The Constitution guarantees all American citizens the right to cast a ballot in any election they’re eligible to vote in. The evolution of the Constitution — through its amendments — shows how America’s thinking about allowing and prohibiting voting has changed. Where the original reserved voting for the white, landed gentlemen who wrote the Constitution, over time, that idea became outmoded. This list, from USA.gov summarizes the four key amendments:
- The 15th Amendment gave African American men the right to vote in 1870.
- The 19th Amendment, ratified in 1920, gave American women the right to vote.
- The 24th Amendment, ratified in 1964, eliminated poll taxes. Some states had used poll taxes to keep African Americans from voting in federal elections.
- The 26th Amendment, ratified in 1971, lowered the voting age for all elections to 18.
The Constitution, however, is terse in instructing states how to proceed to honor these new elements of Constitutional law.
Today’s post looks at the 15th and its essential companion, the Voting Rights Act of 1965. The latter gave teeth to the proposition that all African American people should enjoy the primary right of citizenship. It acknowledged the barriers those in power had thrown up to block their way to the polls, and tried to dismantle them.
Some background from centuries past
The 15th Amendment had no teeth and precious little instruction. Unsurprisingly, states where slavery had been the rule and racism still endemic found endlessly creative ways to dodge its intent. The Library of Congress elaborates on the problem. “Through the use of poll taxes, literacy tests and other means, Southern states were able to effectively disenfranchise African Americans. It would take the passage of the Voting Rights Act of 1965 before the majority of African Americans in the South were registered to vote.”
According to some University of Michigan research, the “other means” could be relatively benign. Some places devised arbitrary registration practices, like holding limited registration days only during planting season. Others asked prospective voters to explain some arcane paragraph of their state’s constitution. Some places switched around the boxes in which voters placed individual ballot slips. Doing so could trip up those of limited literacy who had memorized the order of the ballot. And some were just disgraceful: blocking a man from voting unless he could prove his grandfather had voted… an impossibility in the years following the Civil War.
Of course, “other means” also included outright fraud (the proverbial stuffed ballot box) and violence. The Ku Klux Klan were very helpful ‘dissuading’ Black voters from coming anywhere near polling places on Election Day.
Discrimination done “right”
Mississippi showed its neighbors how to do discrimination right when it rewrote its state constitution in 1890. The new constitution would replace the (fairer) one in force since Reconstruction. The Constitutional Rights Foundation sums it up neatly:
The white leaders of the convention were clear about their intentions. “We came here to exclude the Negro,” declared the convention president. Because of the 15th Amendment, they could not ban blacks from voting. Instead, they wrote into the state constitution a number of voter restrictions making it difficult for most blacks to register to vote.
It goes on: “As a result of intimidation, violence, and racial discrimination in state voting laws, a mere 3 percent of voting-age black men and women in the South were registered to vote in 1940. In Mississippi, under 1 percent were registered. Most blacks who did vote lived in the larger cities of the South.”
The intent of the Voting Rights Act
The Department of Justice (DoJ) summarizes the need for action. Congress determined that the existing federal anti-discrimination laws were insufficient to overcome the resistance by state officials when it came to enforcing the 15th Amendment. Hearings showed that DoJ’s efforts to eliminate discriminatory election practices by litigation on a case-by-case basis had been unsuccessful in opening up the voter registration process. As soon as it proved one discriminatory practice or procedure unconstitutional and stopped it, a new one would be substituted in its place. Litigation would have to commence anew.
The Voting Rights Act confirmed the nation’s intent to ensure African American citizens had full, unfettered access to the ballot box. The Act laid out the legal means to challenge voting restrictions. It banned the use of literacy tests. In addition, it authorized the U.S. attorney general to investigate the use of poll taxes in state and local elections. (In 1964, the 24th Amendment made poll taxes illegal in federal elections; the Supreme Court banned poll taxes in state elections in 1966.) Perhaps most important, the Act allowed federal oversight of voter registration in places where less than half the non-white population had registered to vote.
The Act passed in the Senate by a 77-19 vote on May 26, 1965. Only senators representing Southern states voted against it. After debating for a month, the House passed the bill by a vote of 333-85 on July 9. Again, the ‘nay’ votes were overwhelmingly from Southern congressmen.
Mississippi, along with Alabama, Alaska, Georgia, Louisiana, South Carolina and Virginia had excelled in the techniques of state-level discriminatory voting practices. Jurisdictions in four other states — Arizona, Hawaii, Idaho and North Carolina — mimicked their efforts. Such expertise earned all of them sharp scrutiny by DoJ lawyers using the formula spelled out in Article 4.
What happened next
Within a few years, voter turnout among African American voters jumped. In Mississippi, for example, turnout rose from 6 percent in 1964 to 59 percent in 1969. Later emendations to the Act protected voting rights for non-English speaking American citizens.
The Department of Justice modestly brags:
Soon after passage of the Voting Rights Act, federal examiners were conducting voter registration, and black voter registration began a sharp increase. The cumulative effect of the Supreme Court’s decisions, Congress’ enactment of voting rights legislation, and the ongoing efforts of concerned private citizens and the Department of Justice, has been to restore the right to vote guaranteed by the 14th and 15th Amendments. The Voting Rights Act itself has been called the single most effective piece of civil rights legislation ever passed by Congress.
Enforcement is another matter
However, state and local enforcement of the law was weak and the Act often ignored outright. This was particularly true in the South and other areas where the proportion of Black people in the population was high and their vote threatened the political status quo. Fighting the ever-inventive and devious practices of voter suppression requires constant vigilance. Further, attempting to challenge local or state restrictions in court is both costly and difficult.
Remember the one driving reason for the Voting Rights Act in the first place. The DoJ wanted to eliminate the whack-a-mole nature of contesting illegal voter suppression in local and state courts.
But not everyone believes such strong safeguards of federal law are still essential. In 2013, the five conservative justices then sitting on the Supreme Court joined together to de-fang Article 5. They did so, quite slyly, by invalidating Article 4 in the decision Shelby County v. Holder. Specifically, Section 4(b): the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of discrimination in voting. The justices ruled that Congress must pass a new formula to determine which states and localities would be subject to preclearance. With no formula in place, the ruling virtually eliminated DoJ’s ability to stop wrongful practices before they took effect.
No teeth, no justice. No justice, no peace…
The Brennan Center for Justice summarized the threats to minority voting right caused by striking down Article 5. It said previously regulated states could:
- Re-enact discriminatory voting changes that have been formally blocked by Section 5. The DOJ alone blocked 31 proposals since Congress reauthorized the Voting Rights Act in 2006.
- Adopt discriminatory voting changes that previously were deterred by Section 5. For example, between 1999 and 2005, states withdrew 153 changes when DOJ questioned them.
- Implement discriminatory voting changes that have lain dormant while awaiting Section 5 review
- Adopt new restrictive changes
- Put into action discriminatory voting changes that had been blocked from going into effect, but technically remained on the books
As many fans of democracy predicted, the ruling ushered in a wave of efforts in states previously covered under Section 5 to restrict voting rights.
In an upcoming post, we’ll look at some consequences of pulling the Voting Rights Act’s teeth. They’re not very pretty. And some make America one of the hardest countries to vote in.
Five years after the [Shelby] ruling, nearly 1,000 polling places had been closed in the U.S. And many of the closed polling places are in predominantly African-American counties.