Dan Siegel Original Race Voting

Voting Rights Remain the Critical Barrier to Racial Equality

Voting rights advocates are now forced to focus their efforts on Congress and state legislatures to pass new laws to protect their rights
Photo by Tom Barrett on Unsplash

By Dan Siegel / Original to ScheerPost

Over 150 years after the end of the Civil War, restricting voting rights continues to be the right’s most hard-fought strategy for maintaining white supremacy in the United States, and the Supreme Court remains the most reliable partner in those efforts. Just last week the Court’s majority abandoned decades of precedent to block an Alabama redistricting plan that would have created two majority Black congressional districts in a state where African Americans make up 27 percent of the population. African Americans are now very unlikely to elect more than one representative to Alabama’s seven-member congressional delegation this year. One seat in a closely divided Congress will make a difference in a year in which the New York Times says that only 43 seats in the 435-member House will be competitive. 

Although the five justices who made the decision described it as a temporary measure to prevent chaos just a few months before the election, that rationale was disputed by no less an authority than Chief Justice John Roberts, who as recently as 2013 led the effort to gut section 5 of the 1965 Voting Rights Act. 

Roberts wrote last week, “I respectfully dissent from the stays granted in these cases because, in my view, the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” 

As noteworthy as Roberts’ disagreement with his colleagues on the right is the fact that the three-judge district court that upheld Alabama’s plan included two judges appointed by Donald Trump.

The Supreme Court’s determined effort to suppress the Black vote continues a tradition that extends back at least to the infamous Dred Scott decision in 1857. In what is widely regarded as the worst decision ever made by the Court, Chief Justice Roger Taney, the Maryland slaver appointed by President Andrew Jackson, ruled that an enslaved person brought into a state where slavery was forbidden did not become free, even after living there for five years. That was the precise issue before the Court, but Taney’s decision went further.

The Court ruled that both enslaved and freed Africans “were at that time [when the U.S. was founded] considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” Taney ruled that neither freed nor enslaved Africans were or could be citizens, could not be allowed to vote, and had no right of access to the courts. The Court’s conclusion was not only that Dred Scott could not win his case, but also that it had been a legal error to even allow him to bring his lawsuit.

Taney’s ruling asserted that the Congress was powerless to prevent the expansion of slavery into new territories and states because the Constitution did not allow the federal government to deprive an individual of his property, making no distinction between slaves and other forms of property. The barriers that the Dred Scott decision erected against the abolitionist cause were only overcome by the Civil War, Lincoln’s Emancipation Proclamation in 1863, and the adoption of the Thirteenth Amendment to forbid slavery, the Fourteenth Amendment to provide equal protection under the law for all, and the Fifteen Amendment to guarantee voting rights for all after the war.

The Fifteenth Amendment, ratified in 1870, states, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” It gives Congress the authority to enforce the Amendment by appropriate legislation. Enforcement of the amendment was sporadic. The Union Army protected Black voting and political rights against violent white opposition under President Lincoln, but his successor, Andrew Johnson, opposed Reconstruction and supported the white supremacists who undermined it. President Ulysses S. Grant reversed course, again using the military against the KKK and other violent militias to enforce federal authority in the South, but by the end of his administration in 1876, the nation had tired of Reconstruction, and Jim Crow laws dominated political life in the former Confederacy.

Particularly after the successful 1898 coup by leaders of the Democratic Party and violent white supremacists to overthrow Black political and economic power in Wilmington, North Carolina, white politicians in the South devised ingenious tactics to prevent African Americans from voting and participating in political life. North Carolina, Georgia, and then the rest of the southern states imposed poll taxes, literacy and morality tests, vouchers from registered voters, grandfather clauses, property requirements, whites only primaries, and other measures which, combined with terror, virtually eliminated Black participation in electoral politics until the civil rights movement of the 1960s.

In the early 1960s, only 19.4 percent of African Americans in Alabama, 31.8 percent in Louisiana, and 6.4 percent in Mississippi, were registered to vote. Pressured by the movement, Congress passed the Voting Rights Act (VRA) in 1965 to create an explicitly expansive mechanism to enforce the Fifteenth Amendment. 

The VRA had two primary provisions. First, under sections 4 and 5, designated states and counties with a history of using tests or other devices as prerequisites for voting and had less than 50 percent registration or turnout in the 1964 Presidential election were required to obtain “preclearance” from federal authorities before adopting changes in their election laws to ensure that those changes did negatively impact voter turnout. By 2013, following amendments to the VRA that included extending its protection to language minorities, sections 4 and 5 applied in nine states, seven in the South plus Alaska and Arizona, and individual counties in many other states, including New York and California.

In Shelby County, Alabama v. Holder, the Supreme Court ruled in 2013 that section 4’s coverage definition was unconstitutional, thereby eliminating section 5’s preclearance requirement. Echoing, but not quoting Roger Taney, Chief Justice Roberts wrote that the law created an onerous burden on “sovereign state power,” which could no longer be justified given the VRA’s success in eliminating many barriers to Black registration and voting in southern states.

But the VRA was successful precisely because the preclearance requirement led to the rejection of well over 1000 measures that would have negatively impacted minority voting rights in the covered states and counties. The Shelby decision unlocked the suppressed creativity of America’s white supremacists, with Republican controlled legislatures in at least 23 states adopting measures to restrict voting rights – racial gerrymandering of electoral districts, restrictions on voting by mail, early voting, and Sunday voting, voter identification laws, and more. 

Elimination of preclearance paved the way for Texas to redraw and further gerrymander its legislative districts, which the Supreme Court largely upheld in 2018 in Abbott v. Perez. The Court concluded that the “good faith of the state legislature must be presumed” and that opponents had failed to prove that the districts were created with discriminatory intent. Voting rights advocates are now limited to enforcement efforts under section 2 of the VRA, which forbids all states from adopting any “standard, practice, or procedure … imposed or applied … to deny or abridge the right of any citizen of the United States to vote on account of race or color.” But as last week’s decision in Merrill v. Milligan shows, the Supreme Court is creating new barriers to enforcing rights under section 2 as well, imposing its cramped interpretation of a law designed to expand the vote for African Americans,

Worse, last year the Supreme Court rejected challenges to new Arizona laws that forbid counting ballots cast by voters outside their home precincts and outlaws the practice of collecting absentee ballots and delivering them to the polls, a longstanding tradition in states where many people live in isolated areas with few polling places. In Brnovich v. Democratic National Committee, the Court voted 5-4 to uphold Arizona’s restrictive laws, concluding that they had just a minimal effect on voter turnout and suggesting that it would in the future require challengers to voting restrictions to prove that the laws were adopted with the intent to restrict voting by the groups protected under the VRA. The law contains no such restriction and had been modified by Congress to clarify that challenges to voting restrictions under section 2 could succeed by simply showing the impact of those laws on minority voting.

The Supreme Court as currently constituted has demonstrated its determined opposition to use of the VRA to protect the rights of African Americans, other people of color, and language minorities. Voting rights advocates are now forced to focus their efforts on Congress and state legislatures to pass new laws to protect their rights. Their efforts may determine which party controls Congress by the end of this year.

Dan Siegel
Dan Siegel

Dan Siegel is a civil rights attorney in Oakland.

14 comments

  1. No voting rights are threatened or have been lost. Millions of the rural poor (most of whom are white) remain shut out. That takes us straight to the key point: For a long-growing chunk of the population, there is no one to vote FOR. No party, no politician, represents them and their greatest priorities. Media keep them swept under the carpet, and they have virtually no voice in the “public forum.” The Ds and Rs own the political system. Both are pro-war, anti-poor, pro-corporate empowerment. Research consistently confirms that most votes come down to economic issues – not race/age/gender. I would personally like to see some examination of how and why Dems work so hard to utterly alienate millions of poor white people.

    1. Plenty of rural, poor whites in my area who are still enthusiastic about 45 and his minions. They will vote accordingly in the midterms; having no real interest in bettering themselves or their communities as long as they can keep those pesky black & brown-skinned folks down – and of course the sinful gay types who are so fond of acronyms.

      For the most part, poor, rural whites have no one to blame for their miserable station in life but themselves. They were given an upper-hand in this country since birth but chose the easy route of victimization.

  2. “If voting changed anything, they’d make it illegal”
    -Emma Goldman
    That statement, notwithstanding, vote for whom?
    Joe Biden, and company?
    I heard a lot of promises made by Joe, during his campaign, none of which have come to fruition.
    The last time that I voted, Nobel Peace Prize winner, Barack Obama, uttered much flowery rhetoric about justice, and concrete promises about single payer health care.
    What did he deliver?
    Romneycare, and eight years of slaughter in Afghanistan, the continuation of the war on drugs (poor people), aid to bankers who looted the savings of the working class, well you get the picture.
    But, there’s always the courts.
    The courts who throw a kid in prison for marijuana possession, but refuse to jail big pharmaceutical executives for pushing synthetic heroin?
    A cop murders a kid, and is set free, based upon good behavior, after serving a couple of years.
    Another kid , who serves 20, 30, 40 years, for a crime that he is demonstrated not to have committed, yet there is often a push to retry him, after Herculean efforts to obfuscate the truth, are at long last, overcome.
    The courts that gave us Citizens United?
    What a dystopian title that is.
    Anybody feeling particularly United?
    Folks like Gary Webb, and Charles Bowden, and Edward Snowden, and Chelsea Manning, and Julian Assange, have devoted, and sacrificed, their lives, to give us a glimpse of the reality that surrounds us, elusive though that truth might be.
    But, willful blindness is different than being deceived.
    There may be tiny pockets of integrity to be found.
    I think of people like Dennis Kucinich, or Paul Wellstone, or Ralph Nader, or Cynthia McKinney.
    What good did our voting rights actually get for us in the long run, when you apply it to those named individuals, not to mention those others assigned to obscurity by the two party duopoly.
    The first vote that I cast was for Jimmy Carter.
    The last, for Barack Obama.
    My head is a mess from beating it against the wall.
    I wish that I would have gathered up my family, and got the hell out of here after the events of September 2001.
    I really think that I might have liked Iceland.
    They dealt with their banksters, after the 2008 financial crash.
    And, it wasn’t by opening up the vault, so the few remaining assets could be looted again, by the same kleptomaniacs.
    I’ve fought for justice my whole life.
    For myself, and for oppressed people, whose suffering I just couldn’t abide.
    To what end?
    To what end Dr. King?
    It’s black history month.
    Our media gives us practically nothing about this history.
    And, what they do give us is feel good stories about the isolated black person, who was so gifted, and determined, that they broke through the marginalization.
    The ugly history is still suppressed.
    As it is with the indigenous peoples of north and south america, still.
    And, the oppression, and marginalization rolls on.
    In fact, we may be rolling back downhill.
    I think that we are.
    I just want to laugh, and smile, and sing, and touch.
    Dress my brothers wounds.
    Isn’t that my “god given” right, as a human being?
    Not in the USA.
    It’s a crime to feed a hungry, homeless person, in some jurisdictions.
    I wish you all well.
    Hope to see you at the library.
    A sadness envelopes the land, manifest in anger and violence.

  3. If I neglected to acknowledge Ralph Nader, it was nothing more than a huge oversight.
    Ralph Nader = Integrity

  4. This all seems hopelessly trivial compared with the real impediments: gerrymandering, third party qualification, convergence of media and establishment, private money funding, Citizens United, … politicized national security apparatus and deep state.

  5. As long as capital makes money from cheap, dark-skinned labor, dividing and weakening the working class through racism, destroying the social safety net, running an incarceration state, funding militarized and repressive policing, then ‘racial equality’ will not actually come about. It is all about the money, and voting rights only starts to approach that issue. This article is a failure at political economy.

  6. The Democrats made all this racist legislation and these court rulings possible by their cowardly refusal to challenge the Republicans over Supreme Court nominations and put up a fight in state legislature races. The Dems have abandoned the People, because getting rich and raising money is more important to the Dem Leadership than protecting our democracy.

  7. a typical ruling class reactionary analysis from an anti-intellectual with neither sociological or political comprehension….more proof that liberals are the most fascist

    1. @alexandr herzen
      Dan Siegel is not a “ruling class reactionary.” I live in the Bay Area and am familiar with some of his work, which has been excellent. He stands up for people of color, how is that being “ruling class reactionary”?

      Instead of just childish and mindless name-calling, why don’t you articulate your problems with Siegel? What specifically did he say here that you find “ruling class reactionary” or that you disagree with?

  8. Unless one rejects the possibility of a non-violent path of political revolution in the country, voting rights are an important battleground. If you ask me, the people revolted after George Floyd’s murder, then went out and won the battle at the polls that fall, even winning control of the Senate (as much as our choices at that time allowed). It’s a dual power situation, now, though the corporate dems and centrist sell-outs still have the upper hand by the slightest of margins (like two or three votes in the Senate). With just that much more power, we’d be debating, today, why Biden didn’t go even farther than BBB (and what should be the nation’s next steps). He’s got a few more months, but right now, Biden’s looking like a failure. If he keeps going down — and if the Dems don’t manage the win in the fall that allows him to revive his presidency — he’s likely to be primaried from the left in 2024 (assuming he wants to run again). LBJ was primaried from the left in 1968; there is precedent. What if Abrams wins the governorship in Georgia, and, riding high, she challenges Biden. Imagine her against a Trumper Republican in 2024. Not trying to go to fantasyland, people (cuz you never know), but do you see how close progressives are to gaining actual, national political power? That’d be a fresh, new platform with which to construct and implement an array of social and economic change to revolutionize our society. I’m with Siegel. Keeping the progressive majority among House Dems and strengthening the Dem hold on the Senate should be our goal in 2022 while we prepare to influence whatever the race turns out to be in 2024.

  9. A very good article, well done. But I have to ask, do the politico’s we elect, are they under any obligation to enact legislation benefiting those who elected them? NONE WHATSOEVER I’M AFRAID! What did black voters, poor working-class voters actually get out of the 2020 election which saw the Democratic Party taking control of the House, Senate, and the White House? WE GOT NOTHING! Does your vote really count or matter in this governmental; system here ion the USoA? ABSOLUTELY NOT! Wake-up people, we have to revolutionize the American system if we really want change in our nation. So how can this happen? Strong, opposition third parties! Leave the Dems and the Repubs behind, re-register with a third party, work to get that party on the ballot (local, state, and federal) and massively take control of the government. It’s called, non-violent, peaceful, non-cooperation with the powers which be. We have the numbers, we can gain control via We the People!

  10. Voter suppression of Black people is certainly a problem. But as other commenters have said, what good are voting rights if there’s no one worth voting for? Following up on Southpaw’s quote of Emma Goldman, in this society there are as many good reasons to vote as not to vote, and it basically comes down to one’s personal proclivities.

  11. There have always been laws, restrictions, deadlines, requirements for voting. Gerrymandering is wrong but it’s been going on so long it will never change unless people demand that we adhere to integrity in our system. They are not demanding this. Still, I do not see why following “out of precinct” rules or “are you registered, show you ID?” is a problem. How are deadlines wrong? Tulsi Gabbard got sabotaged in her bid for the presidency as did B Sanders. Where is the free and fair in that? We cannot throw out the baby with the bath water. What is an election if it is not free and fair? Don’t forget the fair part.

    1. @Donna
      Changing the electoral system from winner-take-all to proportional representation would eliminate gerrymandering automatically. Every democracy except for the U.S. and U.K. has it, so it shouldn’t be a big deal for us to get it either. But hey, just about the whole world has single-payer health care and we can’t get that either.

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