Voting rights remain the biggest obstacle to racial equality –


Suffrage advocates are now forced to focus 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

More than 150 years after the end of the Civil War, restricting the right to vote continues to be the right’s fiercest strategy to maintain white supremacy in the United States, and the Supreme Court remains the most trusted partner. in these efforts. Just last week, the court majority dropped 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% Population. It is now highly unlikely that African Americans will elect more than one representative to Alabama’s seven-member congressional delegation this year. A seat in a very divided Congress will make the difference in a year where the New York Times says that only 43 seats out of the 435 members of the House will be competitive.

Although the five justices who made the decision described it as a temporary measure to prevent chaos just months before the election, this rationale was challenged by such a prominent authority as Chief Justice John Roberts, who, as recently as 2013, led the gutting effort. section 5 of the Voting Rights Act 1965.

Roberts wrote last week, “I respectfully disagree with the stays granted in these cases because, in my opinion, the District Court correctly applied the existing law in a thorough opinion without apparent error for our correction.”

As notable as Roberts’ disagreement with his right-wing colleagues 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 dates back at least to the infamous Dr Scott decision in 1857. In what is widely considered the worst decision ever made by the Court, Chief Justice Roger Taney, the Maryland slaveholder 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. This was precisely the question before the Court, but Taney’s decision went further.

The Court ruled that enslaved and freed Africans “were at that time [when the U.S. was founded] regarded as a class of subordinate and inferior beings, who had been subjugated by the ruling race, and, emancipated or not, yet remained subject to their authority, and had no rights or privileges except those who held power and government. could 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 sue.

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

The Fifteenth Amendment, ratified in 1870, states: “The franchise of citizens of the United States shall not be denied or restricted by the United States or by any state on account of race, color, or condition. previous bondage. It gives Congress the power to enforce the amendment through appropriate legislation. Application of the amendment has been 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 white supremacists who have undermined. President Ulysses S. Grant backtracked, 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 in had had enough of Reconstruction and Jim Crow laws dominated politics. life in the old Confederacy.

Particularly after the successful 1898 coup d’etat by Democratic Party leaders and violent white supremacists to overthrow black political and economic power in Wilmington, North Carolina, southern white politicians devised ingenious tactics to prevent the African Americans to vote and participate in politics. North Carolina, Georgia, and then the rest of the southern states imposed poll taxes, literacy and morality tests, registered voter vouchers, grandfather clauses, property requirements, primaries restricted to whites 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% of African Americans in Alabama, 31.8% in Louisiana, and 6.4% in Mississippi were registered to vote. Under pressure from the movement, Congress passed the Voting Rights Act (VRA) in 1965 to create an explicitly expansive mechanism for enforcing the Fifteenth Amendment.

The VRA had two main provisions. First, under Sections 4 and 5, designated states and counties with a history of using tests or other devices as pre-voting requirements and having less than 50% presidential registration or turnout of 1964 were required to obtain “prior authorization” from federal authorities before enacting changes to their election laws to ensure that those changes had a negative impact on voter turnout. As of 2013, following amendments to the VRA that included extending its protection to linguistic 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 the Section 4 definition of coverage was unconstitutional, thereby eliminating the Section 5 preclearance requirement. Echoing, but not citing 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 removing many barriers to black registration and voting in the states of the South.

But the VRA succeeded precisely because the preclearance requirement led to the rejection of more than 1,000 measures that would have negatively impacted minority voting rights in the states and counties covered. the Shelby The decision unlocked the suppressed creativity of America’s white supremacists, with Republican-controlled legislatures in at least 23 states passing 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.

The elimination of preclearance paved the way for Texas to further redraw and gerrymander its legislative districts, something the Supreme Court largely upheld in 2018 in Abbott v. Perez. The Court found 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. Suffrage advocates are now limited to law enforcement efforts under Section 2 of the VRA, which prohibits all states from adopting any “standard, practice, or procedure…imposed or enforced…for deny or restrict the right to vote of any citizen of the United States. because of race or color. But since last week’s decision in Merrill v. Milligan shows, the Supreme Court is also creating new obstacles to the enforcement of Section 2 rights, imposing its narrow interpretation of a law designed to expand the vote for African Americans,

Worse, last year the Supreme Court dismissed challenges to new Arizona laws that prohibit counting ballots cast by voters outside their precinct and outlaw the practice of collecting ballots. by mail and delivering them to the polls, a longstanding tradition in states where many people live in remote areas. regions with few polling stations. In Brnovich v. Democratic National Committee, the Court voted 5-4 to uphold Arizona’s restrictive laws, finding they had only a minimal effect on voter turnout and suggesting that challengers to voting restrictions should in the future voting evidence that the laws were passed with the intention of restricting voting by groups protected by the VRA. The law contains no such restrictions and was amended by Congress to clarify that challenges to voting restrictions under Section 2 could succeed by simply showing the impact of such laws on minority voting.

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

Dan Siegel
Dan Siegel

Dan Siegel is a civil rights attorney in Oakland.


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