Reviews — From the August 2015 issue

Old Poison, New Battles

The ongoing struggle for voting rights

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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.

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