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.