by Vann R. Newkirk II
[OCTOBER 2016]
In 1901, America was ascendant. Its victory over Spain, the reunification of North and South, and the closing of the frontier announced the American century. Americans awaited the inauguration of the 57th Congress, the first elected in the 20th century. All of the incoming members of Congress, like those they replaced, were white men, save one.
Representative George Henry White did not climb the steps of Capitol Hill on the morning of January 29 to share in triumph. The last black congressman elected before the era of Jim Crow, White, a Republican, took the House floor in defeat. He had lost his North Carolina home district after a state constitutional amendment disenfranchised black voters—most of his constituents. That law marked the end of black political power in North Carolina for nearly a century.
“This, Mr. Chairman, is perhaps the Negroes’ temporary farewell to the American Congress,” he declared, “but let me say: Phoenixlike he will rise up someday and come again. These parting words are in behalf of an outraged, heartbroken, bruised, and bleeding, but God-fearing people, faithful, industrious, loyal people—rising people, full of potential force.”
White eulogized what the country had sacrificed for its newfound prosperity. “I am pleading for the life, the liberty, the future happiness, and manhood suffrage for one-eighth of the population of the United States,” he told the House. His pleas fell on deaf ears.
Over the next century and a half, White’s home state would see constant skirmishes over the same racial and political issues. Although White admitted temporary defeat, the battle for North Carolina is still raging today.
In 2016, bitter and unyielding contests have placed the state at the center of national debates about race, civil rights, violence, and elections. In the span of a year, an anti-transgender “bathroom bill” sparked rallies and a fierce debate over civil rights, flames licked the streets of a resegregated Charlotte during protests over a police shooting, a local GOP office was firebombed, and a collection of new laws was enacted—and promptly challenged in court. But the most contentious and sustained rift has been in the arena of voting rights, where White’s words resound most loudly.
I drove to one of the staging grounds of that battle in late August and watched as a stream of activists walked inside from the heat of a summer evening.
Sitting just outside of North Carolina State University’s sprawling campus in Raleigh, Pullen Memorial Baptist Church is wholly unlike the hidebound Southern Baptist churches I grew up with in rural North Carolina. Inserts in the hymnals boasted of the church’s commitment to racial, sexual, and gender inclusivity and advertised a training for sensitivity to transgender and gender-nonconforming folks. Scattered through the rows of the church sat an eclectic crowd of old-school civil-rights movement leaders, Latino college students, white clergymen, LGBTQ activists, state NAACP organizers, and first-timers who’d driven from the woods down state highways in pickup trucks.
After a round of call-and-response chants, the North Carolina NAACP president, Reverend William J. Barber II, took the pulpit to applause. With a seasoned preacher’s pace, Barber launched into the kind of hybrid of political speech and sermon that marks pastors turned activists. “The Fourteenth Amendment says every person has a right to equal protection under the law,” he told the crowd. “When you engage in intentional voter discrimination, you are robbing people of their equal protection under the law.” His words were both a benediction and a battle cry.
Barber delights in connecting the dots between the country’s past and its present. He has proclaimed this moment a “Third Reconstruction,” and dubbed his protests “Moral Mondays.” President Lyndon B. Johnson signed the Voting Rights Act in 1965, but its own limitations, and the backlash it sparked, led directly to the voting-rights problems facing North Carolina today.
Even after 1965, North Carolina still struggled mightily with racial equality at the ballot. Thirty-six percent of all eligible black adults were registered to vote in North Carolina in 1963; that number jumped to 50 percent after the passage of the Voting Rights Act but stalled there. Literacy tests remained active in the state until changes were made to the VRA in 1975. By 1980, the proportion of registered black voters had barely inched up to 52 percent. Adjustments made in 1982, including a new legal test for discrimination based on the effect of changes rather their intent, restored some momentum. In 1990, 63 percent of eligible black voters were registered, but the wide racial disparity in turnout still persisted in North Carolina through to the new millennium.
Why didn’t—or couldn’t—more black people vote once extended the franchise? One reason is that all the structural barriers to voting hadn’t been eliminated. Research indicates that polling places tend to be less common in minority neighborhoods, and understaffed and underfunded relative to those in white neighborhoods, so longer lines are much more likely in minority areas. The latent difficulty of registering to vote in under-resourced areas compounds with other obstacles for minority voters—lower wages, higher unemployment, more rigid work schedules, and large racial disparities in car ownership—to depress turnout even in the absence of Jim Crow laws.
One simple way to increase turnout is to make voting easier. And North Carolina began doing just that in 1993, with a bipartisan push to establish early voting as an extension of on-site absentee voting. That was extended to statewide early voting in the 1999 session. The General Assembly also considered “no excuse” absentee voting by mail, preregistering teenagers, and expanding voter-registration locations. These proposals were intended to increase turnout among North Carolinians of all races and party affiliations who struggle to make it to the polls on Election Day.
Economic and social frustrations deeply affected vulnerable people of color in North Carolina. Activists advocated closing the voter-turnout and -registration gaps as a way to push for greater unemployment benefits and expanded health-insurance coverage. One of those activists was William Barber.
“Moral Mondays came from the ‘Moral Movement’ that started in 2007 when Democrats were in office,” Barber told me. “We came together—14 organizations that grew to 60—declaring that we needed a moral reset in the way in which we looked at public policy. We began to have what’s called a ‘People’s Assembly.’ The first time we gathered, more than 5,000 people showed up.”
The Moral Movement coalition was instrumental in the passage of same-day voter registration in 2007. The measure was touted as a commonsense way to help the state’s turnout across all races, but same-day registration provoked stiff Republican opposition. The bill’s sponsor, then–State Representative Deborah Ross, now the Democratic challenger for Republican Richard Burr’s Senate seat, joined with a coalition of liberal groups to pressure the Democratic leadership of the general assembly and Governor Mike Easley into adopting the provision. The movement had its first voting-rights victory.
North Carolina’s presidential-election turnout increased 14 percentage points from 2000 to 2012, vaulting from 37th to 11th. The elections in 2008 saw historic turnout levels across the state. For the first time in the state’s history, black voters outpaced white voters, and they did so again in 2012.
The one major wildcard in assessing the efficacy of voter laws in those elections was the candidacy of Barack Obama, who had the kind of paradigm-shifting effect on black registration and turnout as Emancipation and the Voting Rights Act. According to the state Board of Elections, Warren County, which has one of the highest proportions of black voters in the state, had a turnout rate greater than 80 percent in 2008.
That infusion of black voters—who mostly vote Democratic—helped unseat Republican Senator Elizabeth Dole, deliver one of North Carolina’s House seats to a Democrat, and give the party the general assembly and the offices of the governor, lieutenant governor, and attorney general. Obama himself won North Carolina by a razor-thin margin of just over 14,000 votes.
The causality of 2008 is still unclear: Did the Voting Rights Act and state voting expansions increase black voter turnout enough to hand the state to Democrats, or did Obama’s historic appeal to people of color change the composition of North Carolina’s electorate on its own? Republicans seemed to think both were factors, and the ensuing conservative backlash targeted black and Latino voters as well as Obama.
That backlash included a fundraising and organizing blitz that built the infrastructure for a political counterrevolution. The subsequent midterm election was crucial, not just for the congressional seats themselves, but because the 2010 Census would provide an opportunity to redraw both the state legislative and federal congressional district maps.
Through an initiative named “REDMAP,” or the Redistricting Majority Project, Republicans coordinated party efforts across states to create Republican majorities in state legislatures. Operatives for the project poured money into obscure state-assembly races in backwoods across the South, overwhelming the traditional analog campaigns of once-safe Blue Dog Democrats and of Republicans it deemed insufficiently conservative. Its efforts were bolstered by the Tea Party wave of voters opposed to Obama and his agenda. The result, according to a REDMAP report, was a 700-seat swing among state legislatures nationwide, which the report describes as “more success than either party has seen in modern history.”
In North Carolina, spending on state races increased by 20 percent from 2008 to 2010, an investment poured mostly into Republican campaigns. Almost all of the independent money spent on state races in 2010 came from the conservative millionaire and mega-donor Art Pope, his family, and allied groups, who spread more than $2 million across 22 races. Of those 22, Republicans won 18, creating GOP majorities in both chambers of the general assembly for the first time since Reconstruction. Only this time, Republicans were focused on restricting the electorate rather than expanding it.
State Representative David Lewis was one of the Republican leaders responsible for consolidating gains in the general assembly with the actual drawing of new political districts. During the record-setting heat wave of summer 2011, Lewis and his partner, State Senator Bob Rucho, got to work.
“We set about to draw districts that were fair and legal based on the law,” Lewis told me. “We held an unprecedented number of public hearings—36, I believe—before we released maps. We studied the law very thoroughly… we complied with the Voting Rights Act as we understood it, and as it had been interpreted by the Supreme Court of the United States.”
The Moral Movement geared up for protests immediately after Rucho and Lewis unveiled the proposed maps, and registered official comments in one of the largest series of feedback sessions the general assembly has ever had on redistricting.
“They pass[ed] a redistricting plan that is not just worse than the rest of the 20th century, they go all the way back to the 19th century,” William Barber said. “It’s what we called ‘apartheid redistricting.’ And because they didn’t remove any black districts, they didn’t take away any, then it really couldn’t be stopped by preclearance,” he said, referring to the provision in the Voting Rights Act that placed all voting-law changes in certain counties and states under federal supervision.
Under authority created by the Voting Rights Act, both parties had been creating “majority-minority” districts in redistricting plans. On the one hand, these districts ensured the election of minority representatives en masse in many states for the first time since Reconstruction, and new districts introduced new classes of black and Latino representation in Congress.
But on the other, Republicans across the South soon learned that if enough black voters are packed into just enough majority-minority districts to avoid triggering VRA protections, they could create a slew of mostly white districts that reliably vote Republican without interference from their black neighbors. In legislative sessions, Lewis argued that he’d actually been mandated by the Voting Rights Act into packing black voters into hyper-gerrymandered districts, saying they were “drawn with race as a consideration, as is required by” the VRA.
Key to the legality of majority-minority districts was the “Gingles test,” a set of three preconditions based on a 1986 Supreme Court decision in a gerrymandering lawsuit—which also came out of North Carolina. Those three preconditions are “compactness,” or whether a minority group is a coherent, massed geographic entity; the political cohesion of the minority group in question; and the presence of “racially-polarized voting,” whereby local white voters have been determined to vote in a way that defeats minority-preferred candidates. That last condition is important, because it often signals the difference between packing minority voters in a district as a “shield” to protect them from racist voting, and packing them there as a way to diminish their political influence.
In July 2011, Lewis and Rucho revealed their new congressional map, and the improbable shapes of the resulting majority-minority districts alone made it difficult to imagine that the three most contentious districts might pass the Gingles test. The First Congressional District was a behemoth, connecting a dozen counties and crossing the entire length of the mostly black portion of the coastal plain, with a single feeler that reached down into Little Washington and New Bern like a creeper vine. The Twelfth Congressional District flowed like a river along a 100-mile stretch roughly coterminous with the I-85 corridor from Charlotte to Greensboro, with tributaries only branching off in search of nearby black neighborhoods. The “hanging claw” of the Fourth District was one of the most gerrymandered in the country, and at one point encompassed an area just wide enough to place a basketball court and bleachers. North Carolina isn’t called the Tar Heel State for nothing.
Opponents of the law were left with no options, save one. “We had to go to court,” said Barber. And so, at the end of 2011, two separate groups of plaintiffs—including the North Carolina NAACP—filed complaints to the state supreme court. After consolidating the two cases, the state court began hearing the trial in July of 2013.
Around the same time, a decision in Washington opened up a new front in the voting-rights fight. In Shelby County v. Holder, Chief Justice John Roberts argued that “things have changed dramatically. Largely because of the Voting Rights Act, ‘voter turnout and registration rates’ in covered jurisdictions ‘now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ ”
While that argument might seem to illustrate the utility of the Voting Rights Act, the Roberts Court used it to nullify Section 4(b). That section outlined the congressional “preclearance” formula for determining Department of Justice oversight of precincts or states with histories of discriminatory voting laws. The Shelby County decision gutted federal oversight over election rules in areas where it had, arguably, been most effective.
Absent that federal oversight, Republicans in the South seemed bent on proving just why it was necessary in the first place. They passed a slate of new voting laws that likely would have been blocked just days before. North Carolina Republicans led the way. Although less than half of North Carolina’s counties were covered under the original formula, preclearance would have been enough of a legal hurdle to make some proposed bills to eliminate early voting, establish voter ID, and end same-day registration—like the ominously named 2013 Senate Bill 666—a nightmare to implement.
Lewis, who also took the legislative lead in the general assembly to establish new voting laws in the immediate aftermath of Shelby County, argues that those prototypical bills were not discriminatory, but necessary.
“I can show you Republican bills dating back to 2005 that institute voter ID,” he told me. “And what happened in 2005 is the Carter-Baker Commission, chaired by former President Carter and Secretary of State Jim Baker, issued a report that said, ‘We need a voter ID to improve election integrity.’ ” The Carter-Baker report does recommend standardized voter-ID requirements and procedures as a way to inspire confidence in elections. It also warns that such requirements “might prove a serious impediment to voting” if not implemented properly or in good faith.
According to Lewis, the goal of the new voting restrictions was not to take advantage of the sudden absence of federal oversight, but “to improve the real and perceived integrity of North Carolina’s election system.”
In anticipation of the Shelby County decision, the state House had already heavily revised an older voting bill—House Bill 589—to a form almost identical to Senate Bill 666, including strict voter-ID provisions, a reduction of the early-voting period from 17 days to 10, elimination of same-day registration, and an elimination of straight-ticket voting. That weeklong reduction came with a “same hours” provision that required counties to provide the same number of aggregate hours during the new 10-day early-voting period as they did during the original 17-day period—but counties could apply to have the requirement waived, and dozens did.
“The law provided for 10 days of early voting; 10 days is what the majority of states provide,” Lewis told me. “I believe that our plan created more opportunities, more hours, more places, allowed more people to vote than had ever been allowed before.”
The day of the Shelby County decision, State Senator Tom Apodaca announced to a local news station, WRAL, “Now we can go on with the full bill.” Just four days later, the bill sat in front of Governor Pat McCrory. In less than a week, the Supreme Court and North Carolina had undone most of the election laws developed over decades to help the state move beyond its Jim Crow past.
Rosanell Eaton grew up in that dark age. Her home, on a country road outside of Louisburg, North Carolina, is filled with the artifacts from the fight for civil rights. Clippings of old newspapers lauding her work on voting rights mingle with photographs of civil-rights pioneers and commendations stamped with President Obama’s seal. From a stately yellow armchair in the corner of a room, she regales visitors who sit on her plastic-covered couches with tales of voter-registration drives for black folks back when people like her were still lynched for voting. Very few—if any—living African Americans in North Carolina have fought for voting rights for as long as Eaton.
Born in rural Franklin County in April 1921, Eaton is the granddaughter of people who were once enslaved. Black people in Franklin County just didn’t try to vote much back then, and Eaton became motivated when she learned that it had not always been so. “You didn’t hear much about voting in school, and I was interested in the history,” she told me. “So I asked my ma one day about taking me to Louisburg to see about voting.”
One morning in 1942, after Eaton’s 21st birthday, she climbed on the family’s mule-drawn wagon with her mother and brother and traveled the eight miles to the Louisburg courthouse. The three white men there were nonplussed.
“They asked me what was I there for,” Eaton said. “And I told them that I came down to see about getting registered.”
In order to even prove herself eligible to vote, Eaton recalled, she had to put her hands by her sides, stare straight ahead, and recite the Preamble to the Constitution, verbatim. Whether those three administrators were aware of the staggering irony of their demand or not, she stood straight, stared at a spot behind them on the wall, and aced the recitation, word for word. Apparently, so few black people had been bold—or foolhardy—enough to take the test that the registrars had no thought of intimidation beyond that point. “You did a mighty good job,” one man told Eaton. “Well, I reckon I have to have you to sign these papers.”
While the early stirrings of the civil-rights movement—often referred to as the Second Reconstruction—began in churches, bus depots, and lunch counters across the South, Eaton soon developed a reputation as an activist in her own right in her backwoods corner of Franklin County. Early on, she was given permission to register other people, and eventually led a small black-voter outreach team across the county and state.
Despite the draconian literacy tests and intimidation that kept most black voters away from the polls in the state for almost 30 years after her own registration, Eaton used the mounting social momentum of the era as motivation. Her work eventually intersected with the paths of better-known activists and movements in the ’60s in Selma, Alabama, and Washington, D.C. Juggling life as a teacher and mother, she saved extra money and scrounged to take cross-state and cross-country trips to spread the gospel of the ballot. Eaton told me that she has probably registered close to 10,000 voters, and has voted in every election since her registration.
That record was put in peril with the passage of H.B. 589, which invalidated her existing identification because of a discrepancy between her voter registration and her driver’s license. For a then-92-year-old woman, the task of traveling hundreds of miles from her home to almost a dozen agencies and banks to reconcile her license and registration bordered on Sisyphean.
As a longtime voting activist and teacher, Eaton possessed the knowledge necessary to navigate the process of reregistering. But she knew that if it was burdensome for her, then it could prove impossibly daunting to many others, including rural voters of color like her, in the same way it did during Jim Crow. “It was maybe harder for me to get to vote after the law than it was all the way back then,” Eaton said.
After an appeal through the district court, a team of advocates and plaintiffs, including Eaton, won the ruling that they hoped for. In July 2016, the Fourth Circuit court found that the sweeping provisions of H.B. 589 not only possessed clear discriminatory impacts, but that they “were enacted with racially discriminatory intent.” The ruling found that state legislators had requested racial data on early voting, out-of-precinct voting, voter ID, same-day registration, and provisional voting.
In essence, the court determined that Republican lawmakers had identified every voting provision that motivated high turnout among black voters, and then eliminated them, targeting black people with “almost surgical precision.” The court also found that the speed of the general assembly’s post–Shelby County maneuvering betrayed its true intentions. “Indeed, neither this legislature—nor, as far as we can tell, any other legislature in the Country—has ever done so much, so fast, to restrict access to the franchise,” the opinion states.
Lewis was emphatic in denying the Fourth Circuit’s claim of discriminatory intent. “There’s no way in the world I would do anything that I felt denied folks the opportunity to vote, but at the same time I didn’t want folks voting more than once, because that cheapens the vote,” Lewis said. He stands by that rationale, despite a State Board of Elections report, presented to him in 2013, that found only two total allegations of in-person voter fraud in the entire state from 2000 to 2010.
Republicans faced another setback later in 2016, when a district-court ruling struck down Lewis and Rucho’s redistricting plan. The court found that Lewis’s map-drawing expert, Thomas Hofeller, had not even considered the “racially-polarized voting” component of the Gingles test in the creation of the First District, and that black and white voters had actually worked together in electing minority candidates before the redistricting.
Between the Supreme Court’s refusal to review the Fourth Circuit’s decision on H.B. 589 and the district court’s decision on the new state district maps, the winds seemed to shift against Republican maneuvering on voting rights. But for the North Carolina GOP, there was one last gambit.
In an August letter to county boards of elections—an unusual and controversial direct appeal—state GOP Executive Director Dallas Woodhouse told partisan board members that “Republicans can and should make party line changes to early voting.”
Lewis argued that Republican reform efforts, including H.B. 589, were actually intended to make voting more accessible—and had included a provision to ensure that the overall number of voting hours could not be reduced. But with that bill struck down, Woodhouse urged Republican officials to do exactly that. His letter urged limiting hours during the 17 days mandated for early voting, reducing the number of early-voting sites, and eliminating strategically convenient sites on college campuses, in minority neighborhoods, and near churches. Lewis and Rucho released a subsequent letter urging boards of elections to not limit hours or polling places during the early-voting period.
After H.B. 589 was struck down, county election officials scrambled to submit new polling plans in time for the fall elections. Republicans pushed for restrictions that fell in line with Woodhouse’s recommendations, including restricting polling places during the additional week of early voting reinstated when the court struck down the voting restrictions.
The Republicans’ moves ignited opposition from their Democratic colleagues, who took their appeals to the State Board of Elections, with the hope that it would either accept their alternative plans to extend the full complement of early-voting polling places across all 17 days or offer a compromise.
That body, despite a Republican majority, ruled on September 8 to add more early-voting locations and hours in many of the counties with appeals. It ruled to adopt an alternative plan to include eight polling places across populous Wake County—including on the college campus and in the community center in the black neighborhood—during the additional week.
Aside from the handful of counties that changed early-voting regulations and did not appeal, Republican efforts to roll back the turnout-increasing voting laws across the state appeared to have met a dead end for this election cycle.
Although the Moral Movement and voting-rights activists won victories in the courts, the final outcome of voting rights in North Carolina and the century-old battle for its soul is far from settled. In the Supreme Court’s 4–4 stalemate on McCrory’s appeal and request to stay the lower court’s injunction of H.B. 589, each of the conservative justices indicated that they would have granted the stay.
The future success of any appeal by the state will depend on the high court, and state legislators could always find new avenues for rolling back turnout. Without federal preclearance, in 2018, 2020, and beyond, county boards of elections are still vulnerable to the kind of coordinated partisan challenges that the state GOP offices attempted with their “party line” letter.
The issues surrounding the 2016 elections in North Carolina are fundamentally similar to the issues that framed the explosive politics of the Wilmington insurrection (in 1898) and Rosanell Eaton’s time in the civil-rights movement, and the same probably holds nationwide. Instead of local firebrands, Donald Trump is the main force weaponizing white rage and grievance across the country, and his constant invocations of black and Latino criminality plot a course eerily similar to earlier invectives about “Negro rule” and rape.
It is possible that this turn of the wheel is different, and that the ghosts of Jim Crow really no longer haunt society or the fight over voting rights. Republicans in the state can point to their results over the past decade—a state that has increasingly turned red even as its demographics seem to shift blue—as proof that their goal is simply to win, and not to disenfranchise on the basis of race.
That’s certainly the view of Carter Wrenn, a legendary Carolinian conservative strategist, commentator, and former aide to Senator Helms. “African American voters, going back to the ’60s, voted overwhelmingly Democratic,” he told me. “So, if you try to skew the voter laws against Democrats, African Americans are gonna suffer or they’re gonna experience the skew disproportionately, because they vote heavily Democratic… I don’t think Republicans sat down and said, ‘Our goal is to make it harder for African Americans to vote for racial reasons.’ I think they said, ‘This will make it harder for Democrats to vote.’ And that included African Americans naturally.”
Wrenn did not have answers for the questions that seem to spring from his own explanation: Why do Republicans today seem to need to contract the electorate as much as possible to win, why does that contraction almost necessarily fall on lines of race, and can its necessity be separated from larger social friction about the loss of white electoral and social power?
If anything, history suggests that race and racism are perhaps the real answers here—not simple ancillaries to political maneuvering, but its first considerations. The concepts are inseparable, and disenfranchisement of black voters has been central to the duel between Republicans and Democrats since Emancipation.
The voting laws under which North Carolina operated for the vast majority of its history were dictated by white supremacy. That black voters historically turn out less than white voters is directly connected to the century-long campaign to disenfranchise them. That black voters overwhelmingly back Democrats is inseparable from the two parties’ emphatic reversal on voting rights. That they turned out heavily for Barack Obama in 2008 must be considered within the context of a half-century drought of black political representation between the two Reconstructions.
Barber believes that this nationwide battle over voting rights, and the reawakening of fear and white rage across the country, are direct descendants of those moments. If Barber is right, history is mixed on the long-term prospects for racial progress, and civil-rights gains may be more precarious than they seem.
“I believe we’re in the adolescent stages of a Third Reconstruction,” he told me. “People are beginning to wake up in some ways and beginning to see that something is at stake when it comes to the very heart and soul of America.”
Even if he’s right, though, it’s not clear whether it will prove more durable than its predecessors.