By Justice Eileen C. Moore
The Honorable Eileen C. Moore has been an Associate Justice of the Court of Appeal, Fourth Appellate District, Division Three since 2000. For her book about bias against African Americans, Race Results: Hollywood vs the Supreme Court; Ten Decades of Racial Decision and Film, she received four national awards.
“Yes, yes, Hubert. I want all those other things, buses, restaurants, all of that. But the right to vote with no ifs, ands or buts . . . that’s the key. When the Negroes get that, they’ll have every politician North and South, East and West kissing their ass, begging for their support.” — President Lyndon Johnson to his soon-to-be Vice President Hubert Humphrey from The Soul of America by Jon Meacham
Happenings in the United States were frenzied and chaotic after the Civil War. Besides attending to matters of Reconstruction, the country was engaged in wars with Native Americans, a transcontinental railroad was being built, and record numbers of people were immigrating to the Western Territories. Many of the bills Congress passed to aid the freedmen were vetoed by Lincoln’s successor, President Andrew Johnson. Sometimes Congress was able to override those vetoes, but not always. Eventually Johnson was impeached, surviving conviction in the Senate by one vote. Somewhat amazingly, it was amidst such turmoil that the post-Civil War constitutional amendments were written by congressional supporters of recently freed slaves.
The Thirteenth Amendment abolished slavery and was ratified in 1865. The Fourteenth Amendment granted national citizenship to all persons born or naturalized in the United States, including former slaves, and was ratified in 1868. The Fifteenth Amendment granted the right to vote to citizens of the United States regardless of their race and was ratified in 1870.
It didn’t take long for tricks and schemes to begin robbing the freedmen of their ballot. Starting in the 1890’s, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia enacted literacy tests for voter registration and used other methods to prevent African Americans from voting. Besides literacy tests and raw intimidation, trickeries in the ensuing decades included poll taxes, gerrymandering, voter identification, restrictive voter registration periods, good moral character requirements, criminal exclusion laws, and decreased polling places. These tactics were intended to ensure Black voters not impact the important political issues of the day.
POST-RECONSTRUCTION TO 1965
Oklahoma used a grandfather clause that permitted all men to vote so long as they or a family member had been eligible to vote in 1867. That, of course, was the year before the Fourteenth Amendment’s ratification. In Guinn v. United States (1915) 238 U.S. 347, the high court held Oklahoma’s statute violated the Fifteenth Amendment. The year after Guinn, Oklahoma passed another statute, providing that those who voted under the grandfather clause (meaning Whites) remained qualified to vote for life whereas others (Blacks) had to register within a short time period during 1916, or they would be perpetually disenfranchised. In Lane v. Wilson (1939) 307 U.S. 268, the Supreme Court issued its opinion in a case involving a Black man who had been banned from voting and who unsuccessfully sued the state. The Supreme Court held that Oklahoma’s 1916 registration window and grandfather clause violated the Fifteenth Amendment.
Texas used a different tactic to deprive Blacks of their vote. Nixon v. Herndon (1927) 273 U.S. 536, concerned a Black physician in El Paso who was not permitted to vote in the 1924 Texas primary election because Texas had a statute making it illegal for Blacks to vote in a Democratic primary. The Democratic Party claimed it was a private organization not run by the government, so there was no state action involved. The Court said the Fourteenth Amendment was passed with a special intent to protect Blacks, and ruled states may not classify by color when a private party acts on behalf of the state.
Undeterred, Texas simply passed a new statute that provided all political parties should set their own membership qualifications. The Democratic Party promptly adopted a resolution that only White Democrats would be allowed to vote in primary elections. Thus, there was no action by the state when a Black person requested a ballot. The county clerk would refuse the request, explaining he was just following the orders of the (private) Democratic Party. (See Grovey v. Townsend (1935) 295 U.S. 45.) The issue was finally determined in Smith v. Allwright (1944) 321 U.S. 649, when the Supreme Court ruled it was unconstitutional for a state to delegate its authority over elections to private parties to allow discrimination to fester.
Voting by poor people, including most Blacks, was further jeopardized when states imposed a poll tax. In Georgia, for example, every inhabitant of the state between the ages of 21 and 60 (except the blind and women who did not register to vote) was required to pay $1 each year. Georgia’s Constitution declared that, to be entitled to register to vote in any election, the person shall have paid all poll taxes. The Supreme Court held in Breedlove v. Suttles (1937) 302 U.S. 277, that voting rights are conferred by the states and states may determine eligibility as they see fit, bestowing its stamp of approval on Georgia’s enterprise.
In 1957, a Black woman tried to register to vote in North Carolina, whereupon the registrar of voters asked her to read certain sections of the Constitutions of the United States and North Carolina. The woman refused to read and was not permitted to register to vote. The matter reached the Supreme Court in Lassiter v. Northampton County Board of Elections (1959) 360 U.S. 45. The high court held North Carolina’s statute requiring that as a prerequisite to register to vote, a voter must be able to read and write any section of the Constitution, with such requirement applicable to members of all races, was not unconstitutional.
On April 16, 1963, Martin Luther King Jr. wrote a letter in the margins of a newspaper that was smuggled out of the Birmingham jail. About voting, Dr. King said: “Throughout the state of Alabama all types of conniving methods are used to prevent Negroes from becoming registered voters, and there are some counties without a single Negro registered to vote, despite the fact that the Negroes constitute a majority of the population.”
According to Meacham’s book, President Lyndon Johnson said to his Attorney General Nicholas Katzenbach in 1964: “I want you to write me the goddamndest, toughest voting rights act that you can devise.”
1965 TO 2013
In March 1965, activists organized protest marches from Selma to the state capital of Montgomery to spotlight the issue of Black voting rights. The first march was brutally attacked by police and others on a day that came to be known as “Bloody Sunday.” After a second march was cut short, a throng of thousands finally made the journey, arriving in Montgomery on March 24 and drawing nationwide attention to the issue.
The Voting Rights Act of 1965 (VRA), signed by President Johnson on August 6, 1965, was enacted to address entrenched racial discrimination in voting. Not only did the VRA outlaw literacy tests and poll taxes, it authorized federal officials to examine state registration and election procedures. Section 5 of the Act required certain jurisdictions, chiefly in the Deep South, to submit proposed legislation involving voting for federal approval. Statutes had to be submitted to the Justice Department or the District of Columbia District Court for “preclearance.” The Act mandated approval prior to implementation of the legislation, thus avoiding lengthy and expensive litigation to challenge a voting law after the fact. Section 4 of the Act provided the formula through which section 5 was to be implemented.
A little more than a month later, South Carolina’s Attorney General filed a complaint directly in the United States Supreme Court, asking for an injunction against the VRA’s enforcement. South Carolina argued the VRA was an unconstitutional encroachment on states’ rights. Several states filed amicus curiae briefs. Alabama said its brief was filed on behalf of its Governor, George Wallace, and the reason for its position was “to preserve and protect the rights and interests of Alabama, its citizenry and electorate from debasement and destruction through Federal legislative preemption of areas that are vital to self government.” Chief Justice Earl Warren authored the opinion in South Carolina v. Katzenbach (1966) 383 U.S. 301. The opinion notes that “after enduring nearly a century of widespread resistance to the Fifteenth Amendment, Congress has marshalled an array of potent weapons against the evil,” and found the VRA to be valid. Justice Hugo Black’s dissent declared section 5 treated the covered jurisdictions as “conquered provinces.”
In 1974, a federal trial court presided over a matter involving proposed redistricting of the voting districts in New Orleans. The Black population, 45 percent of the city’s total population and 34.5 percent of the registered voters, was heavily concentrated in a series of neighborhoods, and the rest of the city was overwhelmingly White. No Black had been elected to the city council in the 20th century. In Beer v. United States (1974) 374 F.Supp. 363, the district court ruled: “The plan tendered by the City will inexorably have the effect of abridging the right to vote in councilmanic elections on account of race or color.”
The Beer case reached the United States Supreme Court in 1976 (425 U.S. 130). The Supreme Court reversed the district court, devising a two-part “retrogression” test. If a proposed apportionment plan did not make matters worse, it was constitutional. In his dissent, Justice Thurgood Marshall rejected the majority’s declared process, stating that the majority did not answer the necessary question: “When does a redistricting plan have the effect of ‘abridging’ the right to vote on account of race or color?” He accused the majority of ignoring the statutory language of the VRA, which precludes plans that perpetuate discrimination, not just plans that maintain the status quo.
Another apportionment situation arose in Mobile, where its governing body was a three-person commission whose members were elected at large. Even though 35 percent of the population was Black, no Black had ever been elected to the commission. Black residents of Mobile filed a class action claiming the system abridged the rights of the city’s Black citizens. In Mobile v. Bolden (1980) 446 U.S. 55, the Supreme Court reversed the lower courts, noting Blacks in Mobile register and vote without hindrance and face no official obstacles to becoming candidates for election to the commission. The Court held that the Fifteenth Amendment prohibits only the purposefully discriminatory denial or abridgement of the right to vote, not voting laws that had a discriminatory effect.
The VRA was amended in 1982. Congress in effect negated Bolden by holding that, if the procedure being challenged had the result of denying a minority an equal opportunity to participate in the political process, it was in violation of the VRA.
The Supreme Court affirmed a federal district court’s conclusion that five of the six contested districts in North Carolina’s redistricting plan discriminated against Blacks by diluting the power of their collective vote in Thornburg v. Gingles (1986) 478 U.S. 30. In Chisom v. Roemer (1991) 501 U.S. 380, the Supreme Court held that the 1982 amendment to the VRA that prohibited any voting procedure which caused minority voters to “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” applied to judicial elections.
Thus, the VRA helped Black voters to achieve many successes, albeit inch by inch. Much changed, however, with a Supreme Court decision in 2013.
2013 TO THE PRESENT
In Shelby County v. Holder (2013) 570 U.S. 529, the Supreme Court said about the VRA that there was no denying “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” Thereupon, the high court struck down section 4 of the VRA, and without the preclearance formula in section 4, section 5’s preclearance requirements could not be implemented. No longer would there be a need for federal approval prior to enacting voting laws. Justice Ruth Ginsburg wrote in her dissent: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Since Shelby, matters reverted to the pre-VRA requirement of lengthy and expensive litigation to attack voting statutes after they were enacted. Several cases have reached the high court on gerrymandering issues, having varying results. See Harris v. Ariz. Independent Redistricting Com. (2016) 136 S.Ct. 1301; Ala. Legis. Black Caucus v. Alabama (2015) 575 U.S. 254; Golden Bethune-Hill v. Va. State Bd. of Elections (2017) 137 S.Ct. 788; Cooper v. Harris (2017) 137 S.Ct. 1455; Abbott v. Perez (2018) 138 S.Ct. 2305.
In 2019, the Supreme Court reached a landmark decision in Rucho v. Common Cause, 139 S.Ct. 2484. The opinion recognizes the practice of gerrymandering is unjust and incompatible with democratic principles, but concludes that partisan gerrymandering claims are not justiciable because they present a political question beyond the reach of the federal courts. Justice Elena Kagan’s dissent criticizes the majority for sidestepping a critical question involving rights to participate equally in the political process. She wrote that, in effect, the Court’s decision encourages dysfunctional polarization.
From its beginning, this country was different from others. In his book Empire of Liberty: A History of the Early Republic, historian Gordon Wood notes early America was a distinctly democratic culture that needed a government suited for its diverse and footloose people. Individuals wanted a say in how they were governed. It would be the only nation that was free and democratic in a world of monarchies. By the early 19th century, however, Wood says many came to realize that their future as a free and democratic people was being thwarted by the continuing pressure of slavery in their midst, and that the grand experiment in republicanism was not over after all, and would have to be further tested.
This country is quite familiar with conferring and expanding voting rights, and the only thing stopping America from safeguarding the votes of African Americans is the will to do so. After Black men got the right to vote in 1870, women of all races were enfranchised in 1920. The 26th Amendment, ratified in 1971, gave the right to vote to anyone 18 years of age or older. In 1982, when Congress reauthorized the VRA for another 25 years, it also required states to take steps to make voting more accessible for the elderly and people with disabilities. Congress passed a law in 1993 known as “Motor Voter,” requiring states to allow citizens to register to vote when they apply for drivers’ licenses. In 2002, Congress passed another law that placed new mandates on states and localities to replace outdated voting equipment, create statewide voter registration lists, and provide provisional ballots. Currently, several states have lifted their bans on voting for people with felony criminal records.
Just like the early 1800’s when Americans realized their grand experiment in democracy was still being tested by the presence of slavery, present-day Americans are realizing the moral magnitude of racial issues in this country resulting from America’s remaining manifestations of slavery. On June 25, 2013, the very same day the Supreme Court issued its decision in Shelby, gutting the preclearance requirement, Texas officials instituted a strict voter identification law that previously had been blocked under the VRA. On August 11, 2013, North Carolina’s governor signed a similar law, causing a federal judge to remark the law targeted African Americans with “almost surgical precision.” (N.C. State Conf. of the NAACP v. Cooper (M.D.N.C. 2019) 430 F.Supp.3d 15.) A 2018 USA Today analysis found election officials had closed thousands of polling places around the country with a disproportionate impact on communities of color. Georgia passed bills cutting voting hours in places where African Americans are a majority of the population, and restricting early voting on weekends. The Carnegie Corporation’s November 18, 2019 voting report states this latter measure was seen by many as a not-so-subtle attempt to target nonpartisan “Souls to the Polls” events organized by Black churches to get their parishioners to vote on Sunday after church.
Indeed, America is still being tested. We will never come close to the moral ideals envisioned by our founding fathers until all people are able to vote without obstacles and interference.
There is an apocryphal story about a question that was asked of Benjamin Franklin as he was walking out of Independence Hall after the Constitutional Convention in 1787. Someone shouted, “Doctor, what have we got? A republic or a monarchy?” To which Franklin supposedly responded with an ominous rejoinder: “A republic, if you can keep it.”