Quo Vadis, America?

Voting Rights in the United States, past, present, future

- C.Pung, August 2, 2022

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“The vote is precious. It is the most powerful non-violent tool we have in a democratic society, and we must use it. ” - John Lewis, late civil rights activist and member of the US House of Representatives for Georgia 

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The United States is a relatively young democracy that technically provides its citizens with broad access to the ballot box. The rules for voting in federal, state, and local elections in the U.S. today are relatively straightforward: one must be a citizen of the U.S.(in some areas non-citizens are allowed to vote in local elections only), be 18 years old on or before Election Day and must meet your state’s residency requirements. These requirements seem relatively straightforward and progressive in spirit; however, a closer look at the history of voting rights in the United States, and in specific, its history regarding its Black citizens and the right to vote, reveals a deeply checkered and tortuous path towards suffrage.

Historically, voting rights came into effect with the initial ratification of the Constitution by nine of the13 states, with Delaware having been the first to ratify the Constitution on December 7, 1787, and New Hampshire providing the ninth and final vote for ratification. The first federal elections took place from December 1788 to January 1789. All 13 states eventually ratified the Constitution by 1790. In 1790 there were almost 700.000 enslaved people of African descent in the United States, none of which were considered part of the body politic.

The Constitution is the foundational document of our American democracy, but the formation of this document was itself highly contentious. The Federalists, led by John Adams, wanted a strong central government, while Patrick Henry and the Anti-Federalists demanded a Constitution which would ensure specific rights for each individual state. Hence, a compromise was struck and the Bill of Rights was included in the Constitution.  Under this agreement, states were allowed to establish their own voting laws, rules and regulations. They chose to grant the right to vote to white male property owners only. In 18th century America, this group of men made up only 6 percent of the total population. However, as the century proceeded and territories expanded west, enfranchisement also expanded. In the 1800s most states gave white male protestant property owners, 21 years of age and older the right to vote. By the 1830s most states had removed property and religion requirements.

The 19th century saw America undergo seismic events which reimagined and redefined voting rights and the body politic at large. The Civil War (1861-1865) resulted in the manumission of America’s enslaved population, and the ratification of the 14th Amendment in 1868 procured citizenship for all people born or naturalized in the United States. Now, all former slaves were citizens, but unlike their white male counterparts, black men - though citizens- still could not vote.  

The 15th Amendment was ratified on February 3, 1870; the core objective of which was to ensure all Black American male citizens were given the right to vote and to prohibit states from infringing upon, limiting, or denying this right. The Amendment read:

“The right of citizens of the United States to vote shall not be denied by any State on account of race, color or previous condition of servitude.”

For black men, the 15th Amendment to the Constitution meant access to the ballot was in fact legally protected by the federal government. The cumulative effect of the 13th, 14th, and 15th Amendments resulted in hundreds of Black lawmakers being elected to hold office on the local, state, and national levels. Hiram Revels, from the state of Mississippi, became the first Black man to win a senatorial election and be seated in Congress. This period of prolific political representation by black citizens was known as the Reconstruction Era, and it lasted from about 1865 to 1877. During this period a total of 16 African American men served in the US Congress, more than 600 were elected to state governments and hundreds held local positions. Reconstruction provided us with a glimpse of the great potential and possibilities inherent within a fair and just American democracy. Sadly, this era was short-lived. In less than a decade from its inception, the political gains made during the Reconstruction era were rolled back, and the legal groundwork for a future disenfranchisement of the Black vote and voter was deliberately and systematically laid.

Beginning with the Supreme Court decision in the Slaughterhouse Cases of 1873, the scope of Reconstruction laws geared towards empowering black voters was severely restricted. In the United States v. Reese, the Court did irreparable damage to Black suffrage when it interpreted the Fifteenth Amendment as not actually conferring the right to vote on any individual, but rather simply forbidding states to engage in preferential treatment of any one individual. This reading of the Amendment identified the origin of the right to vote as deriving from the states, rather than from the federal government. This gave states free reign in determining how voters qualified, and under what circumstances voting would occur. Ten years later, the Court’s decision in United States v Harris in 1883, found the Klu Klux Klan Act of 1871 to be unconstitutional. It argued that in most cases the federal government could not penalize individuals for assault and murder. Accordingly, the Court argued that this punitive role belonged to the states. This decision had a deeply chilling effect not only on any further expansion of African American voting rights but on African American lives and survival in the United States.  The Court’s position inadvertently or deliberately, provided white terrorist organizations, such as the Klan, with an avenue from which they could threaten, attack, and even kill Black voters seeking to exercise their right to cast a ballot with virtual impunity.

 Finally, the disputed presidential contest between Rutherford B Hayes (Republican) and Samuel Tilden (Democrat) led to a resolution that effectively eliminated all political advancements made by Black American citizens during the preceding decade, and it all but obliterated the black vote. The presidential ballot returns from South Carolina, Louisiana, and Florida (the last three states under Republican control) were under dispute. The Republicans and the Democrats reached a compromise: Hayes and the Republicans agreed to Democratic control of the remaining Southern states, and in exchange, the Southern Democrats would not block the certification of Hayes’ election in Congress. (In some ways, this ploy sounds unsettlingly familiar to recent events surrounding our last presidential election and attempts made to alter or tamper electoral results.) Hayes became president, the federal troops withdrew from the South, and black men, women, and children were left to confront the perilous terrain of exercising voting rights in the New South - without any federal support. For the next hundred-plus years, African Americans found themselves in an ongoing, costly fight for suffrage.

Almost immediately after the Hayes election, Southern states passed a series of laws to restrict, or completely rescind Black voting rights.  Known collectively as the Jim Crow Laws, Georgia’s 1877 Poll Tax required people to pay a tax in order to be eligible to register to vote. To compound the financial duress this placed on voters, all past poll taxes had to be paid off before eligibility could be met. Needless to say, the majority of the recently emancipated Black population simply did not possess the means to pay the tax. Literacy tests further restricted exercising the right to vote. The structure and questions on these tests were deliberately confusing. If one question was answered incorrectly, the applicant was immediately disqualified. During this time, much of the population was illiterate, yet illiterate white men were often given a pass while educated and literate black men were told they had failed the test.  The Grandfather Clause of the late 19th and early 20th centuries was yet another tactic used to deny suffrage to the black voter. Enacted by a number of states, these clauses held that if a person’s father or grandfather had voted, or if the person was a descendant of a Confederate or a U.S veteran, they were then deemed eligible to vote. Clearly, the recently freed African American could make no such claim. The end of Reconstruction saw the systematic disenfranchisement of Black voters through multiple de jure and de facto means. In the decade between 1920 and 1930, of the 370,000 eligible Black voters in Georgia, only about 10,000 actually voted. This number represented less than 3 percent of the eligible Black male population. Granted, in 1945 the Supreme Court ruled that the white primaries, a tactic used by some Southern states to exclude African Americans from the political process and to prevent them from voting, were unconstitutional. However, the ruling lacked teeth because enforcement was non-existent, and many of the prohibitive Jim Crow Laws were still in place. White violence, terror, and the fear of reprisal for exercising one’s political rights meant the resurgence of a significant Black voting contingent would not occur within the United States until the Civil Rights Movement of the 1950s and 1960s. In reality, tangible change for the Black voter did not occur until the passing of the 1965 Voting Rights Act.

In the 1960s, African Americans began to organize peaceful protests against segregation, illegal voting rights practices, and other anti-democratic practices in the United States. One such demonstration was the march from Selma to Montgomery, Alabama. On March 7, 1965, these peaceful protestors were met by Alabama state troopers and were viciously and violently attacked. The entire event was caught on live television, watched by both a national as well as an international public. Many viewers found the brutality repugnant. Perhaps it was the searing visual impact of this violence, in conjunction with the murder of voting rights activists in Mississippi, that forced President Johnson and Congress to engage in the development of meaningful voting rights legislation, the result of which was the passing of one of the most sweeping and comprehensive pieces of legislature of the 20th century. 

The Voting Rights Act of 1965 “…outlawed all literacy tests and provided for the appointment of federal examiners (with the power to register qualified citizens to vote) in those jurisdictions that were “covered” according to a formula provided in the statute” (National Archives, Voting Rights Act, 1965). The Act also required jurisdictions that were particularly egregious in voting rights infringements to obtain permission, or “preclearance’ from the US Department of Justice or the District Court of Columbia before making or implementing any new laws, or procedures, requirements, or voting regulations.

These sweeping legislative changes resulted in the addition of hundreds of thousands of African Americans, and other marginalized peoples to the voting rosters.  Many of us hoped, and perhaps even believed the century’s long struggle for full Black suffrage was finally coming to an end. Many also felt the 2008 and 2012 elections of our nation’s first African American president, Barack Obama, was indicative of substantial change and evidence of a now rigorously open voting rights environment. We now know that while we as African Americans, and as Democrats, were deep in the political euphoria of this accomplishment, our Republican counterparts were assessing, systematically planning, and developing strategies to restrict the right to vote in ways many of us had neither anticipated nor quite imagined. 

"When there’s a vacuum in our democracy, when we don’t vote, when we take our basic rights and freedoms for granted, when we turn away and stop paying attention and stop engaging and stop believing and look for the newest diversion, the electronic versions of bread and circuses, then other voices fill the void. A politics of fear and resentment and retrenchment takes hold. And demagogues promise simple fixes to complex problems." Barack Obama, Former U.S. President

In 2013, the 5 to 4 Supreme Court’s ruling in Shelby v Holder basically eviscerated section 5 of the 1965 Voting Rights Act. This provision required states with a history of blatant discriminatory voting rights practices to first clear any changes in election rules and requirements with the US Department of Justice.  It is now becoming very clear to what extent this decision is negatively impacting and potentially altering the political landscape for African Americans, Democrats, and other marginalized peoples. Republican lawmakers saw this decision as a signal to intensify their disenfranchisement campaign. To date, they have introduced more than 250 pieces of legislature across the country aimed at restricting access to the ballot. Alabama, Georgia, Mississippi, South Carolina, Florida, Texas, Pennsylvania, Arizona, South Carolina, and New Hampshire are just some of the 43 states in which Republicans have proposed laws to restrict, limit, or eliminate:

•       Drive through voting
•       The number of voting machines at voting sites
•       Polling locations
•       Early in-person and Election Day voting
•       Absentee Ballots
•       Mail in ballot applications
•       Mail and dropbox access

In addition, Republicans are implementing much stricter voter identification laws and requirements, such as Georgia’s exact match. In this instance, citizens’ names on government-issued identification, such as a driver’s license, state ID card, or Social Security records must perfectly match the name as listed in the voter databases. If the person’s name deviates in any way from these voter rolls, they will not be eligible to vote. Voters are given about 2 years to rectify the discrepancy. Supporters claim these stricter measures are needed to increase voter confidence after the 2020 presidential election. This position is based on the unsubstantiated election fraud claims by Trump and his base. Opponents, such as Stacey Abrams, believe the perfect match rule will affect Black and Latino voters disproportionately. And since these groups are generally affiliated with the Democratic Party, the new requirement is seen as nothing more than a thinly veiled attempt on the part of Republicans to discourage voter turnout and gain an electoral advantage in the upcoming midterm elections and beyond.

Republicans are also actively disenfranchising citizens by enacting “Use it or lose it” Laws. The United States does not have mandatory voting laws. Yes, individuals can be removed from voting rosters if they move, die, or are imprisoned, “but a minority of states go further and engage in a practice that ought to be seen as glaringly unconstitutional --purging people from the rolls solely because they have skipped voting in several consecutive elections…” (American Bar Association, 2020)

These actions on the part of Republicans should cause alarm; the cumulative effect of which can only be understood as blatant attempts to severely limit suffrage in the 21st century, to once again disenfranchise African Americans and others who do not share their views and to render American democracy anemic and endangered.

The Constitution allows state governments to oversee and determine procedures and rules for local, state, and national elections. This provision gives states and their counties much latitude when it comes to determining who is afforded greater ease of access to voting polls. The Supreme Court’s recent decisions have weakened voting rights for many, but most specifically for African Americans. As far as political offices are concerned, Republicans control 28 out of 50 gubernatorial seats, and “as of July 1, 2022. Republicans controlled 54.27% of all state legislative seats nationally, while Democrats held 44.41%. Republicans held a majority in 62 chambers, and democrats held the majority in 36 chambers.” The Republican Party is in the midst of a moral crisis. Their overt agenda to restrict voting rights is a rogue and un-American one.  It is clear these numbers as they stand do not bode well for the continuation of a vigorous American democracy in future elections.

(https://ballotpedia.org/Partisan_composition_of_state_legislatures)

The NAACP and other civil rights organizations are directly confronting this challenge through a number of lawsuits and other legal challenges. Grassroots groups are actively pursuing multiple channels to inform, empower and equip voters. With the John Lewis Voting Rights Act, (H.R.4) Democrats in Congress have proposed legislation that would once again reinvigorate and strengthen the parts of the 1965 Voting Rights which were struck down by the Supreme Court. But in order to effect change, the legislation must be passed. We, as African Americans, know what the path to reversing these recent assaults on our democracy has to be. We have collectively and historically walked this way before.  

The tool is the ballot. We must vote!

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