How America undermined the Voting Rights Act

It’s easy to turn history into a neat drama. Civil Rights foot soldiers like Dr. Martin Luther King, Jr., Rev. C.T. Vivian, Amelia Boynton and Rep. John Lewis risked everything for equal rights, including the right to vote. Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. End of story, right? Close the curtain. Raise the lights. Next topic.

But from the very beginning, people have worked to undermine the voting protections enshrined in the VRA. What does that look like in 2020? And are we prepared to hold an election in the middle of a pandemic?

This season on the Reckon Interview, R.L. Nave and I are looking at the 2020 landscape in the South. What do the social movements look like on the ground? How have the politics of the region changed? Who are the emerging leaders? And who gets to vote?

This week we spoke with Prof. Carol Anderson, who teaches at Emory University and literally wrote the book on voter suppression: One Person, No Vote. Below you’ll find a few excerpts from our conversation with her. We also spoke with ProPublica’s Jessica Huseman about how states are preparing for an election environment unlike any we’ve ever seen. We’ll publish excerpts from that conversation later this week.

But you can listen to the whole episode here.

And go ahead and subscribe on Apple Podcasts, Spotify, Acast or wherever else you get your podcasts to stay informed about the South this election season.

What happened after the Voting Rights Act?

So when the Voting Rights Act passed in 1965, it immediately received a challenge from South Carolina, and they went all the way up to the Supreme Court, where South Carolina was arguing that the Voting Rights Act undermined and undercut states’ rights, and that they should be able to hold their elections how they’re used to holding their elections, with literacy tests, although they’re refused to fund education for African Americans, and that they didn’t like federal electors there. The US Supreme Court came back in that case and said “no, the Voting Rights Act is constitutional.”

Then there was another challenge from Mississippi in Virginia where they were just doing minor tweaks. And they thought, “hey, all we’re doing are minor tweaks. So clearly minor tweaks don’t have to go under the Voting Rights Act where we have to have every change that we make to our voting laws, okayed first by the U.S. Department of Justice or by the Federal Court in DC.” Because that’s the preclearance provision.

And states didn’t get under the preclearance provision in the Voting Rights Act, simply because oh, I don’t know, they were states. They got under the preclearance provision because they had messed up. They had messed up.

There were these benchmarks that states had to hit in order to come under the Voting Rights Act preclearance provision. They had to have fewer than 50% of their age eligible adults registered to vote and they had to use one of the preclearance disenfranchising devices that came out of the Mississippi Plan of 1890. So they had to use a poll tax or they had to use a literacy test. If a state combined with both of those, they came under preclearance.

So that’s why Mississippi and Virginia argued, “hey, but our minor tweaks they don’t count.” And the Supreme Court said, “Son, let me tell you something, son.” You know, this is for the blatant as well as the subtle because what Mississippi wanted to do was to move elected officials over to being appointed officials, things like the superintendent of schools.

Then you had reauthorization battles, but the Voting Rights Act worked. Let me just give you one example, Mississippi in the early 1960s, prior to the Voting Rights Act, had about 5% of its African Americans registered to vote. Now you and I both know Mississippi got a lot of black folk, and when you only have 5% registered to vote, and in some counties, it was zero percent. You know, some counties like Amity County, you could count on one hand, the number of African Americans registered to vote.

What does the Voting Rights Act of 1965 do?

What it really does is it protects the right to vote of American citizens, it stops discrimination by state entities from coming up with different ways to stop African Americans and Latinos and Asian Americans and Native Americans from voting. It has language in there like in its reauthorization in 1982, it had language in there about jurisdictions that have significant number of language minorities, that the entity had to then create ballots that had that language on there. So it was a way of making sure that American democracy was American democracy, vibrant, full and that all American citizens had the right to vote.

And that’s what made it so dangerous for those who really, really disdain and are in contempt of African Americans voting, Hispanics voting, Asian Americans voting, Native Americans voting, doggone near everybody voting.

How did Shelby County v. Holder affect the VRA?

Shelby County v. Holder, I believe will go down in history as a decision that was as destructive as Plessy v. Ferguson. Because what you have is a conscious deliberate defiance of federal law.

So Shelby County, like all of Alabama, was under the preclearance provision, and so any changes they made – so if they redrew a district boundary – they had to get that okayed first by the U.S. Department of Justice. Well, the Shelby County Commissioners didn’t want to be bothered with that so they kept annexing land and kept annexing land particularly around Calera city.

And as they kept annexing, they kept redrawing the district boundaries that then made the one lone black councilman, they redrew his boundaries in a way that moved him out of his district and into a new district. And that district is where over 70% of his constituents voted against Barack Obama. So when that election happened, he was voted out of office.

So there was a lawsuit because Shelby County had violated the Voting Rights Act. This was clear. I mean, this was obvious. This was blatant. It goes up to the U.S. Supreme Court and in a decision that is stunning in its incredible ability to not look at evidence, in a 5-4 decision, with John Roberts penning the decision. He argued several things, that the Voting Rights Act was really no longer necessary because the racism that had been in America in the 1960s that called for the Voting Rights Act was no longer there.

I mean, he’s like, “Look, we have black elected officials, we have Hispanic elected officials. So that kind of virium and racism just isn’t there. So, you know, I’m not sure why we need a Voting Rights Act.”

He also argued that it unfairly picked on the South. Well, the South… my mother used to say and I’m going to do it this way, when I was little, and I just keep hitting on my brother, hitting on my big brother, hitting him, hitting him, and then finally he would just whack me, right? And I’d go running to my mother going, “mom, he hit me. He’s picking on me.” And she’d say, what are you doing to make yourself so pickable? You can tell my mother’s Southern, right?

And so it wasn’t like we were looking at the innocents here. We are looking at states, not only in the 1930s, 40s, 50s and 60s that systematically blocked African Americans from the voting booths, but what we also saw in the VRA Reauthorization Act of 2006, the U.S. Department of Justice laid before Congress over 700 changes that it had stopped between 1982 and then. Over 700 because they were racially discriminatory. So for the U.S. Supreme Court to look at over 700 changes blocked since 1982 and to say there’s no need for this law, is to ignore the evidence.

So the U.S. Supreme Court then gutted what’s called Section IV of the Voting Rights Act. And Section IV is where the conditions for being put under preclearance are laid out. Now, Clarence Thomas, bless his heart, in his separate opinion, not only wanted Section IV gutted, he wanted Section V gutted. Section V [is] what the states have to do that are under preclearance. He thought all of that had to go.

So, with the Voting Rights Act no longer operable, really the preclearance provision was the thing that stopped the mess from happening. What it did then was you had to now rely upon Section II of the Voting Rights Act that says, “Thou shall not have racial discrimination in your voting,” right? In your voting laws. And so, organizations like the Legal Defense Fund and like the League of Women Voters and the ACLU have had to use Section II. But that means that the racially discriminatory voting law is now operable.

Preclearance [would have] stopped it before there could be an election, before it could take hold. Before you could have a disfranchised electorate that had no voice. You would get taxation without representation. And you would get people put in power, who were put in power based on a disfranchised electorate. So, their whole thing was okay, how do I keep this going by creating more rules to disfranchise, because that’s how they got access to power.

For more about how the Voting Rights Act has been gutted and about the efforts to renew the law, listen to the full episode here. Tomorrow, Jessica Huseman offers her recommendations for making sure your vote is counted in 2020.

The Reckon Report.
Sign up to receive the Reckon Report newsletter in your inbox every Tuesday.