JOHN LEWIS WAS NOT A MAN WHO COULD BE EASILY SHOCKED, BUT DURING the inaugural weekend of 2009 he found everything “bewildering.” “It’s almost too much,” he told the New Yorker’s David Remnick, “too emotional,” too unreal. The idea that an African American would be elected president in his lifetime struck Lewis as simply “crazy.” As January 20 approached, so many memories assaulted him: the sit-ins, the Freedom Rides, the arrests, the beatings (none of them worse than those he received on Bloody Sunday), and the final triumphant march to Montgomery. But it was the Edmund Pettus Bridge that stood out in Lewis’s mind during the preinaugural festivities. Barack Obama, who was about to become president of the United States, “is what comes at the end of that bridge in Selma,” he told Remnick.1
Obama’s unprecedented election gave rise to the hope that America had become a postracial society—a hope that led many, including John Roberts, the chief justice of the US Supreme Court, to wonder if perhaps the Voting Rights Act had outlived its usefulness. On June 22, 2009, the Supreme Court issued its ruling in Northwest Austin Municipal Utility District Number One v. Holder. By a vote of eight to one, the justices favored the plaintiff on technical grounds, broadening the definition of what constituted a “political subdivision” under the law, thus allowing the municipal district to take advantage of the law’s bailout provision. But the ruling left Section 5 intact, avoiding a major decision that would have severely weakened the Act. Chief Justice Roberts expressed the post-Obama conventional wisdom: “We are now a very different nation,” he said. “Things have changed in the South. Voter turnout and registration rates approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. Whether conditions continue to justify such legislation,” he concluded, “is a difficult constitutional question we do not answer today.” Justice Clarence Thomas, the sole dissenter, believed that Section 5 was unconstitutional and recommended its elimination.2
Both liberals and conservatives claimed victory. “This case was brought to tear the heart out of the Voting Rights Act,” argued the NAACP’s Debo P. Adegbile, “and today that effort failed.” But Hans A. von Spakovsky, a former member of the Civil Rights Division whose advocacy of voter ID laws made him a controversial figure, expressed his support for Chief Justice Roberts’s view that Section 5 “raises serious constitutional concerns” in an article written for the National Review. He also looked forward to more lawsuits, one of which, he anticipated, would undoubtedly lead to the elimination of the hated provision.3
The question for many Americans was whether the chief justice was correct in asserting that America was “now a very different nation” in the Age of Obama. Even before Obama’s election there was evidence to support the view that race was no longer a relevant factor in American political life. In 1965 there were only five black members in Congress; in 2011 there were forty-four. In 1965 there were approximately fourteen hundred black officeholders in America; in December 2009 there were ten thousand. Among them were many elected from white-majority districts or states, including those in the South. In all, about two hundred black Americans have been elected to offices once held by whites in New Hampshire, Iowa, Kentucky, Minnesota, Missouri, North Carolina, and Tennessee—all white-majority states.4
A 2009 survey of seven southern states originally covered by Section 5 as well as two, Texas and Florida, added in 1975 also reveals significant improvement in the political status of African Americans. Whether one looks at Mississippi, where in 2009 more African Americans held public office than in any other state, or at Georgia, which that year had four African Americans in Congress and fifty-five in its statehouse, or Texas and Florida, where large numbers of blacks and Latinos serve in their legislatures, it seems beyond dispute that America is a changed nation.5
But the nation is not as different as it may seem. History reveals that improved conditions come less from a revolution in white attitudes toward African Americans than from the Act’s effectiveness in altering electoral conditions that had prevented blacks from winning elections. In other words, if the Act had never existed, there is no guarantee that Mississippi would have so many black public officials or, for that matter, any at all. Furthermore, although the Voting Rights Act has given black citizens the opportunity to enter the American political arena, their prospects are still limited. In towns and cities they can become county commissioners, sheriffs, tax assessors, mayors, and congress-persons. But statewide offices, especially in the South, still seem reserved for whites only. Occasionally, there has been a breakthrough—Douglas Wilder was narrowly elected governor of Virginia in 1969 but, because of term limits, served just one term. No other southern state has sent a black man or woman to its governor’s mansion since Reconstruction. The North and West have not done much better. Deval Patrick, a former assistant attorney general for civil rights under President Bill Clinton, was comfortably elected governor of Massachusetts in 2006 and reelected in 2010. David Patterson succeeded to the governorship of New York State after Elliot Spitzer resigned in 2008, but he withdrew from the next gubernatorial race because of scandals and personal problems. To be sure, other people of color—Hispanic Americans (Governor Bill Richardson of New Mexico), Indian Americans (Governors Bobby Jindal of Louisiana and Nikki Haley of South Carolina), and Asian Americans (Governor Gary Locke of Washington State) have won statewide office, but their successes have not opened any doors for black politicians.6
Some federal offices also still seem off-limits to black candidates. African Americans have been able to win seats in the US House of Representatives, but only three have been elected to the US Senate since Reconstruction. Massachusetts’s Edward Brooke served two terms after his election in 1966 but was defeated in 1980. Illinois’s Carole Moseley-Braun won in 1992 but lost in 1998. A brief presidential campaign in 2004 was a dismal failure. That same year Illinois sent state senator Barack Obama to the US Senate, and when he resigned in 2008 after assuming the presidency, his elected successor, a Republican, returned the upper chamber to its all-white status.7
And ironically it was Obama’s election itself that indicated that race, for many, remained a divisive issue. If southern racial attitudes had been transformed since 1965, Obama should have done well in the covered states in 2008. He did not. In Alabama he received 10 percent of the white vote, his worst showing anywhere in the country. Next was Mississippi, where only 11 percent of white voters chose Obama. Louisiana was third worst: 14 percent of the white population voted for him. In these three states Senator John Kerry, the 2004 Democratic presidential nominee, fared better than Obama by 9 percent in Alabama, 3 percent in Mississippi, and, in Louisiana, 10 percent. Obama won 23 percent of the white vote in Georgia and 26 percent in both South Carolina and Texas. North Carolina, now only partially covered, gave Obama 35 percent, and Virginia gave Obama 39 percent.8
These figures indicate that the racial polarization that has long characterized political life in the covered southern states still existed in 2008, especially when compared with Obama’s showing among minorities. In Alabama, Mississippi, Georgia, and Texas, Obama won an incredible 98 percent of the black vote, whereas in Virginia and North Carolina, he scored 92 and 95 percent, respectively. Obama also did well with Latinos in the covered states (62 percent), noncovered states with some covered districts (68 percent), and states not directly affected by the Voting Rights Act (71 percent). The gulf separating southern white and minority voters was greater than ever before. Virginia was the only completely covered state that Obama won.9
A similar gulf existed between white voters in the covered and noncovered states. In the latter Obama received 47 percent of the white vote, a bit better than Kerry had in 2004, but more than 20 percent greater than in the covered states of the South. Although Obama’s showing among white voters outside the South is encouraging, he won a majority of their vote only in eighteen states and the District of Columbia. Without an increase in minority turnout and decline in white participation (both of which characterized the 2008 election), Obama probably would have lost even though the conditions—an unpopular incumbent, a sinking economy, high unemployment, and two wars—favored the Democratic nominee.
Furthermore, scholars who examined the 2008 electoral results and other polling found that racial prejudice remained a significant factor in American life. Seth Stephens-Davidowitz, a Harvard doctoral candidate in economics, studied how often people searched the Internet for “racially charged material,” principally jokes that denigrated African Americans. He found that most searches originated in places where Obama did poorly in 2008. He concluded that racial prejudice cost Obama “3 to 5 percentage points of the popular vote,” essentially giving his white opponent “the equivalent of a home state advantage nationally.” Michel Tessler, a political scientist, and David Walsh, a psychologist, agreed: they found “that public opinion and voting behavior [in 2008] . . . were considerably more polarized by racial attitudes than at any other time on record.” The conclusion is inescapable: at the time of the 2008 election America was still a racially divided country, and the results of that election and the next one to come in 2010 indicated that the Voting Rights Act remained indispensable. Only because of the Act’s protections could voters of all racial backgrounds be assured of casting their vote and, as a result, be able to level the political playing field.10
Just when it seemed that the democratic process had reached its apotheosis with the election of America’s first black president, a political earthquake occurred in 2010 that threatened all that had been accomplished since 1965. Two years after Obama’s election the midterm elections saw a conservative backlash that swept Republicans back into office in droves. As the media focused on the Republican takeover of the House of Representatives and increases in the Senate, more important developments were occurring closer to home. Republicans now controlled both legislative bodies in twenty-six states, and twenty-three won the trifecta: controlling the governorships as well as both statehouses. What happened next was so swift that it caught most observers off guard—and began surreptitiously to reverse the last half-century of voting rights reforms.
All across the country following the 2010 midterms Republican legislatures passed and governors enacted a series of laws designed to make voting more difficult for Obama’s constituency—minorities, especially the growing Hispanic community; the poor; students; and the elderly or handicapped. These included the creation of voter photo ID laws, measures affecting registration and early voting, and, in Iowa and Florida, laws to prevent ex-felons from exercising their franchise. (Florida’s governor, in secret, reversed the policies of his Republican predecessors Jeb Bush and Charlie Crist, policies that would have permitted one hundred thousand former felons, predominantly black and Hispanic, to vote in 2012.) Democrats were stunned. “There has never been in my lifetime, since we got rid of the poll tax and all the Jim Crow burdens in voting the determined effort to limit the franchise that we see today,” said President Bill Clinton in July 2011. Once again the voting rights of American minorities were in peril.11
The newly elected Republican officials were able to act so quickly because they had the help of an ultraconservative organization known as the American Legislative Exchange Council (ALEC). Its founder was the late Paul Weyrich, a legendary conservative writer and proselytizer who founded both ALEC and the Heritage Foundation, a conservative think tank dedicated to limited government, an economy free of federal regulations, and the sanctity of traditional marriage. Backed by conservative corporations such as Coca-Cola, Philip Morris, AT&T, Exxon Mobil, and Walmart, among many others, and funded by right-wing billionaires Richard Mellon Scaife, the Coors family, and David and Charles Koch, ALEC provided services for like-minded legislators and lobbyists. ALEC wrote bills and created the campaigns to pass them. Its spokesmen boasted “that each year more than 1,000 bills based on its models are introduced in state legislatures, and that approximately 17% of those bills become law.”12
High on ALEC’s agenda were voter identification laws, which it hoped would have the effect of undercutting Obama’s support base so that conservative politicians who supported ALEC’s goals could be elected. Speaking to a convention of evangelicals in 1980, Paul Weyrich said, “Many of our Christians . . . want everybody to vote. I don’t want everybody to vote. . . . As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.” Weyrich believed that America was suffering from what he called “a plague of unlawful voting” that the new laws would combat.13
But according to the best analyses, there was almost no evidence of illegal voting. Wisconsin’s attorney general, a Republican, examined the 2008 election returns and discovered that out of three million votes cast, just twenty were found to be illegal. A wider study conducted by the Bush Justice Department had found similar results for the period 2002 to 2007. More than three hundred million people had voted, and only eighty-six were found guilty of voter fraud, and most of them were simply mistaken about their eligibility. “There is no evidence of widespread or systemic voter fraud occurring in the United States in recent history,” reports Robert Brandon, founder and president of the nonpartisan Fair Elections Legal Network.14
Nevertheless, the Bush administration and Republicans, believing in the existence of widespread voter fraud, generally made its elimination a top priority. In 2007 the Bush Justice Department fired seven US attorneys supposedly for failing to prosecute cases of voter fraud that the attorneys claimed did not exist. To combat voter fraud, ALEC proposed a state voter ID for those citizens who lacked a driver’s license or other means of identification that had once been acceptable, like a Social Security card. Among the many young politicians ALEC nurtured was Scott Walker, a future governor of Wisconsin, as well as both statehouse leaders. Walker was a faithful attendant at ALEC conventions since 1993, when he was a state legislator. So were the Fitzgerald brothers: Scott, the Senate majority leader, and Jeff, Speaker of the Assembly, along with many other legislators.
Wisconsin’s voter photo ID law was one of the first pieces of legislation the new governor signed into law in 2011, and it became a model many other states followed. It required that potential voters show a current or expired driver’s license, or some form of military identification, or a US passport, or a signed and dated student ID from an accredited state college or university, or a recent certificate of nationalization. If voters had none of these documents, they could present a birth certificate to receive a special photo ID issued by the Wisconsin Department of Transportation. Such requirements made voting extremely arduous for the very people who disproportionately supported Barack Obama in 2008, such as racial minorities, students, and the elderly.15
Among those who found complying with the new law difficult was Gladys Butterfield, who had voted in every local, state, and presidential election since 1932. She had stopped driving decades ago, so she had no license. Her birth certificate was also missing. She did have a baptismal record, but that document was not acceptable as proof of identity in her home state. Therefore, under Wisconsin’s new law, she had to obtain a special government ID available only at an office of the Department of Transportation (DOT) before she could vote in the next presidential election. She was wheelchair bound so was dependent on a family member to drive her to the nearest DOT office. (She could not apply online because she lacked a current license.) A quarter of the offices were open only one day a month and closed on weekends. Sauk City’s office was perhaps the hardest to visit; in 2012 it was open only four days that entire year. Many other states’ DOT offices posed similar problems: odd schedules, distance from public transportation, and the like.16
With her daughter Gail’s help, Butterfield applied for a state-certified birth certificate, costing twenty dollars, which she could show as proof of American citizenship. Next she had to visit the DOT. Transporting a wheelchair was a problem as was the inevitable wait in line to fill out the forms and have her picture taken. She was charged $28 because she did not know that it would not have cost her a cent if she had explicitly requested a free voter ID. DOT officials were instructed not to offer applicants a free ID unless applicants requested one. (When an outraged government employee e-mailed friends of the news and encouraged them to “TELL ANYONE YOU KNOW!! ANYONE!! EVEN IF THEY DON’T NEED THE FREE ID, THEY MAY KNOW SOMEONE THAT DOES!!,” he was abruptly fired for “inappropriately using work email,” said an official.) “My mother is fortunate that she has someone to take her through this vote suppression procedure,” Gail Butterfield Bloom told a journalist in 2011. “How many elderly or disabled residents do not? Are Scott Walker and his followers making it difficult for the elderly, disabled, poor and young to vote? My mother thinks so.” So too, perhaps, did the 178,000 other Wisconsin seniors who did not have a driver’s license or a state photo ID. They would have to go through similar efforts to exercise their constitutional rights.17
Like the elderly, students who wanted to vote in the next election would find new obstacles when they again tried to vote in Wisconsin and many other states. Under Wisconsin’s new law student IDs would be accepted as proof of identity only if they contained a signature and an expiration date. But in 2011 the cards carried by Wisconsin’s 182,000 students were not signed or dated and, therefore, would not be accepted at the polls. Some colleges hurriedly tried to manufacture an acceptable card at a cost of $1.1 million. South Carolina, Tennessee, and Texas would not accept any student ID whatsoever (although in the Lone Star State a concealed handgun license would suffice). New Hampshire’s effort to limit student voting pleased William O’Brien, the Speaker of the Republican-dominated House, who, while speaking at a Tea Party function, called students “foolish” because they lacked “life experience [and] just vote their feelings.” They voted, he said, “as a liberal. . . . [T]hat’s what kids do.”18
Before the Republican victory in the 2010 midterms only two states had rigorous voter ID requirements. By August 2012 thirty-four state legislatures had considered photo ID laws and thirteen had passed them; five more made it past state legislatures only to be vetoed by the Democratic governors of Montana, Minnesota, Missouri, North Carolina, and New Hampshire. By that same summer a number of states already had the new laws in place: Pennsylvania (where it was estimated that 9.2 percent of registered voters had no photo ID), Alabama, Mississippi (approved by referendum), Rhode Island, New Hampshire (whose state General Court overrode the governor’s veto), and five whose sponsors were all ALEC members—Kansas, South Carolina, Tennessee, Texas, and Wisconsin. In Alabama, Kansas, and Tennessee people wishing to register or vote must show their birth certificate. To acquire that document they must pay a fee, which many believe is the equivalent of the poll tax, banned by the Constitution’s Twenty-Fourth Amendment. Minnesota’s citizens would vote on a state constitutional amendment in the 2012 election; if passed, voters could cast their ballot after showing a government-issued photo ID.
What these policies had in common, beside their connection to ALEC, was their negative impact on minorities. The nonpartisan Brennan Center for Justice at New York University’s Law School estimated in October 2011 that the new voter ID laws could affect more than twenty-one million potential voters, predominately African Americans, Hispanics, students, the elderly, and the poor.19
Other voting laws passed in the wake of the 2010 midterms were just as injurious as the voter ID laws and threatened not merely minorities but also people likely to vote for Democratic candidates. Florida’s new voter law turned Jill Cicciarelli, a thirty-five-year-old civics teacher, into a criminal. She inadvertently ran afoul of H.B.1355, which tightened the state’s already strict regulations governing the registration of new voters. The 158-page bill became law twenty-four hours after it passed because Governor Rick Scott considered it essential to combat “an immediate danger to the public health, safety or welfare.” Cicciarelli, who taught government and sponsored the Student Government Association at New Symrna Beach High School, was on maternity leave when the law went into effect in July 2011, so when she returned to school that fall she was unaware that she was about to commit a crime. In her senior government class she discussed the 2012 presidential election and, as she had many times before, organized a campaign to preregister those students who would turn eighteen before November. Eventually fifty students applied, and after a few days she sent the forms to the county election office. “I just want them to be participating in our democracy,” she said later. “The more participation we have, the stronger our democracy will be.”
The new law required that third-party registration organizations must register with the state election office, receive an identification number, undergo training, and turn in their application forms no later than forty-eight hours after their completion. (Previously registration was voluntary and the completion deadline was ten days, but it was rarely enforced.) Cicciarelli violated each of the new provisions and could be fined up to $1,000 for missing the due date and an additional $1,000 for failing to register. When Ann McFall, Volusia County Supervisor of Elections, learned of Cicciarelli’s infractions in late October, she reluctantly alerted the secretary of state’s office that the teacher had violated the new law’s requirements, potentially a third-degree felony if investigators determined that she was guilty of “willful noncompliance.” “I was sick to my stomach when I did it,” McFall later told a reporter, “but my job was on the line if I ignored it.”20
The local press learned about Cicciarelli, the alleged felonious teacher, and sent reporters to interview her. The Daytona Beach News-Journal thought her story important enough to run on the paper’s front page. Among its readers that Sunday morning was Florida senator Bill Nelson, a Democrat. He was appalled by what had happened and, after meeting with Cicciarelli and her students, urged US attorney general Eric Holder and Illinois senator Richard Durban, chair of the Judiciary Committee’s Subcommittee on the Constitution, to investigate whether Florida’s new law and others like it had been coordinated to suppress voter turnout. He found an unlikely ally in Ann McFall, the official who had turned in Cicciarelli and who subsequently wrote an editorial for the the Daytona Beach News-Journal calling the new law “egregious” and “unenforceable.” The story went national when she appeared on MSNBC’s Rachel Maddow Show. “I did catch some flak from the Division of Elections for speaking out,” McFall later admitted. “It’s bizarre. I haven’t found one person who likes this law.”21
Republican state representative Dorothy Hulkill, running for reelection in 2012, was one person who liked the Florida law. She believed it would limit voter fraud and stop people from “engaging in shady activities designed to give Democrats an unfair advantage.” Who these people were, she did not say. McFall, also a Republican, responded quickly to defuse Hulkill’s comments. “This is a partisan piece of legislation,” she said. “It’s not done to stop fraud. If someone was trying to register more than once, or register a bogus person, our system would catch it.” A spokesman for the secretary of state announced that there was no plan to forward the Cicciarelli case to the attorney general for prosecution. Because this was her first offense, she would probably just receive a warning.22
The controversy over Florida’s new voting law did not stop there, however. Soon five other teachers were accused of similar infractions. The entire group was dubbed the “Subversive Six” by an Internet blogger who had tired of criticizing the Florida schools’ traditional preoccupations, evolution and sex education.23
By targeting a wide swath of American voters not because of race but rather because of their political sympathies, the legislators in these states had struck a serious blow to the suffrage of hundreds of thousands of citizens, all in ways that the creators of the Voting Rights Act had never imagined. Because of Florida’s new law, the state chapter of the League of Women Voters announced that for the first time in seventy-two years, it would not register new voters in 2012. That time-honored job had become too risky. “It would . . . require our volunteers to have an attorney on one side and administrative assistant on the other,” said League chapter president Diedre Macnab. She called the law “a war on voters.” Other organizations like Rock the Vote, which registered 2.5 million new voters in 2008, and the Florida Public Interest Research Education Fund also ended their activities. It was not only the young who responded to such registrations drives and who now found a well-traveled route to the polls blocked: census figures indicated that in 2004 10 million new voters, among them many African Americans and Hispanics, registered with the help of community-based groups. Under the new voting laws many of these men and women would likely never make it to a voting booth.24
Some of these new efforts to restrict voters’ access to the polls exposed significant racial biases on the part of the Republicans responsible for them. Colorado, Iowa, and Florida compiled lists of registered voters they thought ineligible and attempted to remove them from the voting rolls. Florida officials determined that 180,000 citizens were suspect; 74 percent of them were African American and Hispanic, groups more likely to be Democrats than Republicans. Governor Rick Scott became so concerned that illegal aliens could vote that he demanded access to the Department of Homeland Security’s database, and they eventually granted his request. The Florida secretary of state found that thousands of registered voters could be considered “potential noncitizens” and removed them from the voting rolls. Further examination by more objective analysts concluded that significant errors had occurred: only 207 of the suspect 180,000 voters were judged unqualified. Among those caught in the net were elderly World War II veterans and many other longtime American citizens whose only offenses, in many instances, were being nonwhite. Florida’s election supervisors refused to follow the governor’s orders and stopped purging voters from the rolls. Nevertheless, Republican-dominated Lee and Collier Counties continued to remove those they considered suspicious. And on July 17, 2012, Homeland Security finally granted Florida officials the right to check the department’s databases. “Our antennae are way up,” declared the president of the Florida League of Women Voters, Debra McNab. “We will be watching very, very carefully to make sure that eligible voters are not removed from Florida voting lists.”25
Florida’s attempt at voter purging was not a new phenomenon. A more informal practice known as “caging” had been used mostly by Republican campaign officials for decades throughout America. It was simple: letters marked nonforwardable were sent to black citizens and those that came back unopened resulted in the addressee being removed from the voting lists. No less than the Republican National Committee was found guilty of caging in the 1980s, and a federal decree ordered them to desist at once, although Republicans still employed it decades later.26
Some states also attempted to suppress minority voting by curtailing early voting, which had avoided problems such as crowded polling places and voting machinery that often broke down from overuse. Early voting meant that more people could be accommodated over a longer period of time in, for example, Cleveland, Akron, Columbus, and Toledo, Ohio, cities with a heavy concentration of pro-Democratic black voters and a scarcity of voting machines. In the two years following the 2010 midterms, Georgia, Maine, Tennessee, West Virginia, Ohio, Florida, and Wisconsin all passed laws shortening the period during which citizens could cast their ballots. Ohio and Florida also eliminated voting on the Sunday before the election. This especially could have a profound impact on future minority voting. In 2008 54 percent of African Americans voted early, many on that Sunday, when churches held “Get Your Souls to the Polls” campaigns that brought blacks and Hispanics to the voting booths. Obama won Florida with 51 percent of the vote in 2008. In Ohio, another narrow victory for Obama, 30 percent of the state’s total voters, 1.4 million people, voted during the early period, which was then thirty-five days before the election. Under each state’s new law passed in 2011, it was shortened to sixteen days. Furthermore, people could vote only between 8 a.m. and 5 p.m., when many minorities as well as whites were at work. Because the Voting Rights Act covers five of Florida’s sixty-seven counties—Hillsborough, Monroe, Collier, Hendry, and Hardell—voting officials had to submit their changes for preclearance. On August 17, 2012, a three-judge federal panel rejected their request on the grounds that the changes would discriminate against African Americans, who habitually vote early. The decision did not affect Florida’s other sixty-two counties.27
Voters in Maine were so incensed that the new law had eliminated election day registration that a coalition of progressive organizations quickly collected seventy thousand signatures, enough to trigger the state’s “People’s Veto,” putting the measure to a vote. On November 8, 2011, the law was repealed in a special election: “Maine voters sent a clear message: No one will be denied a right to vote,” noted Shenna Bellows, head of the state’s ACLU.28
Although Republicans continued to insist that the new laws were created solely to fight voter fraud, GOP officials twice revealed another motive. At a meeting of the Pennsylvania Republican State Committee in June 2012, Mike Turzai, the House majority leader, boasted openly that Pennsylvania’s new law would affect the next presidential election. Proudly listing the GOP’s achievements, Turzai said, “Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania: Done.” Similarly, when, in August 2012, the Columbia Dispatch asked Doug Preise, a prominent Republican official and adviser to the state’s governor, why he so strongly supported curtailing early voting in Ohio, Preise admitted, “I really actually feel that we shouldn’t contort the voting process to accommodate the urban—read African American—voter turn-out machine.” These admissions indicate that winning the presidency by suppressing the minority vote was the real reason behind the laws requiring voter IDs, limited voting hours, obstructed registration, and the like that Republican legislatures passed since the party’s victory in 2010.29
Voter ID and similar laws tested voting rights’ advocates as nothing had since the fight to extend the Act when Ronald Reagan was president. But in the twenty-first century, as in the twentieth, defenders of American suffrage were up to the challenge. The American Civil Liberties Union and the Lawyers Committee for Civil Rights Under Law, among others, filed lawsuits on behalf of minority voters affected by the new laws, and there were several important victories in 2012. They were successful in Wisconsin, the first state to pass such laws since the 2010 election. There, in October 2011, lawyers for the League of Women Voters argued that the new voter ID law violated the state’s constitution, which barred from voting only those younger than eighteen, felons, and people judged “incompetent.” The governor and state legislature could not on their own create a new class who could not vote—those who lacked a voter ID. In March 2012 Dane County circuit judge Richard Niess ruled in their favor. “A government that undermines the very foundations of its existence—the people’s inherent, pre-constitutional right to vote,” declared Judge Niess, “imperils its legitimacy as a government by the people, for the people, and especially of the people.” In July 2012 a second Wisconsin judge, David Flanagan, also ruled that the law placed “an unconstitutional burden on the right to vote,” and issued an injunction ordering the state to stop enforcing the voter ID requirement.30
Lawyers for the League of Women Voters won a second victory on May 31, 2012, when a Florida federal judge issued a temporary injunction that forbid state election officials from applying that part of the new law that obstructed the efforts of the League and Rock the Vote from registering new voters. “We’re going to dust off our clip boards and pick up the forms and [get] into the business of registering people to vote,” said Darden Race, president of the St. Petersburg chapter, on June 6, 2012.31
Judge Robert L. Hinckle’s decision led to a similar action in Texas where, on August 2, 2012, US District Court judge Greg Costa ruled that the state had not produced sufficient evidence to prove that the restrictions on registration would solve the problem of voter fraud, and because of this, he struck down the new provisions and issued a preliminary injunction barring their use. “Texas now imposes more burdensome regulations on those engaging in third-party voter registration than the vast majority of, if not all, other states,” Judge Costa noted in his ninety-six-page opinion. Texas state election officials immediately asked the judge to stay his injunction, but on August 14 Judge Costa denied their motion. “These drives are important to reaching millions of Texans, including three-quarters of a million African-Americans and 2 million Latinos, who are eligible but still not registered to vote,” declared Chad Dunn, the attorney for Voting for America and Project Vote, who filed the lawsuit.32
On August 31, 2012, an Ohio federal judge restored early voting in the days prior to the 2012 presidential election, a time when almost one hundred thousand Buckeye State voters cast ballots in 2008. And in September the Pennsylvania State Supreme Court “sharply rebuked a lower court’s approval of the law,” noted journalist Elizabeth Drew, and asked Commonwealth court judge Robert Simpson “to block the law if it can’t be implemented without disenfranchising voters.” A few weeks later, on October 2, Judge Simpson ruled that Pennsylvania officials had not made enough progress in seeing that potential voters had the necessary ID card, and, therefore, he issued a temporary injunction barring their use in 2012. But the judge, who had previously called the ID “reasonable,” also announced that he would convene a new trial to examine the issue in 2013.33
There were also efforts at the federal level to protect minority voting rights. Eric Holder, the first African American attorney general of the United States, promised to strictly enforce the Voting Rights Act and to use its power to thwart any efforts to subvert it. Per the preclearance requirement in Section 5 of the Act, South Carolina and Texas—both covered states—submitted their new voting laws to the Justice Department, which rejected both states’ new legislation on December 23, 2011, and March 12, 2012, respectively.
As the presidential election approached, voter suppression efforts had been successfully blocked in Texas, Wisconsin, Florida, Ohio, and, temporarily, in Pennsylvania. Only Kansas, Indiana, Georgia, and Tennessee were left with rigid voter ID requirements, states not expected to be critical in the 2012 presidential election. Nevertheless, it was likely that one or more of these cases would eventually make its way through the appeals process and be heard by an unsympathetic Supreme Court. This is exactly what occurred in April 2008, when the Supreme Court upheld Indiana’s two-year-old voter ID law, and in 2009, when the Court expressed its skepticism about the continued need for Section 5 in Northwest Austin Municipal Utility District Number One v. Holder.
Voter suppression laws like ID requirements and registration-drive bans offer yet another example of the crucial importance of the Voting Rights Act, but they also reveal its shortcomings. Although the preclearance provision in Section 5 has proven crucial for protecting voting rights, it covers only nine states completely—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—as well as counties in California, Florida, New York, North Carolina, and South Dakota as well as townships in Michigan and New Hampshire. It does nothing to protect the rights of minority voters in a number of states like Pennsylvania that have a troubling history of racial conflict but that are not covered by Section 5. If the Supreme Court succeeds in scaling back the advances that the Act has made, then there may also be places where American citizens never have a chance to enjoy the full extent of its benefits in the first place.34
IT IS MERCIFUL, PERHAPS, THAT SO MANY IN THE NONVIOLENT ARMY assaulted on the Edmund Pettus Bridge in 1965 did not live to see their cause threatened once again. Hosea Williams, winner of the coin toss that brought him to the confrontation with Major Cloud, died from cancer in 2000. Albert Turner, the movement’s leader in Perry County, died of heart failure that same year. Marie Foster, whose clinics had prepared would-be voters for registration, died in 2003. Pancreatic cancer killed Jim Bevel in 2008, one year after his conviction on incest charges overshadowed all the good he had done as architect of the Birmingham and Selma campaigns.
Amelia Platts Boynton Robinson lived to celebrate her 101st birthday, but an association with political extremist Lyndon LaRouche tarnished her reputation. Bernard Lafayette was still active, teaching at Emory University and building nonviolence centers in America and abroad. Obama’s election, he believed, “embodied King’s principles of reaching out to one’s enemies and seeking reconciliation.”35
It was perhaps a blessing that ex-sheriff Jim Clark, for his part, did not live to see an African American president. In the decades after Bloody Sunday he remained an unrepentant racist. Chuck Bonner, one of Bernard Lafayette’s young Selma acolytes who went on to become a lawyer in northern California, thought it might be interesting to see the former sheriff during a visit to Selma in 2005. He found him in Elba, Alabama, living in a nursing home. Confined to a wheelchair after a series of strokes and heart surgery left him an invalid, the eighty-two-year-old Clark was no longer the menacing figure he once was. In fact, he had never recovered after his defeat for sheriff in 1966. Almost unemployable, he and six other men were convicted of drug trafficking in the 1970s. Clark was sentenced to two years in a federal penitentiary and served nine months. His wife divorced him in 1980. He sold mobile homes until his health failed. Bonner asked him if he felt like apologizing for what he had done to Selma’s blacks in the 1960s. “No,” he said. “I was just doing my job and upholding the law.”
Up until the very end of his life Clark refused to accept the changes that had overcome the country or to make peace with the civil rights movements’ soldiers, past and present, who had made those transformations possible. To a Montgomery journalist in 2006 Clark said that Martin Luther King was “a liar” who “made sure he was nowhere around if there was a chance he might get hurt.” The “bridge deal” that almost killed the marchers never really happened the way the media portrayed it, he claimed. “They all came and just flopped down . . . but they weren’t knocked down.” He’d done nothing wrong that day or ever, he insisted. It was Clark’s last interview. He died on June 4, 2007.36
To have to fight for the right to vote all over again was intensely painful for Congressman John Lewis, the last surviving leader from the group of marchers who had been assaulted on Bloody Sunday, but he quickly joined the struggle against a new generation of politicians trying to return America to a darker time. Not long after Wisconsin passed its voter ID law in May 2011, Lewis addressed a nearly empty House chamber. “Mr. Speaker,” he said, “Voting Rights are under attack in America by a deliberate and systematic attempt to prevent millions of elderly voters, young voters, students [and] minority and low-income voters from exercising their constitutional right to engage in the Democratic process.” His voiced choked with emotion. He called voter IDs a poll tax, just like the one he fought against in the 1960s: “People who are already struggling to pay for basic necessities, cannot afford a voter ID.” Voting must be made “simple, easy, and convenient.”
Lewis departed from his text to speak of what he saw in the ’60s—the long lines of registrants who waited patiently in summer and winter, the hostile clerks asking how many bubbles were in a bar of soap, how many jelly beans in a jar. “The history of the right to vote in America,” he reminded his tiny audience, “is a history of conflict, of struggle, for that right. Many people died trying to [obtain] that right. I was beaten and jailed because I stood up for it. For millions like me, the struggle . . . is not mere history, it is experience. . . . We must not step backward.”
For a moment it seemed like he was in Brown Chapel again, standing in a muddy raincoat, his head bleeding. “We must fight back,” he cried. “We must speak up and speak out. We must never go back.” Forever a movement man, Lewis understood how long it would take to achieve a multiracial society: “Our struggle is not a struggle that lasts one day, or one week, or one month, or one session of Congress, or one presidential term. Our struggle is the struggle of a lifetime.”37
It was not just the struggle of one man’s lifetime or even one race’s but rather that of our nation as well. “Voter suppression” is as American as cherry pie and was often used to prevent immigrants from voting in both the nineteenth and twentieth centuries. New York officials attempted to prevent Jews from voting in 1908 by making Saturdays and even Jewish high holidays registration days. Also among the disenfranchised were New Jersey women who owned property and were allowed to vote until the state constitution limited the suffrage to “free white male citizen(s)” in 1807 as well as impoverished white men who had lost the property that once qualified them to vote. But the African American experience was unique: they were the only people to be first denied the right to vote, then, during Reconstruction, to receive it only to have it taken away again shortly thereafter. Although they won it yet again in 1965, it is perhaps not surprising that their achievement should again be endangered.38
February 15, 2011. President Barack Obama gives Congressman John Lewis (D-GA) the Medal of Freedom, America’s highest civilian honor. Later Lewis tells reporters, “If somebody told me one day I would be standing in the White House and an African American president presenting me the Medal of Freedom, I would have said, ‘Are you crazy?’” © RON SACHS/CNP/CORBIS
America’s racial problems have endured and are likely to intensify as the country’s population grows more diverse and the white majority continues to decline. As John Lewis notes, the history of the African American experience and that of the Voting Rights Act is one of continuing struggle, of reform and reaction, advance and retreat. Therefore, the Voting Rights Act remains in some form an essential tool for maintaining American democracy. “The power of the ballot we need in sheer self-defense,” the scholar-activist W. E. B. Du Bois wrote in 1902, “else what shall save us from a second slavery?” Protecting that ballot requires the courage and determination to fight for the gains that the extraordinary generations who came before us paid for in blood. Without a similar commitment today and tomorrow, history may well repeat itself.39