from fourteen to eight days. (It subsequently re-extended the period in the first legislative session after the 2012 election.)

Berman portrays the new laws as an effective campaign of voter suppression that will affect enough votes to tip close elections — perhaps including a presidential contest. It is a campaign that he thinks is best understood in the context of a tragic and terrifying calamity that occurred at the end of the nineteenth century: the defeat of Reconstruction by the bigots who successfully “redeemed” white supremacy:

After Obama’s election, the climax of decades of struggle to win greater representation, vote denial efforts returned with a vengeance. The high point of the Second Reconstruction spawned a Second Redemption backlash.

Berman writes dispatches for The Nation and other publications about contemporary battles over voting rights. I was predisposed to like his work: his heroes are my heroes; his villains are my villains; his politics are my politics. Why, then, did I feel let down by Give Us the Ballot? I expected that with more room to work Berman would be more ambitious and plunge deeper into his subject. Instead, his book is to a substantial extent a mere compilation of his magazine journalism. While it can be profitably read by anyone seeking basic information about the racial dimensions of voting-rights controversies, it fails to capture the complexity of the modern voting-rights struggle.

Berman gives woefully little attention to the internal conflicts among activists and thinkers who share his commitment to racial justice in electoral politics. Take the example of so-called majority-minority districting. In 1982, the V.R.A. was amended to mandate, under certain conditions, the creation of districts in which minorities would constitute a majority of the population. This reform has significantly contributed to the enlargement of black caucuses in Congress and state legislatures. But a dilemma has long shadowed the strategy: compressing black voters into “safe” districts for black candidates will have the effect of “whitening” adjacent districts. Moreover, packing a majority-minority district with black voters past the point at which blacks can exercise electoral control effectively wastes those extra votes and keeps them from other candidates — typically Democrats — who would eagerly appreciate them. The creation of majority-black districts may increase the number of black representatives in a legislature while lessening the overall political power of black voters. In predominantly white jurisdictions, blacks sometimes exercise influence as swing voters, but that influence can be diminished or lost altogether through majority-minority districting.

These political dynamics have prompted Republican administrations to champion majority-minority districting, which has led to some odd coalitions and fratricidal disputes. When Berman criticizes white Republicans for engaging in segregative districting, however, he aims no criticism at black Democrats who have cooperated. In Berman’s depiction, black politicians and the community of progressives who are fighting the good fight for voting rights are unburdened by internal debates, questions, uncertainties, or dilemmas.

One reason for this blind spot may be Berman’s sourcing. He lists two pages of people he interviewed for his book — politicians, activists, lawyers, and academics (including me). I am sure that the interviews were useful, but I suspect that Berman would have gained a more nuanced understanding from some essential writings that are absent from his notes, writings that may have prompted him to a greater acceptance of complexity and paradox. Many readers drawn to Give Us the Ballot will be familiar with the outlines of the story Berman recounts, but they are less likely to be familiar with the knowledge available in scholarly books and articles. A journalist like Berman can perform a valuable service by canvassing that literature and bringing the best of it to the attention of general readers.

For example, Berman seems to assume that all voting-rights advocates share John Lewis’s view that the Shelby County decision was “a very sad and dark moment for our democracy.” Plenty do share that view, of course, but others do not. Commenting on the decision in the Harvard Law Review, Samuel Issacharoff — a legal scholar who worked on voting-rights legislation for the Lawyers Committee for Civil Rights Under Law and served as an attorney for both Obama presidential campaigns — compared Section 5 of the V.R.A. to an aging athlete, “one step too slow to carry the team.” He suggested that the Court had performed a bittersweet service by forcing it into retirement and expressed hope that voting-rights advocates would consider new mechanisms appropriate to a new era. Such mechanisms, Issacharoff believes, should no longer focus on “the historically central question of racial exclusion.”

In Berman’s narrative, it is incontrovertible that racism is the overwhelming force behind opposition to the V.R.A. and to the restrictive voting legislation that has emerged across the nation over the past several years. But Issacharoff believes that “the category of race increasingly fails to capture the primary motivation for what has become a battlefield in partisan wars.” Notwithstanding the disproportional effects of contemporary voter suppression on black and Latino voters, Issacharoff contends that the main purpose of these efforts is political advantage, and he argues that recognizing this means focusing less on racial discrimination and more on naked partisanship.

Guy-Uriel E. Charles and Luis Fuentes-Rohwer struck a similar, if less definite, note in the Yale Law Journal last year. They wrote that “in the current era we cannot say with any amount of certainty that the central problem of voting is race.” Like Issacharoff, Charles and Fuentes-Rohwer are progressive legal scholars who see the V.R.A. as a justly celebrated device that contributed mightily to the circumstances of its own declining pertinence. They view both the Shelby County decision and the Court that delivered it with skepticism, but they do not see the end of preclearance as the disaster that Berman bemoans. They write instead that the post–Shelby County “story of doom and gloom relies upon a view of the Supreme Court as a singularly consequential actor. . . . From our perspective, this story is too court-centric.”

Of course, it is possible to recognize the partisanship behind restrictive legislation while maintaining that racism is still the dominant motivation. And some activists believe, as does Berman, that it is preferable to emphasize the racial consequences of the new restrictions whatever the motivations behind them. But others — largely overlooked by Berman — contend that it is preferable to emphasize the partisanship that motivates the restrictions and to persuade the public and the courts that manipulating the rules of electoral competition for partisan reasons should be deemed intolerable. A book like Berman’s ought to give readers a fuller sense of these disagreements. The modern struggle for voting rights is too important to accept without complaint a book-length examination that is this superficial.

The V.R.A. is unlikely to be rehabilitated by Congress anytime soon; too many Republicans see no payoff in reworking it. Though they were willing to vote for reauthorization when they believed it to be inevitable, they are unwilling to meet the Supreme Court’s demand that Congress update the preclearance formula. There are all manner of sentiments behind this unwillingness, including several that are disturbing: selfishness, resentment, indifference, and racism. Fortunately, the V.R.A. has completed the main task it was designed to address. Societal changes have made inconceivable the recrudescence of wholesale, unambiguous racial disfranchisement. It is possible, moreover, that the Supreme Court has done an inadvertent favor to liberals. By sidelining a once-potent progressive device of declining efficacy, it might spur fresh activism and prompt new thinking about ways to advance democratic aspirations in an America in which race continues to matter, albeit in unprecedented ways.

is the Michael R. Klein Professor at Harvard Law School.

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