Voting Rights Act of 1965 may have to be passed again
The March 19 civil rights march across the Alabama River, the start of a 50 mile march to Montgomery, Alabama, with Martin Luther King Jr. waving from the front row. | AP

WASHINGTON—After years of African-American struggle against Jim Crow, “black codes,” voter suppression, poll taxes, the KKK and white supremacy, Congress passed the Voting Rights Act in 1965.

“We shall overcome,” President Lyndon Johnson declared in exhorting Congress to approve the law in 1965, using the chorus of the civil rights anthem. And Congress did.

The Voting Rights Act produced an enormous change for both African-Americans and U.S. politics. The newly enfranchised people, effectively deprived of the right to vote for a century, exercised it in droves in following elections. The numbers of African-American state and local officeholders soared, notably in the South.

African-Americans, together with supportive white progressives, elected officials such as Mayor Andy Young in Atlanta, Democratic Gov. Doug Wilder in Virginia and members of Congress such as Young and John Lewis in Atlanta, Barbara Jordan and her successors in Houston and Bill Ford in Memphis.

And, of course, Barack Obama as president of the United States.

But civil rights and voting rights also fueled the white nationalist backlash, which, along with riots in U.S. cities, propelled segregationist Alabama Gov. George Wallace to national prominence. Johnson predicted the backlash and Dr. Martin Luther King suffered from it, in the South and in Chicago.

That same white backlash pushed Richard Nixon into the White House in 1968, helped fuel Ronald Reagan’s win in 1980 and was a top factor in Donald Trump’s narrow triumph in key states when he won the Electoral College vote in 2016.

And in 2013, prior progress due to the Voting Rights Act was put in danger and went into reverse in many cases. Thanks to the 5-man GOP-named Supreme Court majority, in Shelby County vs. Holder, the key section of the Voting Rights Act, which required federal “preclearance” of voting rules changes – from polling sites to voter purges to redistricting plans – was emasculated.

As a result of that case and  a prior one legalizing so-called “Voter ID” laws, along with other anti-voter moves such as shutting polling places in African-American areas, voter intimidation by so-called Republican “observers,” curtailed balloting hours and high-cost registration requirements, lawmakers may have to pass a Voting Rights Act all over again.

That’s the task facing African-Americans and their allies as the nation marks African-American History Month this year. And that’s what the new Democratic majority in the U.S. House wants to do.

“The road ahead presents demanding challenges as many states continue to advance legislation and policies that create barriers to full participation in our democracy,” Vanita Gupta, chair and CEO of the Leadership Conference on Civil and Human Rights told the House Judiciary Committee on Jan. 29, testifying for the Democrats’ comprehensive democracy restoration bill, HR1. It includes restoring the power of the Voting Rights Act, by re-enacting its pre-clearance section, among other reforms.

Meanwhile, not only are states – and not just Southern states – curbing voting rights but Republicans nationwide, led by President Trump and his Justice Department, are refusing to enforce or actively undermining the Voting Rights Act, she added.

“The president’s assault on voting rights can be seen in his defense of Texas’s discriminatory photo ID law and Ohio’s voter purge efforts, and in his failure to enforce the Voting Rights Act,” said Gupta, who was Assistant Attorney General for Civil Rights during the Democratic Obama administration.

“The Trump administration has not filed a single Voting Rights Act case, despite numerous efforts to create barriers to the ballot box for communities of color that have occurred over the past two years, including during last year’s midterm elections.”

“The U.S. Commission on Civil Rights recently examined the Trump administration’s record on voting rights and concluded: ‘The totality of this report shows that despite the DOJ’s diminishing enforcement actions, there is ongoing discrimination in voting that would merit increased VRA enforcement on the part of the Justice Department.’”

Before that, the 1965 Voting Rights Act was one of the apexes of the Civil Rights Revolution, along with the Civil Rights Act of 1964 and the Fair Housing Act of 1968. But in a way, it was the basic one.

The law explicitly provided that states or parts of states with a history of racial discrimination in voting not only were banned from future efforts but – more importantly – had to “pre-clear” any laws that could affect voting or representation of minorities with either the U.S. Justice Department or federal courts in D.C. At first, all the states were in the old Confederacy, but the VRA eventually spread to cover other minorities in other states, including parts of New York City and Alaska.

That means states had to “pre-clear” not just voter registration laws, but redistricting laws, laws setting up city or county boards elected at-large rather than by constituencies, voter ID laws, laws closing polling sites in African-American areas while opening them in white ones, voter purge laws, and so on.

The VRA’s impact appeared in election returns. For example, there were no southern African-American U.S. senators between Blanche Bruce, R-Miss., in 1875-81 and Tim Scott, R-S.C., from 2013 through now. The first African-American senator after Bruce left was Edward Brooke, R-Mass., in 1967. Even now, there are only three: Cory Booker, D-N.J., Kamala Harris, D-Calif., and Scott.

The last post-Reconstruction-era African-American U.S. House member, Rep. George White, R-N.C, left office in March 1901. For the next 28 years, the House was lily-white. From 1929-45, it had only one African-American: Three in a row from Chicago’s South Side. Democrat Adam Clayton Powell of Harlem joined Democrat Bill Dawson of Chicago that year. Until 1955, they were the only two.

Now the Congressional Black Caucus has 55 members: 53 House members plus Booker and Harris.

Scott, a Republican, did not join. But it says something about the South that its House delegations stayed lily-white from 1901 until 1973, when Democratic African-Americans Jordan of Houston, Young – the civil rights leader from Atlanta – and Ford of Memphis took their seats.

“The Mississippi state legislature elected Bruce in 1875, but Republicans lost power” there when Reconstruction ended in Mississippi the next year, Wikipedia notes. “Bruce was not elected to a second term in 1881. In 1890 the Democratic-dominated state legislature passed a new constitution disfranchising most black voters. Every other Southern state also passed disfranchising constitutions by 1908, excluding African-Americans from the political system in the entire former Confederacy.”

“This situation persisted into the 1960s until after federal enforcement of constitutional rights under the Voting Rights Act.”

The Voting Rights Act had a lot to do with that change in racial representation in politics, and not just in the South. Later, Congress applied the VRA to – among other places — parts of New York City, to end discrimination against blacks and Latinos, and to parts of Alaska, where Native Americans suffered.

But in 2013, the Supreme Court majority tossed all that out. It ruled the key “preclearance” section of the VRA unconstitutional. And the justices added that even if preclearance was constitutional, the data it used for 48 years was now illogical and outdated.

Conditions had changed in the old Confederacy, the court majority said. No, they hadn’t.

Virtually immediately after the court’s June 2013 ruling, GOP-run Texas rushed to enact restrictions on voting. Voters faced an onerous requirement to pay high fees at motor vehicle department offices – some of them hundreds of miles away from their homes in the sprawling state – and bring their birth certificates, to get driver’s licenses, which they could then use to prove their right to register and vote. Other forms of ID, including a military ID, were ruled out, except gun permits.

Other Southern states followed suit. North Carolina’s redistricting was so skewed that a federal judge tossed it out, saying the state legislature’s GOP majority packed African-Americans into a minority of legislative districts “with almost surgical precision.”

North Carolina’s action was so outrageous that it led directly to the creation of Repairers of the Breach, the Moral Mondays Movement led by the Rev. William Barber. It’s named for the weekly marches, every Monday, on the state capitol building in Raleigh.

“In recent years, the act has been gutted by the U.S. Supreme Court,” Repairers of the Breach says. “All federal and state elected officials should support the immediate restoration of the preclearance provision of the Voting Rights Advancement Act that was struck down by the court, including a revised preclearance formula that would protect against contemporary voter suppression efforts.

Voter repression wasn’t just in the South. After all, the justices, during the George W. Bush era, upheld – by the usual 5-4 split – the first state “voter ID” law, from GOP-governed Indiana.

Wisconsin’s GOP legislature enacted its own restrictive voter ID law last year, aiming at the African-American vote in Milwaukee. Judges tossed it, but the confusion cut turnout in majority-black areas.

Also last year, North Dakota’s GOP-run legislature rushed through a law that effectively deprived thousands of the state’s Native Americans of the right to vote.

It required anyone seeking to register – and North Dakota has Election Day registration – to show identification with a street address. Many Native American reservations have few paved roads and named streets. Their residents use post office boxes as addresses.

The Voting Rights Act isn’t totally dead, despite the High Court majority’s 2013 Shelby County ruling, Gupta admitted. Its Section 2, a more-general non-discrimination clause, may be used anywhere in the U.S. But to use it, the Justice Department must prove a city, state or other government body – even a school board or a water district – intentionally discriminates. With “preclearance,” proof was the other way around. The state and local governments had to prove they didn’t discriminate.

The preclearance “system enabled the Justice Department and federal courts for 50 years to block proposed discriminatory voting restrictions in states and localities with the most troubling histories of discrimination before these restrictions could disenfranchise voters, Gupta said.

“Shelby County decision emboldened states to implement voter suppression laws and policies, such as those requiring strict photo identification, cutting back early voting opportunities, shuttering polling places, and eliminating same-day voter registration,” she added.

“When I was at the Justice Department, we tried to mitigate the damage done by the Shelby County decision,” by challenging state and local laws that curb minorities’ right to vote. “There have been findings of intentional discrimination in at least 10 voting rights decisions since Shelby County,” Gupta said. “But there are many discriminatory measures going unchallenged by the current administration.”

The U.S. House’s ruling Democrats know that. That’s why HR1 restores teeth to the Voting Rights Act. So do citizens, Gupta noted.

She cited the overwhelming passage in Florida of a state constitutional amendment restoring voting rights to felons who have served their prison terms and been released. Black men were a disproportionate number of those 1.4 million people who could get their rights restored.

“The general arc of our nation’s politics over the last generation has made it easy to be cynical—easy to say America has, in that time, increasingly tended towards an oligarchy, in which more and more of the political power is concentrated in fewer and fewer wealthy and powerful hands,” House Judiciary Committee Chairman Jerry Nadler, D-N.Y., said in opening the Voting Rights Act hearing.

“HR1 is a bold and far-reaching attempt to correct this dangerous drift away from representative democracy, by reducing the role of money in politics, by restoring ethical standards and integrity to government, and by strengthening laws to protect voting. The bill declares Congress’s commitment to re-invigorating the Voting Rights Act, by restoring the act’s most important enforcement mechanism — its preclearance provision.”

It also includes the Voter Empowerment Act, which Lewis – who marched with Dr. King in both Washington in 1963 and Selma, Ala., in 1965 and House Majority Leader Steny Hoyer, D-Md., introduced, to curb other abuses which emasculated the Voting Rights Act. The measure would ban such voter suppression tactics as last-minute shifting of polling places and especially voter roll purges.

Rep. John Lewis, the iconic civil rights leader who was beaten almost to death on the Edmund Pettus Bridge in Selma during the original voting rights march. | AP

And it would bar state elections officials, notably Secretaries of State, from overseeing elections if they were candidates in them. That happened in the 2018 Georgia gubernatorial race, where the GOP Secretary of State narrowly beat African-American woman Democrat Stacey Abrams – after the Republican threw tens of thousands of African-Americans off the Peach State’s voter rolls.

This is “continuation of the on-going effort to ensure every American has an equal and fair opportunity to make their voices heard through the electoral process,” Lewis said. “At a time when some states have implemented or are planning to implement new barriers for voters who may be seniors, students, low-income Americans, members of our Armed Services, disabled, or speak English as a second language, Democrats see the need to double their efforts to protect voting access for all Americans.”

“Before the Voting Rights Act, States and localities passed a host of voter suppression laws, secure in the knowledge that it could take many years before the Justice Department could successfully challenge them in court, if at all,” Nadler said on Jan. 29.  “As soon as one law was overturned, another would be enacted, essentially setting up a discriminatory game of whack-a-mole.”

“Preclearance broke this legal logjam, by requiring states and localities with a history of discrimination against racial and ethnic minority voters to submit changes to their voting laws to the Justice Department or a court for approval prior to taking effect.”

“This vital provision was effectively gutted in 2013,” Nadler said.  In the absence of preclearance – and of the teeth of the Voting Rights Act – “the game of whack-a-mole has returned.”


Mark Gruenberg
Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.