In 2012 North Carolina elected a Republican governor and a Republican-controlled legislature for the first time in more than a century. The Republicans quickly went to work to ensure that they would not soon lose their newly won grip on state power. One way to do so would be to suppress the votes of African-Americans. In North Carolina, as elsewhere, African-Americans overwhelmingly vote for Democratic candidates. In fact, as an expert testifying for North Carolina conceded in a case challenging the new voting rules the state eventually adopted, “in North Carolina, African-American race is a better predictor for voting Democratic than party registration.”1
But the Republicans faced one significant obstacle. Because of their history of racially discriminatory voting practices, forty North Carolina counties were required, by Section 5 of the federal Voting Rights Act, to submit any changes in the state’s voting laws to the US Justice Department for approval, or “preclearance.” Section 5, which applied to regions that had a history of voting discrimination, barred changes that would have a disparate impact on African-American voters. By far the most effective provision of the Voting Rights Act, Section 5 had, since its enactment in 1965, resulted in the blocking of over three thousand such voting rule changes nationwide. In North Carolina alone, federal courts and the Justice Department blocked more than one hundred election law changes from 1980 to 2013 because they discriminated on the basis of race.
In 2013 the North Carolina legislature nonetheless began considering a bill to require citizens to show photo identification when voting, a requirement that has a demonstrably disproportionate impact on African-Americans, who are less likely to have such identification. No doubt because of the need to satisfy preclearance review, the initial version of the bill was relatively modest, and even achieved the support of five state House Democrats. It was still under consideration when, on June 25, 2013, the Supreme Court decided Shelby County v. Holder, which struck down the Voting Rights Act’s “preclearance” process. Writing for the Court’s 5–4 majority, Chief Justice John Roberts said, “Things have changed in the South.”
The day after, the chairman of the North Carolina Senate Rules Committee announced that the legislature “would now move ahead” on its voter ID bill. One month later the legislature passed a greatly expanded law that added a host of new voting restrictions. The new law curtailed early voting and eliminated same-day voting registration, provisional voting for those who mistakenly voted in the wrong precinct, and preregistration of sixteen- and seventeen-year-olds when they obtained their driver’s licenses. Two features united all of the measures the new law now limited or ended: they had been originally designed to increase voter participation, and they were disproportionately used by African-American voters. The North Carolina legislature knew that, because it had requested and received data on the use of each of these measures by race before enacting the law. Republican legislative staff asked the state election board, for example, for “a breakdown of the 2008 voter turnout, by race (white and black) and type of vote (early and Election Day),” and for “a breakdown, by race, of those registered voters in your database that do not have a driver’s license number.”
The new law also included a much more stringent voter ID provision. The pre–Shelby County bill allowed use of any government ID; the final version ruled out the use of IDs that African-Americans were more likely to have, such as “public assistance IDs,” and approved only those forms of identification that white voters were more likely to have, such as driver’s licenses, passports, and concealed-gun permits. The requirement was said to fight voter fraud, but its defenders were unable to point to any evidence of such in-person voter fraud. As the noted conservative Judge Richard Posner has written, voter ID laws are “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”
Like the many other voter ID laws that Republican legislatures have enacted in recent years, the North Carolina requirement applied only to in-person voting, but not to absentee voting, where there actually has been evidence of fraud. Not coincidentally, absentee voters are disproportionately white.
The Obama Justice Department and several civil rights organizations challenged North Carolina’s new law as racially discriminatory. In April 2016, a federal district court rejected the challenge, finding that the legislature was merely seeking partisan advantage, not acting out of racial animus. The district court viewed the legislation as “politics as usual,” in which race was considered only as a proxy for partisan concerns. But in July, the US Court of Appeals for the 4th Circuit unanimously reversed the district court’s decision. As Judge Diana Motz wrote for the court:
Intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose…even absent any evidence of race-based hatred and despite the obvious political dynamics.
“Politics as usual,” Judge Motz continued, “cannot be accepted where politics as usual translates into race-based discrimination.”
North Carolina asked the Supreme Court for an emergency stay, which the Court denied. But the decision leaves the number of polling places and voting hours up to the local election boards. Twenty-three of those boards have since cut early voting hours, and nine have cut Sunday voting—services used disproportionately by blacks.
Other courts have also recently invalidated similar laws in other states. In July, the US Court of Appeals for the 5th Circuit ruled that Texas’s voter ID law had a racially disproportionate effect on black and Hispanic voters and therefore violated the Voting Rights Act, and two separate federal judges struck down parts of a Wisconsin law that restricted early voting and required photo identification at the time of voting. Still, such restrictive rules, virtually all adopted by Republican state legislatures, remain in effect in many parts of the country. The Supreme Court recently declined to overturn a ruling by the US Court of Appeals for the Sixth Circuit in favor of the Ohio state legislature’s decision to eliminate the “Golden Week,” an early voting and registration period used predominantly by black voters.
The United States has long been a democracy divided by race. We are committed in theory to the principle of “one person, one vote,” but in practice our nation has exploited and tolerated deep, structural racial oppression, from slavery to Jim Crow to today’s racial profiling, residential and educational segregation, and red-lining. Our history has been marked both by an expanding franchise—including constitutional amendments that extended the vote to racial minorities, women, and young people—and by persistent efforts by government officials to abuse their temporary predominance to keep themselves in power. African-Americans and other minorities have borne the brunt of such vote restriction measures.
In Shelby County, the Supreme Court declared in effect that this was all ancient history, and that therefore states and counties with a history of discrimination could no longer be required to obtain federal approval for voting changes that might affect minority voters. The lower court decisions this summer, bearing on only a small number of the many restrictive voting rules that Republican state legislatures have adopted in recent years, make it clear that the Supreme Court was premature in declaring racial discrimination in voting a historical relic. From 2011 to 2015, after Republicans gained control of many state governments, legislators introduced 395 bills in forty-nine states designed to make it more difficult to vote, and half the states, nearly all under Republican control, adopted such restrictions.
The Brennan Center for Justice identifies fifteen states that have new voting restrictions in place for the first time for the 2016 presidential election, and five more that have had restrictions in place since the 2012 election. These include several states considered “battlegrounds” in the upcoming presidential election, or that have competitive elections for Senate seats, including Florida, Ohio, Wisconsin, Iowa, New Hampshire, Virginia, Illinois, and Arizona. In each of these states as well as many others, legislatures have imposed rules, like those in North Carolina, that limit opportunities to register and vote, and that demand forms of identification at the polls that many poor and minority citizens do not have—all in the name of fighting nonexistent “voter fraud.” Meanwhile Donald Trump, also invoking the specter of fraud, has sought to impose voting restrictions of his own, urging his followers to watch polls in November, a practice designed to deter Democrats from voting.
The 2016 presidential election looks increasingly like it will be close in the end, and many other races this fall are certain to be. These restrictive laws and practices, all invoked by Republicans, have the purpose and effect of reducing turnout disproportionately among racial minorities and the young, populations that are more likely to vote for Democrats. The Republican Party is evidently worried that the growing numbers of nonwhite citizens in the US are unlikely to vote for their candidates, a concern deepened by the campaign of Donald Trump. Instead of modifying their policies to address the interests of new voters, however, the Republicans have sought to suppress those votes. The strategy, profoundly antidemocratic in the small “d” sense, can swing elections in the short term. But in the long term, it will not only damage American democracy but will be self-defeating for the GOP.
Two recent books shed light on the continuing relevance of both race and partisan politics in the shaping of our democracy. Ari Berman’s Give Us the Ballot is a captivating and definitive history of the Voting Rights Act, from its origins, inspired by the march across the Edmund Pettus Bridge in Selma, Alabama, to the present day, in which Republican-controlled jurisdictions, freed of federal oversight by the Shelby County decision, are meticulously adopting restrictive rules akin to those North Carolina put in place.
Berman’s chronicle of the most important and effective civil rights law in American history makes clear that the right to vote, far from self-enforcing, has always been vulnerable to those who believe they can gain partisan advantage by changing the rules. As Berman puts it, “What should be the most settled right in American democracy—the right to vote—remains the most contested.”
Berman’s account begins and ends, appropriately, with John Lewis. It opens with Lewis, a young activist, being beaten as he tried to walk across the Edmund Pettus Bridge in 1965 in defense of the right to vote. And it closes with Lewis’s participation in the fiftieth anniversary of the March on Washington, the only surviving speaker from the original demonstration. Lewis, who has served in the House of Representatives since 1987 and been called “the conscience of the US Congress,” owes his seat to the Voting Rights Act of 1965, which partly resulted from his own actions. President Lyndon Baines Johnson was skeptical about pressing for voting rights legislation until the protests at Selma forced his hand.
As initially enacted, the Voting Rights Act suspended literacy tests, authorized the Justice Department to challenge poll taxes, sent federal observers and registrars to monitor elections and register voters, and instituted the preclearance requirement. Subsequent amendments to the law outlawed literacy tests altogether, gave eighteen-year-olds the vote, extended protections to language minorities, such as Hispanics, Asian-Americans, and Native Americans, and prohibited voting rules that have the effect of diluting minority votes. The act has been extraordinarily successful. In the first decade after its enactment the percentage of southern African-Americans registered to vote increased from 31 percent to 73 percent, the number of black elected officials nationwide grew from under 500 to 10,500, and the number of black members of Congress increased from five to forty-four.
But these gains were hard-fought. After the Voting Rights Act made it possible for increasing numbers of black voters to register, many southern jurisdictions turned to other measures to undermine minority voting power. They gerrymandered voting districts to divide black voters in order to deny them a majority and created “at-large” voting schemes that reduced the likelihood that minority voters in a particular town or county could elect the candidate of their choice. In 1969, however, the Supreme Court interpreted the act to prohibit not only outright obstructions of the franchise but also measures that had the effect of diluting the voting power of minority groups.
The difference the Voting Rights Act has made is reflected in electoral results. When Jimmy Carter was elected president in 1976 he lost the white vote 48 percent to 51 percent—but he won 92 percent of the nation’s 6.6 million black votes. Black votes made the difference, not just in southern states but in Missouri, Pennsylvania, and Ohio. In 2008 Obama lost the white vote by twelve points to John McCain but won the election by getting 75 percent of the black, Hispanic, and Asian vote. In 2012, for the first time in presidential history, black turnout rates nationwide exceeded those for whites.
Republicans have responded, wherever they hold majority control, by restricting access to the ballot in ways that disproportionately disenfranchise minority voters. As Judge Motz noted in the North Carolina case, the fact that many of today’s restrictions are driven by partisan motives rather than pure racial animus does not diminish the fact that they are designed to restrict the number of minority voters because of their race. Berman’s history makes it clear that, given these continuing efforts at voter suppression, the Voting Rights Act remains as necessary today as ever.
Zachary Roth’s The Great Suppression argues that voter suppression and racial and partisan gerrymandering are just part of a more sweeping “conservative assault on democracy.”2 In his view, conservative elites, suspicious of the uneducated masses, have sought to limit democracy at every turn, not only by restricting voting rights but by other measures as well. These include: (1) freeing rich people and corporations to skew elections with large financial contributions, (2) preempting progressive municipal lawmaking through state-level legislation, (3) urging unelected judges to invalidate laws enacted by the people’s representatives that interfere with property or liberty, and (4) advocating constitutional amendments that would impose still-further limits on democracy. There is a significant strain among today’s conservatives, Roth argues, that seeks not merely to deny voting power to racial minorities but is deeply suspicious of democracy itself. Conservatives are driven, he contends, by “a core ideology that believes it’s not just acceptable for corporations and the superwealthy to have an outsize say in our elections—it’s actually better that way.”
Roth is right to link the Republicans’ hostility to campaign finance regulation to the voting restrictions I have discussed here. Republicans have historically enjoyed and continue to enjoy greater support than Democrats from the ultrarich and from many business executives, while Democrats have relied on support from the middle and working classes. In the 2014 elections the wealthiest 0.1 percent accounted for almost 30 percent of all disclosed political donations, or $1.18 billion. “By June 2015,” Roth writes, “just 158 families had already contributed a total of $176 million to support 2016 presidential candidates—all but twenty backing Republicans.” Republicans hope to offset the Democrats’ advantage in numbers by encouraging unlimited spending. Under “one person, one vote,” the Republicans are increasingly bound to lose. Under “one dollar, one vote,” they have a fighting chance.
Roth’s other examples of what he calls a “conservative assault on democracy,” however, are less persuasive. He complains that conservatives have pursued a policy of “preemption,” by which they enact legislation at the state level that blocks city- or county-based initiatives on the same subject. The tactic has been used by the tobacco industry, the National Rifle Association, and corporations to forestall or override progressive local initiatives.
But preemption is not antidemocratic. The fact that state-level democracy supersedes local democracy is no more antidemocratic than is the fact that federal laws, such as the Voting Rights Act, override state and local laws. Preemption is a necessary doctrine in a country that operates, democratically, at three different levels—local, state, and federal. Liberals and conservatives alike opportunistically seek out the forums that are most sympathetic to their causes. But at every level they succeed only if they can obtain the support of a majority.
Roth also condemns the expanded use by Republican senators of the filibuster to kill bills that have majority support, such as the proposal to expand background checks for firearms purchases after the Sandy Hook Elementary School mass shooting. Republicans have indeed used the filibuster much more aggressively than the Democrats ever did. But the filibuster can be modified or eliminated by simple majority of the Senate, and thus is better described as a result of democracy than an impediment to it.
Roth also sees an “assault on democracy” in lawsuits filed by conservatives challenging the constitutionality of laws they do not like, such as the Affordable Care Act. But again, there is nothing nefarious about this. We are a constitutional democracy, in which certain values and procedures have been intentionally placed beyond the power of majorities. They include limits on Congress’s power to legislate, as well as protections of the rights of dissenters to speak and associate, of minorities to equal protection, of individuals to preserve their privacy and property from unjustified intrusions, and of criminal defendants to a fair trial. Liberals have invoked the Constitution to strike down racial segregation, extend equal protection to women, and require states to recognize same-sex marriage. Conservatives, as much as liberals, have a legitimate right to appeal to the Constitution to protect the interests they favor.
Roth is right to criticize Republican efforts to restrict and dilute voting rights, and to free up the rich to skew elections. But in condemning preemption, the filibuster, and constitutional litigation, he overplays his hand. It’s bad enough that the Republicans have sought to entrench their power by rigging electoral rules. An indictment that overreaches undermines its own force.
President Johnson called the Voting Rights Act “probably the nation’s finest hour in terms of civil rights,” but he also predicted, in a remark to his aide Bill Moyers, that “I think we just delivered the South to the Republican Party for a long time to come.” He was right on both counts. The bill’s very effectiveness drove many southern white voters, traditionally Democrats, to the GOP. In 1990, for example, Georgia’s congressional representatives consisted of seven white Democrats, one black Democrat (John Lewis), and one Republican, Newt Gingrich. But after redistricting prompted by the Voting Rights Act created two new districts in which African-Americans were a majority, Georgia in 1994 elected three black representatives, all Democrats, and eight white Republicans. When similar results in many southern states caused Republicans to gain control of the House of Representatives, Gingrich became Speaker. As the voting rights scholar Lani Guinier wrote, “Proponents of black voting rights have won the ballot, but may be losing the war.” The Voting Rights Act delivered the South to the Republican Party, and it’s hard to see that as a victory for African-Americans.
But by allying Democrats with the effort to expand the franchise to minority voters and prompting Republicans to do just the opposite, the act may have delivered the country to the Democratic Party for an even longer time to come. The United States is becoming increasingly diverse. Of five million new voters in 2008, two million were black, two million Hispanic, and 600,000 Asian. As the percentage of white as compared to nonwhite citizens falls, the party that has fought hardest for minority rights is likely to see longstanding gains. In the 2008 election, about two thirds of newly registered citizens were Democrats, and Obama won almost 70 percent of the country’s 15 million first-time voters. The Republicans understand these demographics, and that’s exactly why they have worked so tirelessly to suppress the votes of minorities.
But that strategy, even if it succeeds in some regions in the short term, is likely to be disastrous for the GOP in the long term. It alienates the voters Republicans need to attract to gain majority support, and it contravenes perhaps the most fundamental precept in a democracy—the right to cast one’s vote. President Johnson and the Democrats not only did the right thing in backing voting rights, but very likely benefited their party in the long term by doing so.
The Capture of the South January 19, 2017