Around the country, Republican legislators are using straw man arguments about voter fraud to push increasing restrictions on access to the ballot box. In response, President Joe Biden and others have slammed the changes as “un-American,” rhetorically downplaying the violence of voter suppression that has in fact been at the core of U.S. history.
When Congress passed the Voting Rights Act in 1965, a century had already passed since the end of the Civil War, and the passage of the Thirteenth, Fourteenth and Fifteenth Amendments that defined birthright citizenship and the political and legal rights that accompanied that.
In that century, with the exception of the first decade-and-change of Reconstruction, Black people in the South were, through webs of Jim Crow laws placed into state constitutions over a period of decades, largely blocked from exercising the right to vote. Those laws included property tax requirements for voting, literacy tests, poll taxes, sometimes even bizarre knowledge and trivia tests asked only of Black residents. In much of the South, where the then-segregationist Democratic Party had a lock on power, the Party defined itself as a private “club,” and set its own rules — including a whites-only voting restriction for primary elections.
While many of these laws also had the potential to exclude poor and under-educated white residents from the voter rolls as well, the main impact was against Black people. Indeed, the majority of Southern states moved to protect the franchise of impoverished white voters by codifying so-called “grandfather clauses,” which allowed illiterate and impoverished whites, who otherwise would be excluded from the political process, to vote so long as their grandparents had been eligible to cast ballots in the two years succeeding the Civil War — a clause that overwhelmingly, and deliberately, worked to protect whites while surgically excluding Black voters, whose grandparents hadn’t yet reaped the electoral benefits of Reconstruction in those years prior to the passage of the Fifteenth Amendment, from access to the ballot box.
Even in locales far from the old Confederacy, rampant discrimination and racialized violence meant that Black, and, in the Western states in particular, Asian American and Latinx residents, were, during these years, marginalized politically, and in many cases economically.
What made this web of laws so vastly pernicious was in part the sheer ingenuity of the methods of discrimination. Generations of politicians and lawyers worked diligently to exclude Black voters from the political process while often claiming to be doing so in a way that was “color-blind.” It was a form of don’t ask, don’t tell discrimination pushed by segregationist Democrats that, for the better part of a century, conservative judges and Supreme Court justices upheld.
Now, five generations after the original Jim Crow edifice was built, the modern GOP, with a nod and a wink of approval from a right-wing Supreme Court, has become a party dedicated to mass disenfranchisement, and to both a purging of existing voter rolls and a contraction of the franchise for future would-be voters.
The recent Brnovich v. Democratic National Committee Supreme Court ruling upheld as constitutional Arizona’s law barring the votes of those who accidentally cast ballots in the wrong precincts from being counted, and also banning so-called “harvesting” of ballots. This ruling doesn’t go as far as the rulings of the late 19th and early 20th century that upheld Jim Crow, but it’s a step along the same trajectory. For, in ruling that there wasn’t an overt intent to violate the provisions of the Voting Rights Act, and coming on the heels of previous rulings that had already weakened the Act’s framework, the six conservative justices have opened the legal floodgates to creative constrictions of the franchise that pretend to be racially neutral while still having an obvious racial impact.
Like the architects of Jim Crow, today’s disenfranchisement specialists have identified a series of weak spots in the electoral systems of the country that can be exploited with racial consequences and yet maintain enough of a fiction of race-neutrality to pass a conservative Supreme Court’s half-hearted scrutiny. In Georgia, laws were passed barring morning voting on Sundays; these laws never mention race, but clearly the only point of such laws is to eliminate the “souls to the polls” efforts, in which thousands of Black voters march off to vote after church services in the South. In Arizona, the ban on the counting of votes accidentally placed in the wrong precinct will almost certainly hit non-white and low-income voters more, since infrequent voters are more likely to have problems navigating the complexities of the voting process, and, historically, for many reasons, these demographics have had lower voter participation rates. In Texas, the governor is pushing a set of restrictions that would massively roll back early voting processes in big, urban counties, where large numbers of non-white voters live.
Numerous other Republican-controlled states are moving in a similar direction; now, with the Brnovich ruling, it becomes more likely that these laws will withstand court scrutiny.
Jim Crow wasn’t implemented all in a rush; it was, in fact, a lengthy process, that, in some states, took decades, from the end of Reconstruction into the early 20th century, to complete. That, I fear, is what is unfolding here. What is being created through these laws is a precedent: a testing of the waters to see how far in coming years the disenfranchisement-boosters can go before the courts draw a red line. If the recent court decision is a harbinger of things to come, the answer, unfortunately, is that they can take things despicably far, safe in the knowledge that the court does not want to get involved as more and more Americans have obstacles placed in their path to the ballot box.
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