6

THE VOTING RIGHTS ACT OF 1965

Until every qualified person regardless of … the color of his skin has the right, unquestioned and unrestrained, to go in and cast his ballot in every precinct in this great land of ours, I am not going to be satisfied.

—PRESIDENT LYNDON B. JOHNSON, 1964

Despite decades of futile effort, African Americans and other nonwhites continued to press for voting rights through the courts and political system. Until the 1950s, however, a political solution to black disenfranchisement seemed out of reach. Democrats in the South continued their tenacious commitment to black disenfranchisement with minimal opposition from their party counterparts in the North or from Republicans intent on pursuing other priorities. With the passing of the Reconstruction generation, the failure of the Lodge Bill in 1891, and secure Democratic control of the South and Republican dominance in the North, the Republicans’ commitment to black voting rights faded away by the turn of the twentieth century.

Republican leaders ceded control of the southern states to white supremacists who had all but extinguished black voting. The Republicans ended their efforts to enfranchise African Americans and establish a Republican Party in the region based on black votes. Their aim shifted to the building of a competitive, “lily white” Republican Party in the South that would break up the solidly Democratic South and unite white conservatives across America. Republican fusionists hoped to create a dominant, nationwide conservative majority of white citizens able to vanquish the liberal opposition in any region of the land. In short, by the first decades of the twentieth century, disenfranchised nonwhites lacked support for voting rights in either of the nation’s major political parties. Instead, the dynamics of party competition reinforced the discriminatory status quo, leaving court action as the only recourse for the achievement of nonwhite voting rights.

Republican William McKinley assumed the presidency in 1897 after four years of Grover Cleveland’s Democratic administration. Although McKinley paid lip service to discrimination against African Americans, the president and the Republicans who controlled Congress did not match words with deeds. In February 1899, Republican representative Edgar D. Crumpacker proposed without success a bill that would require the U.S. Bureau of the Census to assess the extent of racial disenfranchisement in the states. Crumpacker anticipated using this analysis to enforce section 2 of the Fourteenth Amendment by reducing representation in Congress and the Electoral College in proportion to the decline of black voter participation. Similar legislation languished in Congress for more than a decade without majority support from Republicans or endorsement by the successive Republican administrations of McKinley, Theodore Roosevelt, and William Howard Taft. Apparently emboldened by the opposition of conciliatory Booker T. Washington, President Roosevelt declared that he would veto the Crumpacker bill if enacted by Congress.¹

A 1918 editorial in the influential black newspaper the Chicago Defender decried inaction on voting and civil rights by the GOP—an acronym for the Republican Party that took hold in the late nineteenth century as representing first the “Gallant Old Party” and later “Grand Old Party.” The editors charged that Republicans had forsaken their loyal black voters and shown instead “that they are in sympathy with their white brothers in the southern section of the country. This is evidenced by their refusal to enforce Section 2 [of the Fourteenth Amendment] of the Constitution,” even though “the Republican party had both branches of Congress and the executive branch.”²

Following the two administrations of Democrat Woodrow Wilson, who lacked any commitment to black rights, Republicans held the presidency and both houses of Congress from 1921 to 1931. They channeled their scant energy on racial issues into unsuccessful efforts to enact federal anti-lynching legislation. Black leaders blamed this failure on Republicans, who no longer represented the party of Lincoln, and began to reconsider their historic ties to the GOP.

The Republican Party by 1920 had radically shifted its racial orientation from the Civil War and Reconstruction years. Conservative Republicans, wary of federal activism on race and seeking an alliance with white southern conservatives, had become a dominant force within the party. Thus, African Americans found themselves caught in the 1920s between Democrats committed to the defense of racial privilege in the South and Republicans eager to ensure their dominance of American politics by capturing the voters of anti-pluralist southern white Democrats. The National Colored Republican Conference complained in 1924, “In the party’s willingness to be fair, many have no confidence, and a change is imperative.” With an eye on the party’s dedication to enforcing the Eighteenth Amendment mandating the prohibition of alcohol, the conference called for “the enforcement of the entire constitution with the same vigilance and interest in every portion of it.”³

Instead, the party moved in the opposite direction in 1928 when presidential candidate Herbert Hoover initiated a new kind of “southern strategy,” based on building a competitive “lily-white” Republican Party in the South. Relying on familiar charges of fraud and corruption, the party attempted to purge some of the black leadership of Republican organizations in the South. Hoover’s supporters in the Resolutions Committee of the Republican National Convention quashed a proposal by black leaders that would have committed the party to enforcing the Fourteenth and Fifteenth Amendments no less than the Eighteenth. The platform devoted only thirty-five words to racial issues, repeating the party’s empty promise to back anti-lynching legislation; it said nothing about voting rights but pledged the GOP to the observance and vigorous enforcement of Prohibition.⁴

To implement its southern strategy, the GOP walked a thin line between building a white-based southern party and repelling black Republican voters in the North. Still, Hoover became the first Republican candidate since Reconstruction to win the electoral votes of Florida, North Carolina, Texas, and Virginia, and he lost no northern state with a substantial black population. “We have an opportunity to put the Republican Party in a position where it can remain in power without much trouble for the next twenty years,” said Senator William Borah of Idaho. “We have a chance to build up a party in the South which will always make those states fighting ground.” However, the Republicans’ longstanding inaction on civil rights and the Hoover campaign repulsed many black leaders. Neval Thomas, president of the District of Columbia NAACP, denounced Hoover’s Republicans as just another “crowd of oppressors” who had besmirched the traditions of Lincoln’s party and entered into “solemn compact with the Bourbon South in their wicked schemes against the Negro.”⁵

The Great Depression and a wrenching realignment of American politics killed the dream of establishing a competitive, white-based Republican Party in the South. A two-tiered realignment of the American party system began after 1929. Between 1930 and 1932, the Democrats benefited from a “Depression effect” that swelled the ranks of party voters throughout the United States but neither restored the Democrats to majority status nor reshuffled voter coalitions. After Franklin D. Roosevelt won the presidential election of 1932, his political leadership and New Deal reforms completed the realignment process by recruiting new voters and converting Republicans. From 1928 to 1936, the GOP’s share of the two-party registration fell from 69 percent to 45 percent in five northern states with party-line registration statistics and from 64 to 35 percent in major cities. After the election of 1936, the GOP had lost 178 U.S. House seats as compared to 1928, 40 Senate seats, and 19 governor’s mansions. The GOP retained a meager 89 House members and 16 senators. After losing New Jersey in 1937, the party held 7 governorships with a combined population of less than New York State.⁶

Disappointment with the conservative-led GOP and approval of Roosevelt’s New Deal economic program realigned the loyalties of black voters. Beginning in the midterm elections of 1934, most blacks enduringly shifted their votes to candidates of the Democratic Party. In Chicago, Arthur Mitchell became the first black Democrat elected to Congress, defeating Oscar De Priest, the last remaining black Republican. In national politics, African Americans came to vote in line with white southern Democrats, within the dominant Roosevelt coalition that also included Jewish and immigrant voters.⁷

But participation in the Democrats’ new majority coalition failed to advance voting rights for African Americans. A president loath to agitate the passions of race or upset his alliance with the southern Democrats let Jim Crow rule below the Mason-Dixon Line. In turn, white southerners who controlled most committees in Congress backed the New Deal and delivered their bloc votes to the Democratic Party. The Roosevelt reform agenda included no major legislative initiatives on behalf of minority voting rights. In a 1935 memo, Will Alexander, an administration advisor on race relations, listed nine reasons why “Negroes feel disappointed in the administration,” including discrimination in federal programs and the lack of civil rights initiatives.⁸

Toward the end of Roosevelt’s second term in 1939, Democratic representative Lee Geyer of California introduced legislation to ban poll taxes for voting in presidential elections. His bill won support from black advocacy groups and a new coalition group, the National Committee to Abolish the Poll Tax. Although Roosevelt had tepidly spoken out against the poll tax in 1938 and backed some state-level repeal efforts behind the scenes, he did not mention the Geyer bill during his unprecedented and successful third-term campaign in 1940, once more appeasing the powerful southern bloc of his party.

The Geyer bill passed the House in 1942 before succumbing to a southern Democratic filibuster in the Senate. Although Roosevelt claimed to have opposed the poll tax all his life, when asked about the Senate filibuster, the president dodged the question and said he could not express any opinion on the matter. The Chicago Defender denounced the filibuster saying, “national unity is still too weak to win this kind of battle centered around the race issue.… The North has let the South run hog wild since Reconstruction.” Anti–poll tax legislation passed the House several more times in the 1940s, but each time it died in the Senate. As North Carolina, Louisiana, and Florida abolished poll taxes, African Americans did achieve some limited progress in the states. Yet other mechanisms, such as the literacy test, continued to disenfranchise African Americans in the South.⁹

With no solution to disenfranchisement coming from Congress, African Americans continued to press for their rights in the courts. The NAACP led this effort after its formal incorporation in 1911. Its rapid growth to six thousand members by 1914 made it the first mass-based civil rights organization since the abolitionist movement. The NAACP began its foray into voting rights litigation when it filed an amicus brief in the 1915 U.S. Supreme Court case that successfully challenged the “grandfather clause” of the Oklahoma state constitution. In a rare display of support for civil rights by the Wilson administration, Solicitor General John W. Davis argued for the United States that the grandfather clause violated the Fifteenth Amendment because its choice of the 1866 date antedated the Reconstruction Acts that first gave blacks voting rights in the state. Ironically, four decades later, Davis faced off against the NAACP as a private attorney representing one of the defendant school systems in the landmark Supreme Court school desegregation case Brown v. Board of Education.¹⁰

The Supreme Court unanimously agreed with the plaintiffs in 1915, giving African American voters their first victory under the Fifteenth Amendment, forty-five years after its ratification by the states. In a departure from previous decisions that upheld discriminatory laws not explicitly based on race, the Court found that although the grandfather clause does not expressly exclude “any person because of race,” it “inherently brings that result into existence.” The decision invalidated the grandfather clause not just in Oklahoma but also in Maryland, Alabama, Georgia, Louisiana, North Carolina, and Virginia. In a response that demonstrated the tenacity of white supremacists, Oklahoma promptly revised its registration laws in more subtle ways to exempt most whites, but not blacks, from its literacy test requirement. Not for another twenty-three years would the Supreme Court strike down Oklahoma’s revised law and finally put the grandfather clause to rest.¹¹

Beginning in the 1920s, the NAACP and the American Civil Liberties Union (ACLU), founded in 1920, challenged the white primary election in the South. Under a 1923 Texas law that authorized political parties to set the rules for participation in their primaries, the dominant Democratic Party banned African Americans and Mexican Americans from its primary elections. In 1927, the Supreme Court ventured into the “political thicket” and struck down the Texas law as a violation of the equal protection clause of the Fourteenth Amendment. It ruled that “color cannot be made the basis of a statutory classification affecting the right set up in this case.” Texas quickly revised its law in a way that enabled the Democratic Party to stipulate that “all white Democrats … and none other” shall participate in its primaries.¹²

In 1932, the Court invalidated the new law, and to evade this decision, the Democratic Party of Texas followed the model of adopting its own “white primary” rule, which the Court upheld three years later. Not until 1944 did a Supreme Court remade by Roosevelt appointees decisively prohibit the use of white primaries. In the landmark Smith v. Allwright case, Texas claimed that as a private “voluntary organization,” the Democratic Party had the right to set its own rules, not subject to the protections of the Fourteenth or Fifteenth Amendments. The Court disagreed. In a reversal of its 1935 decision, it ruled that “a state cannot permit a private organization to practice racial discrimination.”¹³

Black plaintiffs aided by the NAACP made further progress in 1949 when the Supreme Court struck down an Alabama literacy test, implemented to circumvent the demise of the white primary. The law required a citizen both to “understand and explain” an article of the U.S. Constitution. The Court ruled that the legislative history of this proposal and the discretion it granted registrars made it “merely a device” for racial discrimination, and indeed election officials did apply it differently for white and black applicants. A decade later, the Court upheld a North Carolina literacy test that included no requirement for interpretation. Such a test, it found, was “applicable to members of all races” and “was one fair way of determining whether a person is literate, not a calculated scheme” for discrimination. Thus, the literacy test ultimately survived court challenges even in the liberal court led by Chief Justice Earl Warren. Worse yet for potential black voters, local registrars continued their discriminatory administration of supposedly objective literacy tests.¹⁴

The poll tax likewise survived constitutional challenge. In 1937, in a case filed by a white male, a unanimous Supreme Court upheld Georgia’s requirement for paying a poll tax, with certain exceptions for age and gender, as a prerequisite for registration. The Court ruled that “to make payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the Fourteenth Amendment. Privilege of voting is not derived from the United States, but is conferred by the State and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the State may condition suffrage as it deems appropriate.” In a reversion to nineteenth-century jurisprudence, the Court upheld the tax because it applied to all voters. Despite the poll tax’s obviously discriminatory effects on African Americans, who generally had much more limited economic resources than whites, the Court found the policy did not violate the Fourteenth or Fifteenth Amendments. The poll tax remained intact in most southern states.¹⁵

In 1948, President Harry Truman attempted to break the political logjam over voting rights when he embraced the first comprehensive civil rights program in the history of his Democratic Party. The president endorsed the expansion of voting rights, federal protection against lynching and employment discrimination, and elimination of segregation in interstate commerce and the armed forces. According to strategist Clark M. Clifford, Truman was countering a potential challenge from the left wing of his Democratic Party and Republican plans “to woo the negroes away from the Administration’s fold.” The resulting “difficulty with our Southern friends … is the lesser of two evils.” The South, even if provoked, would not bolt to the GOP and, critically, was less important to Democrats than some large northern states, where black voters held the balance of power.¹⁶

Democrats of the South decried Truman for breaking the sacred compact between northerners who let Jim Crow rule below the Mason-Dixon Line and white southerners who delivered bloc votes to the national Democratic Party. Georgia senator Richard Russell warned against tampering with “states’ rights and white supremacy,” the basis of “southern devotion to the Democratic Party.” A “federal Gestapo,” he said, was poised to deploy “every power of the Federal Government … to destroy segregation and compel intermingling and miscegenation of the races in the South.” When the Democrats inserted a civil rights plank into the party’s national platform, southern discontent turned into open revolt. The Southern Governors’ Conference organized a third-party movement, with South Carolina governor Strom Thurmond as their presidential candidate. The press dubbed his movement the “Dixiecrats,” which the governor disdained in favor of the “States’ Rights Party.” Although Thurmond waved the banner of states’ rights, his real purpose, he admitted, was to preserve “the racial integrity and purity of the White and Negro races.”¹⁷

Thurmond won 2.4 percent of the national popular vote and the electoral votes of South Carolina, Mississippi, Alabama, and Louisiana, the only states where Dixiecrat insurgents controlled the regular Democratic organization. The Dixiecrat revolt heightened the siege mentality of the South, making defense of the color line a patriotic duty. After 1948, moderation on race in the South was a vice that impeded success at the polls.¹⁸

After his victory in 1948, Truman continued the lengthy process of desegregating the armed forces, which he had begun by executive order before the election. He failed, though, to win Congress’s approval for voting rights legislation. Truman could not crack the “conservative coalition” of southern Democrats and conservative Republicans that held the balance of power in Congress. Some advocates of black voting rights blamed him for not trying hard enough and putting other priorities ahead of his program for African Americans. Earl Brown, in the black newspaper New York Amsterdam News, condemned Truman and his allies for giving in “to the Dixiecrats, whom they had just beaten in an all-out fight” at the Democratic convention “and in the election.” Brown said that “each major party inserts a holy sounding plank in its platform about its championing of civil rights and then does nothing about either the plank or civil rights.”¹⁹

A confluence of events in the 1950s improved prospects for voting rights legislation. In 1954, a unanimous Supreme Court led by Chief Justice Earl Warren issued its landmark Brown decision on school desegregation. The Court overturned its 1896 decision in Plessy v. Ferguson that legalized the concept of “separate but equal” facilities for blacks and whites. With Brown the Court declared that separation of the races in public education was inherently unequal and violated the equal protection clause of the Fourteenth Amendment. The decision sparked a “massive resistance” movement by southern white leaders, which antagonized northern Republicans and Democrats.²⁰

A burgeoning civil rights movement, led by the charismatic Reverend Martin Luther King, Jr., challenged massive resistance by mobilizing millions of everyday people to attain freedom for African Americans. In 1955–1956, King and NAACP activist Rosa Parks organized the Montgomery Bus Boycott, which sparked protests for civil rights across America and pressured Republican president Dwight Eisenhower and the Democratic Congress to sponsor civil rights initiatives.

Senate majority leader Lyndon B. Johnson of Texas emerged as the leading figure in Congress after Democrats recaptured control over both chambers in the midterm elections of 1954. Johnson was a master of the legislative process, but he also had ambitions to run for the Democratic presidential nomination. He understood that support for at least moderate civil rights legislation would make him a national candidate, not just a favorite son of the South.

In 1957, the administration submitted to Congress an omnibus voting rights bill drafted by Eisenhower’s attorney general, Herbert Brownell, and backed by the president. Johnson maneuvered the bill through opposition from his fellow southern Democrats by eliminating its most sweeping provision to give the federal government broad authority to enforce the Fourteenth and Fifteenth Amendments. The successful bill was the first national voting rights legislation since Reconstruction, and even in its watered-down version had important implications for black suffrage. It established the Civil Rights Division of the U.S. Department of Justice and the independent U.S. Commission on Civil Rights, and it authorized the Justice Department to initiate civil suits to prevent infringements of the right to vote.²¹

During the Eisenhower years, the Civil Rights Division cautiously enforced the act, filing fewer than ten voting rights lawsuits. Enforcement stepped up during the Kennedy administration, aided by amendments passed in 1960 that made for easier enforcement of the 1957 act. Although John F. Kennedy’s Civil Rights Division filed more than fifty voting rights suits, this case-by-case approach did not put much of a dent in the disenfranchisement of black people in the Deep South. In Mississippi, Alabama, Georgia, and Louisiana (where more than 90 percent of the litigation had taken place), black registration rates on average increased by only 2.6 percentage points from 1956 to 1964. Litigation was costly and slow. The average elapsed time between the filing of a complaint and the beginning of trial was 16.3 months. An average of 17.8 months elapsed between the commencement of trial and the entry of judgment. Appeals from an adverse decision took approximately one year, and in most cases either the government or the defendant appealed. Lawsuits faced resistance from frequently hostile southern judges, and the discretion vested in the local registrar made it difficult to end discrimination even after winning judicial relief. The Roman sage Cicero famously said, “The foundation of justice is good faith.” Of that, there was precious little among the white Democrats who controlled southern governments.²²

In Dallas County, Alabama, for example, two-thirds of the county’s black population lived in poverty in 1960. Only 156 of 15,115 African Americans of voting age had surmounted obstacles to registering for the vote, compared to 9,195 of 14,400 voting-age whites. In April 1961, John Doar, Kennedy’s new head of the Civil Rights Division and later the chief attorney for the U.S. House Judiciary Committee’s impeachment investigation of Richard Nixon, filed his first voting rights suit in Dallas County. Predictably, trial occurred more than a year later in May 1962. The county registrar delayed the lawsuit by resigning, and after an appeal, the circuit court issued an injunction in September 1963, thirty months after the initial filing. But local police continued to harass and arrest blacks who attempted to register, forcing the Department of Justice to file yet another lawsuit in that county.²³

Dallas County sheriff Jim Clark retaliated by breaking into the Selma headquarters of the Student Non-Violent Coordinating Committee and arresting several members for “illegal circulation of literature and promoting a boycott.” Police continued to arrest many black people seeking to register in Selma or protesting the denial of their voting rights. Eventually, on February 4, 1965—nearly four years after Doar’s first lawsuit and just three days after police arrested Reverend King and other demonstrators in Selma—a federal judge issued a final ruling that eliminated most formal barriers to black registration but left in place local registrars and their protectors in the sheriff’s office. Despite the years of futility in Dallas County and elsewhere, the work of the Civil Rights Division established an important factual record of voter discrimination, buttressed by hearings held across the South by the Commission on Civil Rights and reminiscent of investigations in the South conducted during Reconstruction.²⁴

In 1963, the one hundredth anniversary of the Emancipation Proclamation, black organizations began the most widespread civil rights demonstrations in the nation’s history. Led by King, the movement turned massive resistance against itself by provoking violent responses to peaceful demonstrations in southern cities. A protest march in Birmingham, Alabama, generated national outrage as television viewers watched policemen turn dogs and high-pressure hoses on nonviolent demonstrators. This was exactly the response that King and other civil rights leaders had expected of the notorious Bull Connor, who headed the police forces in Birmingham. The demonstrators put themselves at great personal risk to sear into the American conscience the need to secure justice for black Americans.²⁵

The Birmingham incident, which sparked sympathy demonstrations nationwide, moved President Kennedy for the first time to make civil rights a national priority and to draft new legislation. In a radio and television address to the nation, Kennedy became the first president of the twentieth century to make a moral commitment to ending racial discrimination. As was his style, Kennedy tied this domestic issue to America’s quest for democracy and freedom worldwide. He said, “We preach freedom around the world, and we mean it, and we wish to cherish our freedom here at home, but are we to say to the world, and much more importantly, to each other that this is the land of the free except for the Negroes; that we have no second-class citizens except Negroes; that we have no class or caste systems, no ghettoes, no master race except with respect to Negroes?”²⁶

Support for civil rights did not help Kennedy politically. A plurality of poll respondents in the fall of 1963 thought he was moving too fast on civil rights. Kennedy’s approval rating fell about 10 points between the spring and fall of 1963. Not until after Kennedy’s assassination did President Johnson and Republican Senate minority leader Everett Dirksen overcome a southern Democratic filibuster to enact the Civil Rights Act of 1964. The act banned discrimination by race or sex in employment and prohibited segregation in public accommodations and facilities.²⁷

Only six Republicans joined southern Democrats in voting against the Civil Rights Act, but one of them was Barry Goldwater, the conservative senator from Arizona who ran as the party’s presidential candidate in 1964. Goldwater’s negative vote portended a sea change in American voting. With backing from the Republican National Committee, Goldwater launched a new “southern strategy” aimed at reanimating the dream of uniting northern and southern white conservative voters while conceding the black vote to Democrats. The GOP, Goldwater had earlier confided to party leaders, could not “out-promise the Democrats” in competition for black votes, “and that’s what it takes when you appeal to people as groups.” The party must “go hunting where the ducks are,” he advised. With his backing, the national party urged southern voters to replace Democrats with more conservative Republicans, scrapped its minority division, and launched an organizing drive among white southerners, ironically called “Operation Dixie.” Strom Thurmond, the former Dixiecrat, renounced his Democratic affiliation and joined the Republican Party in 1964 to support Goldwater.²⁸

Mindful of the close race that had occurred in 1960, the GOP rolled out a “ballot security” plan in 1964, dubbed “Operation Eagle Eye” after a similar effort in Arizona. The party planned to station 100,000 “eagle eyes” at polling places to discourage fraudulent voters. With Eagle Eye targeting heavily Democratic minority neighborhoods in thirty-six cities, critics scorned it as a thinly disguised effort to reduce turnout by Democrats. In Houston, handbills circulated in heavily black neighborhoods warning that anyone with outstanding parking tickets or convictions for traffic offenses were subject to arrest if they tried to vote in the election. Neither proponents nor critics of the operation, however, could show any demonstrable effects on turnout. Allegations about the participation of former state party chair William Rehnquist in Arizona’s Eagle Eye program resurfaced at his hearings to become Supreme Court justice in 1971 and chief justice in 1986, but they did not derail his confirmations for either position by wide margins in the Senate.²⁹

President Johnson decisively defeated Goldwater in the general election. He won a record 61 percent of the popular vote and 90 percent of the Electoral College. His Democrats gained better than two-thirds majorities in both houses of Congress. But Goldwater swept all five Deep South states, four of which had not voted Republican since Reconstruction. He captured three-quarters of the Deep South counties, compared to the just one in five won by Eisenhower in his landslide victory of 1956. Four months before the election, when he signed the Civil Rights Act, Johnson mused to his aide Bill Moyers, “I think we have just delivered the South to the Republican Party.” Johnson’s prophesy slowly unfolded through the remainder of the century. The Republican Party’s executive director John Grenier brushed aside criticism that his party was exploiting southern race prejudice. “History will not be concerned with motives of the Southern vote,” he said, but only with the fact of its conversion to the GOP. Johnson and Grenier had each in their own ways anticipated the white South’s conversion from solidly Democratic to predominantly Republican.³⁰

By the time of Johnson’s victory, the U.S. Supreme Court had triggered a revolution in how voters selected members of Congress and state and local legislatures, resolving the vexed question of geographic- versus population-based representation. In the 1962 case of Baker v. Carr, the Court rejected claims that redistricting was a strictly “political question” and authorized judicial review of redistricting plans. Plaintiff Charles Baker’s heavily urban state representative district in Tennessee had ten times the population of some rural districts in the state, a common phenomenon across the nation. The Court found that “examples could be endlessly multiplied” of “geographic inequality in relation to the population standard.”³¹

Two years later, in follow-up cases, the Supreme Court elucidated the standard of equal population for judging the constitutionality of legislative districts. In the Georgia case of Wesberry v. Sanders, the Court ruled that congressional districts must be drawn with roughly equal population. With its ruling that under the Constitution, “one man’s vote in a Congressional election is to be worth as much as another’s,” the Court established for the first time in American history the principle of “one person, one vote.” In the Alabama case of Reynolds v. Sims, the Court extended this principle to state legislative districts. In rejecting any basis for apportionment other than population, Chief Justice Warren wrote that “legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” In later decisions, the Court decided that congressional districts must be as close as mathematically possible to equal population, and that state and local districts are presumptively constitutional if the deviation between the most and least populous district is 10 percent or less. Otherwise the jurisdiction must prove that a compelling interest justifies the deviation.³²

In 1967, Congress acted to effectuate these one-person, one-vote rulings by requiring that states elect members of Congress through single-member districts. Its object was to preclude states, especially in the South, from evading the Court’s decisions by reverting to at-large state elections for Congress or, more plausibly, submerging minorities in multimember congressional districts controlled by white majorities.

The states responded by redrawing the nation’s political map as they reapportioned congressional, state, and local legislative seats so that no person’s vote would be substantially weighted more than another’s. This reapportionment revolution substantially expanded the voting power of African Americans and other minorities, who were previously heavily concentrated in malapportioned urban areas. Now urban minority votes carried the same weight as the votes of white people, who predominated in rural districts. However, equal population requirements did not end the gerrymandering of legislative districts. Resourceful politicians found ways to protect themselves as incumbents and to favor their political party in redistricting within the constraints of one person, one vote.³³

In the short term, Johnson’s landslide victory in 1964 opened the way for him to extend the liberal state through his “Great Society” program. Among other initiatives, Johnson privately instructed his attorney general, Nicholas Katzenbach, to draft “the goddamndest, toughest voting rights act that you can.” He still hesitated to put the power of the presidency behind the bill, though, for fear of jeopardizing other Great Society priorities, such as Medicaid and Medicare, which needed southern Democratic support.³⁴

Jimmie Lee Jackson, the civil rights worker murdered after the February 1965 voting rights march in Alabama, did not die in vain. After hearing about the killing of this young voting rights activist, civil rights leaders, who had witnessed many deaths of workers in their cause, considered dumping Jackson’s body on the doorstep of Alabama’s segregationist governor George Wallace. Instead, King organized a march for African American voting rights from the town of Selma to the city of Montgomery, Alabama. “We are going to march the length of Alabama until we can vote,” King said. Jackson “died that we can vote and we will vote.”³⁵

On March 7, 1965, voting rights marchers began their crossing of the Edmund Pettus Bridge, which spans the Alabama River in Selma and was named for a Confederate general. State troopers attacked the marchers on the bridge with nightsticks, tear gas, and police dogs, while television cameras carried these brutal images into America’s living rooms. National outrage over the violence on this “Bloody Sunday” provided the momentum needed for adoption that summer of the landmark Voting Rights Act of 1965. On March 15, 1965, just a week after Bloody Sunday, President Johnson in a televised address to a joint session of Congress called for adoption of his administration’s voting rights bill. “It is wrong—deadly wrong—to deny any of your fellow Americans the right to vote in this country,” he said. “What happened in Selma is part of a far larger movement which reaches into every section and State of America. It is the effort of American Negroes to secure for themselves the full blessings of American life.”³⁶

The counter-claims made by southern opponents of voting rights, which focused on states’ rights, federal tyranny, black inferiority, and the specter of voter fraud, showed how little had changed since Reconstruction. Senator John Stennis of Mississippi said, “We are paving the way for the destruction of self-government by the mad, emotional rush to destroy standards, whether literacy or any other, that the experience of the American people has proved not only wise, but essential in protecting the ballot box.” Senator Strom Thurmond of South Carolina argued that “the Constitution gives no one the right to vote,” and that restrictions imposed by the states do not apply “unequally to any one race or sex.” The bill, he said, “is unjustly discriminatory to the States.” Senator Spessard Holland of Florida warned that the act would result in violence directed against “the people whom it is most expected to help.” Senator Lister Hill of Alabama charged that the bill’s proponents were “usurping the rights of the States … to set voter qualifications which were clearly reserved to the States respectively.” Senator John Tower of Texas said that repeal of the poll tax in Texas would allow “unscrupulous political bosses to bloc-vote certain people,” defeating the purpose of “curing voter fraud.” Leander Perez, the influential political boss of Plaquemines Parish in Louisiana, gave the Senate a taste of old-school racism, saying that it “doesn’t understand Negroes, their thinking, their mentality.… They are of immoral character, they are a low type of citizenship.”³⁷

Senator James Eastland of Mississippi prophesied a coming apocalypse if Congress were to enact the voting rights bill: “You will unleash a chain reaction which will finally culminate in the establishment of an all-powerful, un-checked, unanswerable, supersocialist state.… When that occurs, Mr. President, the dark night of despotism will descend like a pall upon this great Nation and the rule of tyranny will pervade this land.”³⁸

As northern Democrats joined with Republicans to overcome southern Democratic opposition and pass the Voting Rights Act, it became clear that this time the opponents of voting rights were not going to prevail in Congress. In the House, the bill’s backers defeated a weakened alternative promoted by the Judiciary Committee’s ranking Republican, William McCulloch of Ohio, and Republican minority leader Gerald Ford of Michigan. In the Senate, the Johnson administration, working again with Minority Leader Dirksen, surmounted a filibuster by southern Democrats to secure final passage. Thus, African Americans gained the vote in most states of the new republic in the eighteenth century, then broadly lost it by the mid-nineteenth century. They regained voting rights in the post–Civil War Reconstruction, only to lose them again in the redemption of white supremacy, and ultimately regained the vote with passage of the Voting Rights Act of 1965. The act put a coda on the twentieth century’s version of a white citizen’s democracy in the United States, although it did not immediately or fully enfranchise nonwhites across the land. Struggles over the judicial interpretation and enforcement of the Voting Rights Act have continued through our own time.

The comprehensive and complex Voting Rights Act, which contains some 5,500 words and 19 sections, would be enforced through both direct administrative action by the U.S. Department of Justice and lawsuits that could be filed by both the Justice Department and private parties. The act banned the use of literacy tests in jurisdictions in which less than 50 percent of voting-age residents were registered as of November 1, 1964, or had voted in the 1964 presidential election. It made it a federal crime for any person or conspiracy of people, whether acting under color of law or not, to intimidate, threaten, or coerce anyone for attempting to vote. It declared that individuals could not be denied the right to vote for a lack of English proficiency if they had completed at least a sixth-grade education. It authorized the courts nationwide to suspend the use of any discriminatory test or device used by a jurisdiction as a prerequisite for voting and to appoint federal election examiners to register voters and monitor elections.³⁹

The act did not explicitly outlaw the poll tax, which the Twenty-Fourth Amendment to the U.S. Constitution had banned in 1964 for federal elections, and so five southern states continued to require poll taxes for participation in state and local elections. The act noted the finding of Congress that poll taxes abridged the right to vote and authorized the attorney general to file suit against these lingering states. In 1966, the U.S. Supreme Court reversed its 1937 precedent, ruling six to three that Virginia’s poll tax violated the Fourteenth Amendment. The Court held that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.”⁴⁰

The act included other broader and more enduring provisions. Section 2 stipulated that “no voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” Beyond prohibiting practices that deny the vote to minorities, Congress designed section 2 to assure that minorities can make their vote count by having a reasonable opportunity to participate fully in the political process and elect candidates of their choice.

Sections 4 and 5 singled out for special treatment certain “covered” jurisdictions that employed discriminatory tests or devices and had low rates of voter registration or turnout. Covered jurisdictions under the formula spelled out in section 4 included Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and forty counties in North Carolina. The attorney general could appoint registration examiners for such “covered” jurisdictions, which under the enforcement provisions of section 5 had to submit any change in voting laws or regulations to the Department of Justice for preclearance. The department had the authority to block any such change that had the purpose or effect of discriminating against minorities, with effect defined by the federal courts as a retrogression or diminution of the opportunity for minorities to participate in the political process and elect candidates of their choice. Alternatively, covered jurisdictions could seek to gain prior approval for voting changes from the federal district court of the District of Columbia, with the burden of proof placed on the state or locality. Jurisdictions could also seek a permanent “bail-out” from preclearance requirements by demonstrating an extended lack of discrimination. States that were not included under the coverage formula for section 5 could still be “bailed-in” to the preclearance process if found by the courts to have intentionally discriminated against minorities seeking to exercise their voting rights.

Echoing familiar arguments that its provisions exceeded the constitutional authority of Congress and encroached on matters reserved to the states, South Carolina led a coalition of several other southern states in promptly challenging the constitutionality of the Voting Rights Act. Such claims no longer had traction in the Supreme Court, however. After breaking with usual practice by assuming original jurisdiction over the case, a majority opinion written by Chief Justice Warren found that the act “reflects Congress’ firm intention to rid the country of racial discrimination in voting” and falls within the scope of its authority to enforce the Fifteenth Amendment. “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting,” Warren ruled. Putting a rhetorical flourish on his opinion, Warren said, “After enduring nearly a century of widespread resistance to the Fifteenth Amendment, Congress has marshalled an array of potent weapons against the evil, with authority in the Attorney General to employ them effectively.… We may finally look forward to the day when truly ‘[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.’ ”⁴¹

Congress has significantly amended the Voting Rights Act five times to extend temporary provisions and to expand its scope and impact. Congress expanded the act’s coverage formula in 1970 and banned literacy tests nationwide. In 1975, it added English-only ballots to the list of discriminatory tests and devices in jurisdictions that had at least a 5 percent single-language minority. The 1975 amendments included language minorities, defined as “persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage,” within the groups of people covered by protections of the act. Congress added a bilingual election requirement in section 203, which requires election officials in jurisdictions with large numbers of English-illiterate language minorities to provide ballots and voting information in the language of the minority group. The 1970 and 1975 amendments added to the covered jurisdictions under section 5 the states of Texas, Alaska, and Arizona; several counties in California, Florida, New York, and South Dakota; and two townships in Michigan.⁴²

The 1970 amendment also overturned the traditional voting age of twenty-one that prevailed in nearly every state. It guaranteed the right to vote in all elections for citizens who had reached the age of eighteen. Later that year, however, the Supreme Court ruled that Congress could set by law voting age qualifications for federal but not for state and local elections. Congress responded the following year by enacting the Twenty-Sixth Amendment to the Constitution, forbidding states from denying or abridging the right to vote of citizens “who are eighteen years of age or older.” The states quickly ratified the voting age amendment, which, like the Fifteenth and Nineteenth Amendments, was framed negatively in terms of what states could not do. In 1972, eighteen-year-olds voted nationwide for the first time in a presidential election.

In 1982, the U.S. Supreme Court in City of Mobile v. Bolden limited the scope of the Fourteenth Amendment and the Voting Rights Act. It ruled that to prove a violation of the amendment’s equal protection clause or section 2 of the Voting Rights Act, plaintiffs had to prove that voting laws and regulations not only had the effect of discriminating against minorities but were adopted or maintained with the intent to do so. In response, Congress amended section 2 in 1982 to ban any voting practice that had a discriminatory effect, whether or not it was enacted or maintained for a discriminatory purpose. It was only after the 1982 amendments that section 2 fully protected minorities from discriminatory practices for registration or voting. In 1992 and 2006, Congress extended provisions of the act. The 2006 amendments also strengthened the preclearance provisions of section 5. A substantial bipartisan majority in Congress backed each of these amendments.⁴³

The Voting Rights Act immediately opened the door to registration and voting by black people in the South. By July 1967, the Justice Department had assigned federal registrars to twelve counties in Alabama, three in Georgia, nine in Louisiana, and thirty-four in Mississippi. The percentage of registered blacks in these states more than doubled from 21.1 percent in 1964 to 48.5 percent in 1967. Local officials who were unwilling to risk usurpation of their functions by federal officials registered most of the new African American voters. This experience shattered the myth that federal assumption of traditionally local functions would dissuade local officials from fulfilling their responsibilities. Federal oversight was working to combat many decades of efforts to disenfranchise African Americans in the South.⁴⁴

Across the decades, section 2 litigation and section 5 objections have targeted methods of elections, annexations that diluted minority voting strength, the elimination or moving of polling places, qualifications for registration or voting, changes in the composition of legislative bodies, redistricting plans, and majority vote requirements. Most enforcement efforts have focused on “dilution” of minority voting strength through at-large elections and redistricting plans that “cracked” or “packed” minority voters. “Cracking” is the fissuring of minority communities so that they are submerged in white-dominated districts. “Packing” is the concentration of minority voters in one or a few districts well beyond what is needed to elect candidates of their choice. This results in “wasted” minority votes that could expand minority opportunities in other districts. At-large elections in which all candidates for office are elected jurisdiction-wide have a discriminatory effect if they enable a white voting majority to elect all or most candidates, overriding the preferences of minority voters. Through 2000, the Department of Justice interposed more than a thousand objections, more than 95 percent in southern states. The department issued more than half of these objections against at-large elections or redistricting plans.⁴⁵

Section 2 litigation challenged discriminatory practices across the nation. The following examples of section 2 litigation against at-large elections and discriminatory redistricting plans come from my personal experience as an expert witness. The cases involve the voting rights of the nation’s two largest minority groups, African Americans and Hispanics, and arise in different regions of the country.

In 1978, the U.S. Department of Justice returned to Dallas County, Alabama, whose county seat of Selma was the birthplace of the Voting Rights Act, to challenge the county’s at-large system for electing its county commission. African Americans and whites were about equal in voting-age population in Dallas County according to the 1980 census, but whites still led in registered voters as African Americans fought against a century of discrimination. Thirteen years after King’s march across the Pettus Bridge, Dallas County had not elected a single African American to its commission, which consisted of four members plus an ex-officio chairman empowered to break ties, all elected at-large by all county voters. Under this system, the white voting bloc majority consistently voted against any African American candidate for a commission position, shutting out black people from participation in their county government.

The city of Selma, the site of the Dallas County trial in the 1980s, was little changed from the Jim Crow era. White people held all the prestigious positions and all public offices. Black people cleaned the streets, waited tables, and scrubbed hotel rooms. They lived in an isolated enclave with unpaved roads and aging, dilapidated homes. Yet despite repeated defeats, blacks continued to mount candidates for public office in the city and county. They pressed for black representation on the board of registrars and for the appointment of black poll officials and deputy registrars. Four local African Americans—Samson Crum, Sr., Edwin Moss, Frederick D. Reese, and Clarence Williams—risked reprisals to join in the government’s suit as plaintiffs against Dallas County.⁴⁶

The Dallas County litigation dragged on for ten years, delayed by the Bolden decision on intent, the 1982 voting rights amendment, and adverse decisions from conservative white judge W. Brevard Hand, who had gained notoriety for his ruling that banned forty-four public school textbooks in Alabama because they allegedly promoted the “religion” of secular humanism. The Eleventh Circuit Court of Appeals unanimously reversed this decision.

Judge Hand’s conduct during the trial was as surreal as his rulings. He roamed through his antiquated courtroom, sometimes sitting on the radiator rather than the bench. He ruffled his hand through the hair of the Justice Department’s attorney, Gerald Hebert. When one of the department’s shorter experts appeared to testify, Judge Hand asked if he wanted some telephone books to sit on. When I appeared to testify for the Justice Department for a second time, he said, “Oh no, not Dr. Lichtman again. You’re just going to say whatever Mr. Hebert wants you to say.” During one of the trials, the judge graciously invited Hebert and myself to play golf with him at his private club. When we asked if the club had any black members and he failed to respond, we politely declined his invitation. Instead, we played at the public course, which was next to the city dump, where they happened to be burning garbage that day. The smoke was so thick that we could barely see the fairway in front of us, but with our duffer golf skills it did not make much difference. After the case closed, Judge Hand sent us framed, signed photographs of himself.

After several trips to the Eleventh Circuit, in 1988, an exasperated appeals court ordered the implementation of what they termed the “Lichtman Plan,” a plan that I had drafted to establish single-member districts for electing each of the five members of the Dallas County Commission. The plan included two clear majority-black voting districts, two clear white-majority voting districts, and one “swing” district. One white commissioner said derisively that if the court implemented this plan, “we might as well change the name of Dallas County to ‘Lichtman County,’ Alabama.” The plan was implemented, and the name of the county remained the same, but in the November 1988 election, Dallas County elected three black and two white commissioners, reflecting the new black voting majority in the county. Three decades later, in a special election held in 2017, the black voters of Dallas County were instrumental in electing Doug Jones as the first Democratic senator in Alabama since 1992.⁴⁷

This 1988 election, twenty-three years after the Pettus march, ended the all-white government that had prevailed in Dallas County for nearly ninety years. The Dallas County case exploded the theory that discrimination applied only to individuals. If so, there would have been no remedy for the exclusion of blacks from Dallas County governance, since, as individuals, blacks could register and vote. As a group, however, the ground rules of county politics barred them from effective participation in the selection of public officials. In the late twentieth century, section 2 litigation and section 5 objections eliminated many discriminatory at-large election systems across the nation.

In 1988, Latino plaintiffs and the U.S. Department of Justice filed suit against the districts drawn for supervisors of Los Angeles County, the nation’s most populous, with 8.7 million people and a budget of some $10 billion in 1990. No Hispanics in modern history had been elected to even one of the powerful supervisor positions that California politicians prized more than a seat in Congress. The suit charged that the existing board of supervisors had intentionally fragmented or cracked Hispanic communities to forestall the creation of a Hispanic-majority district and preserve the seats of incumbent white supervisors.

During a three-month trial, expert testimony established that bloc voting underlay the board’s intentional refusal to create a Hispanic opportunity district; Hispanic candidates in Los Angeles County cohesively backed Hispanic candidates who were defeated by white bloc voting in white-majority districts. Federal District Court judge David V. Kenyon, a Republican appointed by President Jimmy Carter, ruled that the districting plan had both the intent and effect of discriminating against Hispanic voters.

He found that “Hispanics are politically cohesive and that voting behavior is polarized between Hispanics and non-Hispanics.” The judge held that given such polarization, “the Supervisors appear to have acted primarily on the political instinct of self-preservation.… However, the Supervisors also intended what they know to be the likely result of their actions and a prerequisite to self-preservation—the continued fragmentation of the Hispanic core and the dilution of Hispanic voting strength.” Judge Kenyon presciently rejected the claim of the attorney for the board’s chair that “it was the Republican protecting himself or protecting his philosophical concerns and those of the ones who elected him from a change to a Democratic seat.… It was not because of a desire on anyone’s part to dilute or diffuse or to keep the Hispanic community powerless.” Kenyon ruled that “it is undeniable, however, that the Los Angeles County Board of Supervisors knew that by adopting the 1981 redistricting plan, they were further impairing the ability of Hispanics to gain representation on the Board.” Self-preservation or partisan benefit could not justify racial discrimination.⁴⁸

The Court of Appeals for the Ninth Circuit upheld the finding of intentional discrimination and ordered the imposition of a new plan with a majority-Hispanic district.⁴⁹ On January 7, 1991, the U.S. Supreme Court denied an appeal for certiorari (review of a lower court’s decision) and let stand the circuit court’s holdings. In a special election held in a court-ordered, majority-Hispanic district in February 1991, Los Angeles city councilwoman Gloria Molina became the first Hispanic elected to the County Board of Supervisors in one hundred years and the first woman to serve on the board.⁵⁰ The case set a precedent for the empowerment of the rapidly growing Hispanic electorate across the nation. According to exit polls, from 1992 to 1996 the Hispanic component of the presidential electorate rose from 2 to 5 percent, and then rose again to 11 percent in 2016.

In 2001, a three-judge federal court in New Jersey held an important trial on the packing of minority districts. Following the 2000 census, New Jersey’s independent Apportionment Commission adopted a redistricting plan for state legislative seats. The “Bartels Plan,” named after its principal author, Princeton political science professor Larry Bartels, the tie-breaking member of the commission, reduced the minority population (black and Hispanic) in several districts and increased the minority population in neighboring districts. A coalition of Republicans and civil rights organizations challenged the plan, contending that it would dilute the minority vote by spreading minority voters too thinly across districts. The seemingly odd coalition came together because many within the civil rights community had yet to realize that packed districts often created wasted minority votes, fenced in minorities within a few districts, and limited the ability of minority voters to expand the power of their votes in a larger number of districts. They joined forces with Republicans who recognized that excess Democratic votes in packed minority districts improved GOP prospects in all other districts.

The court cited testimony on behalf of the Bartels Plan that (1) packed districts were not necessary in New Jersey because minority voters could elect candidates of their choice in coalition with whites, and (2) that more dispersed districts would expand the opportunity for minorities to elect candidates of their choice to the state legislature. The court ruled that “drawing all the threads of the evidence together, we are satisfied that the Bartels plan is designed not to prevent or interfere with the election of minority representatives but rather will enhance and expand the opportunity for African Americans and Hispanics to participate in a meaningful way in the political process.” The results of the subsequent election affirmed the court’s position; no incumbent minority legislator lost his or her seat, and minorities increased their representation in the state legislature.⁵¹

Despite enactment of the Voting Rights Act and bolstered turnout in the South, nationwide voter participation declined after 1968 and remained at low levels through the 1970s and 1980s. Congress responded with legislation designed to expand access to voting and registration. In 1984, it passed the Voting Accessibility for the Elderly and Handicapped Act, which requires states to provide “a reasonable number of accessible permanent registration facilities” for elderly and handicapped voters. Two years later Congress enacted the Uniformed and Overseas Citizens Absentee Voting Act, which requires states to authorize overseas citizens and members of the military and their families to register and vote absentee in federal elections. The later Americans with Disabilities Act of 1990 expands the mandate of earlier legislation by requiring “public entities [to] ensure that people with disabilities can access and use their voting facilities.” However, a still largely unexplored realm of voting rights pertains to an unspecified number of people with mental disabilities who are denied voting rights by various laws that still exist in many states. This issue has gained attention in recent years as professionals have rethought their views on mental health.⁵²

Beginning in 1988, voting rights advocates introduced broader legislation to ease access to registration, eventually focusing on a bill dubbed “Motor Voter” that would obligate state governments to accept registration by mail for federal elections and to offer opportunities for registration upon application for a driver’s license or public assistance. It would require states to accept a federal form for registration for federal elections that required an affirmation of U.S. citizenship, under penalty of perjury, but not documentary proof. Republican senator Mitch McConnell of Kentucky led the opposition to motor voter. He disparaged concern about low voter turnout, saying, “relatively low voter turnout is a sign of a relatively content democracy,” and warned of massive voter fraud that would follow in the wake of motor voter legislation. “Perhaps the most disturbing aspect of the motor-voter bill,” he said, “is its potential to foster election fraud and thus debase the entire political process in this country.… That is why the motor-voter bill is acquiring a new nickname: auto-fraud.”⁵³

Congress enacted the motor voter bill in 1991 after overcoming a filibuster in the Senate, but President George H. W. Bush vetoed the legislation, echoing McConnell’s concerns about voter fraud. Bush wrote that “the bill would increase substantially the risk of voting fraud. It would not, however, provide sufficient authority for federal law enforcement officials to respond to any resulting increases in election crime and public corruption.” In 1993, Congress again passed and President Bill Clinton signed the legislation that became the National Voter Registration Act of 1993, known as the “Motor Voter Act.” It expanded registration opportunities but produced no discernable increase in voter fraud. Scholars, however, disagree on the law’s impact on voter turnout.⁵⁴

For minorities, the removal of barriers to minority registration and voting, section 5 objections, and litigation under section 2 of the Voting Rights Act all led to meaningful participation in policy-making through the holding of public office. African Americans’ representation in Congress rose from five in 1965 to thirty-nine in 2000, and Hispanic representation from near zero to twenty. African American representation in state legislatures rose from fewer than two hundred members in 1965 to nearly six hundred in 2000, and Hispanic representation from fewer than fifty to more than two hundred. The number of African Americans holding elected office at all levels of government rose from fewer than a thousand in 1965 to more than nine thousand in 2000, and the number of Hispanics from an unknown but likely small number in 1965 to about four thousand in 2000.⁵⁵

The Voting Rights Act and its enforcement contributed to the realization of President Johnson’s prediction that the South would turn from voting Democratic to voting Republican. In a role reversal of the post-Reconstruction era, the white South became a solidly Republican voting bloc, leaving Democrats dependent on black and Hispanic voters. This realignment culminated in the midterm elections of 1994, when the GOP picked up more than fifty House and nine Senate seats and won control of both chambers of Congress for the first time since 1954. Republicans gained a net of some five hundred state legislative seats and ten governorships.⁵⁶

The GOP achieved its first post-Reconstruction majority of southern U.S. House and Senate seats in 1994. The rise of southern Republicanism reflected class as well as racial polarities. In 2000, the American National Election Study found that 70 percent of white Protestant southerners in the top one-third of earners identified as Republicans, compared to 38 percent in the bottom one-third.⁵⁷

Realignment in the South in the late twentieth and early twenty-first centuries polarized American politics by pushing Democrats to the left and Republicans to the right. Moderate southern Democrats were replaced in the U.S. Senate by extremely conservative Republicans, like Jeff Sessions of Alabama and George Allen of Virginia, and in the U.S. House by either conservative Republicans or liberal black and Hispanic Democrats. In 2016, only two House Democrats voted more conservatively than the most liberal House Republican. On the liberal scorecard of Americans for Democratic Action, House Democrats averaged 91.1 percent, compared to 2.3 percent for their Republican counterparts. Similarly, in the Senate, only two Democrats voted more conservatively than the most liberal Senate Republican. Senate Democrats averaged 88.8 percent in Americans for Democratic Action scores, compared to 6.7 percent for Republicans.⁵⁸

The confirmation of this southern realignment in voting came with the contested presidential election of 2000, the first contest since 1888 in which the popular and Electoral College votes diverged. Its outcome ultimately turned on disparities in the counting of ballots cast by black voters as compared to other voters in the pivotal state of Florida. With George W. Bush’s narrow 537-vote victory in Florida, the Republican candidate prevailed in every southern and border state.⁵⁹

The questions of minority voting rights and representation, which the Voting Rights Act had seemingly settled in the United States, arose again during the new voting war of the twenty-first century. The war began with skirmishes after the contested presidential election of 2000. It escalated into full-scale battles after the election of Barack Obama in 2008. Democrats and Republicans have changed sides since the nineteenth century, and maneuvers to restrict the vote are subtler and more refined than ever before, but the partisan spoils of war have changed little. In a nation with no constitutional guarantee of the vote, this fundamental right of democratic government remains bitterly contested, with old arguments about voter fraud used to justify new restrictions on the franchise.