It was a mystery worthy of Raymond Chandler. On November 8, 2016, African Americans did not show up. It was like a day of absence. African Americans had virtually boycotted the election because they “simply saw no affirmative reason to vote for Hillary,” as one reporter explained, before adding, with a hint of an old refrain, that “some saw her as corrupt.”1 Another journalist concluded that because Clinton lacked the ability, charisma, or magic to keep Barack Obama’s coalition together, “African-American, Latino and younger voters failed to show up at the polls.”2 As proof of blacks’ coolness toward her, journalists pointed to the much greater turnout for Obama in 2008 and 2012.3
It is true that, nationwide, black voter turnout had dropped by 7 percent overall. Moreover, less than half of Hispanic and Asian American voters came to the polls.4 This was, without question, a sea change. The tide of African American, Hispanic, and Asian voters that had previously carried Barack Obama into the White House and kept him there had now visibly ebbed. Journalist Ari Berman called it the most underreported story of the 2016 campaign.5 But it’s more than that. The disappearing minority voter is the campaign’s most misunderstood story.
One Person, No Vote seeks to change that. Minority voters did not just refuse to show up; Republican legislatures and governors systematically blocked African Americans, Hispanics, and Asian Americans from the polls. Pushed by both the impending demographic collapse of the Republican Party, whose overwhelmingly white constituency is becoming an ever smaller share of the electorate, and the GOP’s extremist inability to craft policies that speak to an increasingly diverse nation, the Republicans opted to disfranchise rather than reform. The GOP, therefore, enacted a range of undemocratic and desperate measures to block the access of African American, Latino, and other minority voters to the ballot box.6 Using a series of voter suppression tactics, the GOP harassed, obstructed, frustrated, and purged American citizens from having a say in their own democracy. The devices the Republicans used are variations on a theme going back more than 150 years. They target the socioeconomic characteristics of a people (poverty, lack of mobility, illiteracy, etc.) and then soak the new laws in “racially neutral justifications—such as administrative efficiency” or “fiscal responsibility”—to cover the discriminatory intent. Republican lawmakers then act aggrieved, shocked, and wounded that anyone would question their stated purpose for excluding millions of American citizens from the ballot box.7
The millions of votes and voters that disappeared behind a firewall of hate and partisan politics was a long time in the making. The decisions to purposely disfranchise African Americans, in particular, can be best understood by going back to the close of the Civil War. As a southerner explained, “Many Texans refused to accept the fact that the Negro was ‘free and equal,’ and stopped at nothing to prevent him from enjoying civic and political rights.”8 After Reconstruction, the plan was to take years of state-sponsored “trickery and fraud” and transform those schemes into laws that would keep blacks away from the voting booth, disfranchise as many as possible, and, most important, ensure that no African American would ever assume real political power again.
The last point resonated. Reconstruction had brought a number of blacks into government. And despite their helping to craft “the laws relative to finance, the building of penal and charitable institutions, and, greatest of all, the establishment of the public school system,” the myth of incompetent, disastrous “black rule” dominated.9 Or, as one newspaper editor summarized it: “No negro is fit to make laws for white people.” Of course, the white lawmakers couldn’t be that blatant about their plans to disfranchise; there was, after all, that pesky Constitution to contend with, not to mention the Fifteenth Amendment covering the right to vote with its language barring discrimination “on account of race.” But, undaunted, they devised ways to meet the letter of the law while doing an absolute slash-and-burn through its spirit.10
That became most apparent in 1890 when the Magnolia State passed the Mississippi Plan, a dizzying array of poll taxes, literacy tests, understanding clauses, newfangled voter registration rules, and “good character” clauses—all intentionally racially discriminatory but dressed up in the genteel garb of bringing “integrity” to the voting booth. This feigned legal innocence was legislative evil genius.
Virginia representative Carter Glass, like so many others, swooned at the thought of bringing the Mississippi Plan to his own state, especially after he saw how well it had worked. He rushed to champion a bill in the legislature that would “eliminate the darkey as a political factor … in less than five years.” Glass, whom President Franklin Roosevelt would one day describe as an “unreconstructed rebel,” planned not to “deprive a single white man of the ballot, but [to] inevitably cut from the existing electorate four-fifths of the Negro voters” in Virginia.
One delegate questioned him: “Will it not be done by fraud and discrimination?”
“By fraud, no. By discrimination, yes,” Glass retorted. “Discrimination! Why, that is precisely what we propose … to discriminate to the very extremity … permissible … under … the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.”11
The determination to wipe out the black vote ensnared whites as well, however. Though, for many of those in power, that was just fine. One Mississippi politician remarked that his state had to disfranchise “the ignorant and vicious white,” too, so that the electorate was “confined to those, and to those alone, who are qualified by intelligence and character for the proper and patriotic exercise of this great franchise.”12 The resulting “voter mortality rate” was staggering. Throughout the South after the widespread adoption of the Mississippi Plan, voter turnout plummeted to less than half of age-eligible whites, after it had peaked in 1896 at 79.6 percent.13 In Texas, for example, only 27 percent of age-eligible whites voted in the 1956 election (the national rate was 60 percent).14 The decline was even more dramatic in the Magnolia State. In the late nineteenth century, Mississippi’s voter turnout was close to 70 percent; “by the early twentieth century it scraped near 15 percent.”15
While there was a steady erosion of white voters, the collapse of black voter turnout was precipitous. In Louisiana, where “more than 130,000 blacks had been registered to vote in 1896, the figure dropped to a bleak 1,342 by 1904.”16 African American registered voters in Alabama plunged from 180,000 to fewer than 3,000 in just three years.17 As historian C. Vann Woodward concluded, “The restrictions imposed by these devices [in the Mississippi Plan] were enormously effective in decimating the Negro vote.”18 Indeed, by 1940, shortly before the United States entered the war against the Nazis, only 3 percent of age-eligible blacks were registered to vote in the South.19
That the states arranged to achieve this remarkable, systematic denial of the vote, while staying within the bounds of the Fifteenth Amendment, is a testament to the warped brilliance of the Mississippi Plan. Senator Theodore Bilbo (D-MS), one of the most virulent racists to grace the halls of Congress, boasted of the chicanery nearly half a century later. “What keeps ’em [blacks] from voting is section 244 of the [Mississippi] Constitution of 1890 … It says that a man to register must be able to read and explain the Constitution or explain the Constitution when read to him.” Mississippi, the senator bragged, “then wrote a constitution that damn few white men and no niggers at all can explain.”20
Bilbo was pointing to the power of the literacy test and understanding clause, which were tailor-made for societies that systematically refused to educate millions of their citizens and ensured that the bulk of the population remained functionally illiterate. By 1940, more than half of all African American adults in Mississippi had fewer than five years of formal education; almost 12 percent had no schooling whatsoever. The figures were even more dismal in South Carolina, Louisiana, Georgia, and Alabama.21 Deliberate underfunding of black schools was critical to the literacy test’s disfranchising success. During World War II, for example, Louisiana spent almost four times as much per capita on white elementary schoolchildren as on African American students.22 Amite County in Mississippi scraped together $3.51 per black child but nearly ten times that amount to educate its white students.23 In addition, for most of the twentieth century, many Jim Crow school systems did not have high schools for African Americans. That set the stage for states such as Alabama—where more than 54 percent of black adults had fewer than five years of formal education—to require those who came through resource-deprived school systems and who wanted to register to vote to wrangle with the intricacies of constitutional law.24
The process was, by design, simultaneously mundane and pernicious. At the registrar’s office, while whites might have had a one-sentence section of the Alabama or U.S. Constitution as their litmus test for worthiness to vote, African Americans would get difficult, complex passages in order to prove their literacy, and then they would have to interpret that legal treatise to gauge how well they could actually understand what they had just read. This combination of literacy tests and understanding clauses was designed to thwart blacks’ voting rights as they confronted a passage such as this:
SECTION 260: The income arising from the sixteenth section trust fund, the surplus revenue fund, until it is called for by the United States government, and the funds enumerated in sections 257 and 258 of this Constitution, together with a special annual tax of thirty cents on each one hundred dollars of taxable property in this state, which the legislature shall levy, shall be applied to the support and maintenance of the public schools, and it shall be the duty of the legislature to increase the public school fund from time to time as the necessity therefor and the condition of the treasury and the resources of the state may justify; provided, that nothing herein contained shall be so construed as to authorize the legislature to levy in any one year a greater rate of state taxation for all purposes, including schools, than sixty-five cents on each one hundred dollars’ worth of taxable property; and provided further, that nothing herein contained shall prevent the legislature from first providing for the payment of the bonded indebtedness of the state and interest thereon out of all the revenue of the state.
And the registrar’s decision on whether the would-be voter passed through this maze of legal gobbledygook was final. Non-appealable.25
Black coal miner Leon Alexander knew this firsthand. He recalled the moment, shortly after World War II, when he tried to register to vote in Alabama. He stood there at the counter waiting and waiting while the registrar made a big show of deliberately ignoring him. Finally, when whites came into the office, the registrar greeted them, provided the paperwork, and promptly registered them to vote. Alexander nevertheless remained standing there, refusing to leave. Irritated, the registrar finally asked, “What you want, boy?”
“I wants to register to vote,” the coal miner replied.
The registrar got the form and took it over to Alexander, knowing perfectly well what the final result would be before the pen had even scratched the paper. The coal miner went through the literacy test writing, and writing, and writing. The moment he was done, without even reviewing the sheet, the registrar took Alexander’s registration, “balled it up and threw it in the wastebasket.”
“You disqualified,” he said. “You didn’t answer the question.”
In the end, it took the intervention of three white officials in the local United Mine Workers union, who had to get Governor Jim Folsom involved, before Alexander was finally registered to vote. And even then, as the coal miner recalled, it was the registrar who got the last laugh. Alexander may have now been a registered voter, but there was one small problem: “They didn’t put me on the voting list!” His name never made it onto the official rolls; therefore, he couldn’t vote after all. Looking back, Alexander recalled, “this guy had no intention of registering [me], not only no intention of registering me, he had no intention of registering any black to vote.”26
Despite the fact that this scene played out over and over in registrars’ offices across the South—where a registrar in Mississippi could even ask African Americans, “How many bubbles in a bar of soap?”—the law itself was just race-neutral enough to withstand judicial scrutiny.27 Not only did literacy tests appear nondiscriminatory; they also carried the aura of plausibility. Voters, everyone could agree, ought to be able to understand their state’s laws. Yet when that device was made operational, it had nothing to do with the law, of course, nothing to do with an engaged citizenry, and precisely everything to do with eliminating as many age-eligible African Americans from the voter rolls as possible. Eighty percent was Carter Glass’s goal. But the actual numbers were even more brutal. By 1953 in the Deep South, “eleven counties where the black population equaled or exceeded that of whites” had only 1.3 percent of all eligible blacks registered to vote. Two counties had no African American voters at all.28
And then there was the poll tax, which all eleven states of the former Confederacy had adopted. Initially, after the Civil War, the poll tax “was intended not so much to disenfranchise the Negro as to place him again under the white man’s domination, since failure to pay the tax was made prima facie evidence of vagrancy,” which was the catchall term to criminalize, jail, and auction off African Americans. The “Negro who desired to stay off the chain gang was … forced to place himself under the protection of a white man who would pay the tax for him.”29 It was only years later, during the rise of Jim Crow, that the deliberate intent to choke off the black vote came into play when the states required all age-eligible males to pay an annual fee in order to vote.30 Its proponents wielded the seemingly rational arguments that it costs money to hold elections and that extra funds were necessary to meet the needs of democracy. Moreover, they said the poll tax simply provided additional revenue for public schools. As a revenue producer, it was “a flop,” however; Arkansas, for example, raised “only 5 percent of [its] total school budget by the poll tax, a tax that [kept] a good 80 percent of [the state’s] adult citizens from voting.”31 But to many of the poll tax’s proponents, the high “voter mortality rate” proved how important it was for vetting and weeding out those unworthy of democracy.
“Any person unwilling to pay a small fee in order to enjoy such a precious privilege did not deserve the franchise,” its advocates proclaimed. Behind the veil of fiscal and patriotic duty, however, was the full understanding that without the poll tax, “Negroes would again be an important factor in southern politics.” One man in Arkansas put it succinctly enough: “Do you want to see niggers in the state capital with their feet on the desk?”32
The power of the poll tax derived from several key components. First were the arcane rules about when and where to even pay the tax. The “procedures,” C. Vann Woodward observed, were “artfully devised to discourage payment.”33 And, as it was law enforcement that collected the poll tax, the intimidation factor was very real in many locales. Sheriffs, notorious in the black community for their racism and brutality, were now the gatekeepers to the franchise.34 In Tallahatchie County, Mississippi, for example, “where most whites but few Negroes had registered to vote,” the sheriff admitted “that he instructed his deputies to require all persons paying poll taxes for the first time to apply to him personally.”35 There was another built-in obstacle, as well. In most states, the tax was due months before the election. One man noted that “paying a poll tax in February to vote in November is to most folks in Texas like buying a ticket to a show nine months ahead of time, and before you know who’s playing or really what the thing is all about. It is easy to forget to do, too.”36
Second, the tax was cumulative, a feature that alone would prove virtually insurmountable. For every year the resident was eligible to vote, a payment was due. For example, if after twenty years of not voting or having been unable to vote, an African American in Alabama in 1944 was finally able to pay, he or she would need not $1.50 to do so but rather $30, which is the equivalent of $722 in 2016.37 By design, then, those back taxes “effectively depressed the black turnout.”38
The economics of disfranchisement were brutally simple. In the mid-1940s, the National Committee to Abolish the Poll Tax estimated that 10 million Americans were denied the right to vote because they simply could not pay.39 Many poor blacks were sharecroppers, living on credit until the harvest came in. Without cash throughout most of the year, they had no ability to pay the poll tax.40 In Mississippi, the average farm family’s income was “less than $100 a year.” The state was, therefore, requiring that the impoverished give up 2 percent of their annual income “to cast a ballot.” In households with three adults, this demand on limited resources could require them “giv[ing] up 6 percent of their income for the franchise.”41
Southern lawmakers knew exactly what they were doing here. In 1950, African Americans’ median income was but 54 percent that of whites’, and the poll tax, absorbing a disproportionate share of blacks’ “disposable” income, was often a burden too heavy to bear.42 As late as November 9, 1963, Texas saw the enormous value of the poll tax and voted to maintain this tool of disfranchisement because “removing the poll tax requirement … would ‘allow’ minorities to ‘flood the polls.’ ”43
In short, while the poll tax may have read as race-neutral—seemingly applicable to all—its reality was anything but, as the disparities in wealth, education, and relations with law enforcement had everything to do with the disparities in access between blacks and whites. Moreover, the registrars’ discretion, as with the literacy test, inevitably undermined any sense of fairness or nondiscrimination, as they “thwarted black aspirants by not showing up at the office or by simply refusing to register blacks to vote when they did.”44
There was another built-in inequity in the system. Mississippi, for instance, required receipts for two years of poll taxes in order to vote. The tilt in the playing field was apparent when arch-segregationist Theodore Bilbo’s political operation worked with election officials to handle the difficulty of keeping track of multiyear receipts. His all-white constituency’s “receipts are not only bought for them but are kept on file, issued on election day, re-collected and saved for the next year.” The political machines in Texas did something similar. They would “buy up as many poll tax receipts as they [could], … keep them on file and pass them out … on election day—with instructions, of course, and an extra dollar or so for sweetenin’.”45 It was a total debasement and corruption of democracy, and it worked. During World War II, the overall voter turnout in the seven poll tax states was just 3 percent for the midterm election. The 1944 presidential election was only marginally better. The poll tax states could barely generate an 18 percent turnout rate, as compared with the nearly 69 percent national average.46
Another powerful tool to stop African Americans from having any political voice was the white primary. Key to the white primary’s effectiveness was the fact that from Reconstruction until 1968 the South was a one-party system—only Democrats needed apply, so despised was the party of Lincoln. Several of the states, therefore, began to discern that one way to skirt around the Fifteenth Amendment was to tinker with the primary election, during which the Democratic candidate was chosen. This seemed foolproof for two reasons. First, because the South was a one-party region, whoever won in the spring would certainly be the victor in November. As long as the all-important and decisive primary was a whites-only affair, the results would be foreordained. And second, in 1921 the U.S. Supreme Court had ruled in Newberry v. United States that the federal government, and, thus, the U.S. Constitution itself, had no authority over the conduct of primary elections in the states.47 With no federal interference and a hermetically sealed party system, the white primary became a masterful way to “emasculate politically the entire body of Negro voters,” especially those who had successfully defied the other methods of disfranchisement, such as poll taxes and literacy tests.48 In fact, one Georgia legislator strenuously “opposed another [proposed] disfranchisement device” because he believed it was unnecessary: “We already had the Negro eliminated from politics by the white primary,” he proudly asserted.49 And then a paper-thin aura of legality was achieved because blacks were welcome to vote in the irrelevant and perfunctory general election.
Except black people fought back. Over the span of twenty years they launched four separate lawsuits that went all the way to the U.S. Supreme Court. Texas was the site of this battle, because while all eleven states of the Old Confederacy had the white primary, the Lone Star State did it in “a more brutally direct fashion.”50 Its 1923 statute expressly forbid anyone but whites from voting in the Democratic primary. That was too explicit even for a U.S. Supreme Court that had previously decided that the poll tax and the literacy test were constitutional.51 After reviewing Texas’s white primary law, and seeing such an explicit violation of the equal protection clause, the court was unanimous and unequivocal: “It seems to us hard to imagine a more direct and obvious infringement of the Fourteenth Amendment.”52
Texas was, however, undaunted. Satisfied that the court hadn’t questioned whether the white primary actually violated the Fifteenth Amendment right to vote, the legislature simply redrafted the statute to turn the Democratic Party into a private organization—one to which the state just happened to delegate the authority to hold a primary. The point of this ruse was perfectly clear. In the Cruikshank decision, almost fifty years earlier in 1875, the U.S. Supreme Court had established that private actors were “immune from the strictures of the Fourteenth and Fifteenth Amendments.”53
Again, blacks challenged Texas’s law, and again they prevailed—though this time by only a 5–4 decision. The statute, justices ruled, was unconstitutional because the so-called private Democratic Party received its authority directly from the state. Therefore, it was not a “private” actor at all but an agent of the State of Texas. Lawmakers in Austin soldiered on, unfazed, cleverly picking up on the part of the court’s ruling that laid out that African Americans “could be excluded from primaries” by putting the authority for that exclusion in the state Democratic convention.54 Less than a month after the Supreme Court provided the roadmap to disfranchisement, then, the Democratic Party called a statewide convention and passed a resolution “restricting membership in the Party plus participation in party primaries to white citizens of Texas.”55
Once again, the state had effectively eliminated African Americans and Mexican Americans (this was, after all, Texas) from having any real voice in determining their representatives in government or the policies that would affect their lives. And so in 1935, blacks sued Texas for a third time. Only this time, the Supreme Court, in Thurgood Marshall’s words, “blinded themselves as judges to what they knew as men” and unanimously held that the Democratic primary was now a private matter. An organization had the right to choose the qualifications for membership and that, according to the Supreme Court, is exactly what the Democratic Party did. Therefore, the State of Texas had not violated African Americans’ rights.56
Ridding this nation of the white primary now looked impossible but a subsequent U.S. Supreme Court decision in 1940 finally “pierced the façade … which had shielded primaries from the reach of Federal laws regulating the conduct of elections.”57 This landmark case, United States v. Classic (1941), erased much of the ambiguity about how far the Fourteenth and Fifteenth Amendments could reach into the election process. “If a state law made the primary an integral part of the election machinery and if the primary did effectively control the choice of the elected official then Congress had the right and the duty to regulate and control such primaries.”58 That clarity created a legal basis for the fourth white primary case, Smith v. Allwright (1944).59 A black Texan wrote, “One thing is certain, as a result of the Classic case … the tables are turned … now the Negroes are on top.”60 In an 8–1 decision, the Supreme Court affirmed that sentiment when it ruled that the white primary, although supposedly a private affair, was central to the election process and, therefore, fell under the domain of federal law and the U.S. Constitution. Marshall was overjoyed that the justices had finally “looked behind the law and ferreted out the trickery.”61
But the shenanigans continued. South Carolina decided to maintain the white primary while at the same time purging its books of all election laws. The rationale was simple: With nothing written down, there was nothing that the courts could find in violation of the Fourteenth or Fifteenth Amendments.62 Not to be outdone, Texas offered up yet another scheme, this one with a pre-primary in the guise of the all-white, private Jaybird Democratic Association, that would then feed into the Democratic primary without any official machinery involved—no election laws, public funding, or certification by the party. The state reasoned that because this was supposedly before any real election activities took place and there appeared to be a firewall between this private club and government officialdom, Texas could avoid running afoul of the U.S. Constitution. In 1953, in Terry v. Adams, the Supreme Court disagreed, saying that the scheme in whatever guise was unconstitutional, and, with that, finally and completely driving a stake through the heart of the white primary.63
What the states could not accomplish by law, they were more than willing to achieve by violence. The wholesale slaughter of African Americans in Colfax, Louisiana (1873), Wilmington, North Carolina (1898), and Ocoee, Florida (1920) resulted in the loss of hundreds of lives simply because whites were enraged that black people had voted.64 As states encouraged or winked at the murders, as killers stepped over the bodies and gobbled up the stolen land and property, black political power evaporated in a hail of gunfire and flames.
In 1946, former Georgia governor Eugene Talmadge was determined to keep it that way especially because World War II had lit a political fire in Black America.65 He knew that the number of African Americans registered to vote had skyrocketed from 20,000 statewide in 1944 to 135,000 just two years later. During his run to regain the governor’s office, he therefore vowed to reinstate the white primary, welcomed the endorsement of the Ku Klux Klan, and “campaigned largely on the issue of ‘keep the niggers where they belong!’ ” His followers launched a major purge of the voting rolls, especially in the rural counties, followed by “cross burnings, night riders, and violence.” Talmadge didn’t flinch in the face of all this bloodshed and terror. Instead, he encouraged “the good white people [to] explain it to the negroes around the state just right.” If African Americans were appropriately persuaded, Talmadge concluded, “I don’t think they will want to vote.” One white man responded enthusiastically, “[Lynching has] got to be done to keep Mister Nigger in his place … Gene told us what was happening, and what he was going to do about it.”66
What Talmadge had done was to give his blessing to waves of anti-black violence.67 A World War II veteran, Maceo Snipes, was one of the first to get caught in the tide of state-sponsored lynching. This was no surprise. Black veterans were particular targets throughout the South because their sense of rights and racial justice had grown especially acute during the battles to defeat the Nazis.68 Snipes knew that he had already put his life on the line for democracy. He was willing to do it again. But what World War II didn’t kill, Georgia most certainly did. The 1946 primary was the first since the U.S. Supreme Court’s Smith v. Allwright decision, and Snipes, as an American citizen, believed that he actually had the right to participate in his state’s election. He was mistaken. Whites had already posted a sign on the black church in Taylor County, Georgia: “The first Negro to vote will never vote again.”69 Snipes was not deterred. In July 1946, he cast his ballot in Taylor County’s primary. In fact, he was the only black person to do so; and with that act of democratic bravery, Maceo Snipes signed his death warrant.
A few days later four white men showed up at Snipes’s house and demanded that he step outside. As he stood on the porch, they pointed their guns at him and began firing. Snipes staggered and fell to the ground. They just walked away. His mother ran out of the house and got him to the hospital, but in Jim Crow America, black patients did not have the right to health care. He lay in a room the size of a closet unattended for six hours bleeding, just bleeding. This strong man, this veteran, lingered for two more days, but the damage was too extensive, the medical treatment too slow, and Georgia’s hate too deep. In the wake of his murder, there was barely an investigation, and given that his death was “a direct result of the violence preached by Governor-elect Talmadge,” Snipes’s killers walked.70
In Mississippi, Senator Theodore Bilbo was also determined that his state’s black population would have no rights that the white man was bound to respect. During the 1946 primary, he riled up his “red-blooded Anglo-Saxon” followers with orders that “the best way to keep the nigger from voting … [was to] do it the night before the election.” Then, as if additional clarification were required, he sneered, “If any nigger tries to organize to vote, use the tar and feathers and don’t forget the matches.” In some cases, blacks were simply turned away; but in others, officials taunted African Americans demanding that they “paint … their faces white” if they wanted to vote in the white primary. Others were just beaten. Etoy Fletcher, a veteran, was actually “flogged.” V. R. Collier, the president of the NAACP branch in Gulfport, was “physically assaulted.” When he turned to the Federal Bureau of Investigation for help, the agent told him that the bureau didn’t protect; it investigated. When he called the U.S. attorney in Jackson, Collier was directed to seek help from the FBI. The realization was wrenching: “We Negroes are without any protection at all,” he said.71
Intimidation and violence simply prevented access to the polls for African Americans. Over and over those who tried to register to vote would be photographed by the police and harassed and threatened by gun-toting, pickup-driving toughs. Blacks who dared register had a virtual target on their backs. They would soon receive a visit from the sheriff, endure arrest on some trumped-up charge, and face jail time or an exorbitant fine.72 In Rankin County, Mississippi, the sheriff stopped a black man from registering to vote at the courthouse by beating him. “I hit him and kept on hitting him,” the sheriff bragged, “And if he hadn’t run I would have kept on hitting him.” The beating was not just about stopping this one man; “it was meant to send a message” that this “was the fate for others seeking this precious right.”73
The tools of Jim Crow disfranchisement worked all too well. In 1867, the percentage of African American adults registered to vote in Mississippi was 66.9 percent; by 1955, it was 4.3 percent.74 Between 1954 and 1962, only eight blacks in all of Claiborne County had managed to come through Mississippi’s gauntlet.75 Those vote-chilling numbers scarred the southern electoral landscape. Five counties in Alabama had zero to less than 2 percent of African Americans registered.76 In Georgia, “less than 10% of the age-eligible African Americans were registered in 1962” in thirty counties with significant black populations. In fact, four entire counties had fewer than ten nonwhites registered.77
Denying the vote to millions of American citizens was so deeply rooted in the fabric of the nation, twisted into the mechanics of government, and embedded in the political strategy and thinking of powerful government officials that this clear affront to democracy was not going to change on its own. Fortunately, local resistance and global condemnation combined to take America to the brink of democracy.
Starting in 1947, the United States found itself in a pitched battle for global leadership against the Soviet Union. Two hegemons, two warring ideologies, two economies were amassed and ready to destroy the other. The reality of nuclear weapons, however, made any head-on confrontation an existential impossibility. Therefore, they fought a series of proxy wars in Asia, Africa, and Latin America “with the ferocity that only civil wars can bring forth.” As each superpower chose sides and armed and financed the combatants, “the Cold War took demonic possession of a local transition.”78
The Cold War also weaponized culture and propaganda.79 The Soviet Union prided itself on meeting the basic material needs—housing, employment, health care—of its people. There was, of course, a steep price to be paid in terms of individual freedom and liberty. The Soviet weakness, therefore, played directly into the Americans’ strength: democracy. But, given Jim Crow, those vaunted democratic ideals turned out to be the U.S.’s Achilles heel as well—a fundamental hypocrisy the Soviets set out to exploit at every turn.80
Each lynching, each bombing of a black home or business, each miscarriage of justice became grist for the Kremlin’s mill. One article in the party-controlled Soviet press laid out the “numerous examples of racial terrorism in the U.S.A., such as the lynching of the Negro [Emmitt] Till, the brutal persecution of the Negro girl Autherine Lucy, the arrests of Negro leaders in Montgomery and the explosions of bombs near the homes of Negroes in northern and southern states.”81
While each of those troubled the American narrative of democracy, Little Rock sent shockwaves and ripped it apart. White resistance to the Brown v. Board (1954) decision to integrate schools was fiery, furious, and fevered as it erupted, most visibly in Little Rock, Arkansas, in 1957, when nine black honor students sought to desegregate Central High. The crisis “brought Jim Crow violence to vivid life in world media” and led Secretary of State John Foster Dulles to exclaim that “this situation was ruining our foreign policy.”82 The Soviets wanted to be sure of it as they published their exposé: “National guard soldiers and policemen armed to the teeth bar Negro children from entering the schools, threaten them with bayonets and tear-gas bombs and encourage hooligans to engage in violence with impunity.”83
The racial violence also caught the attention of nations the United States wanted firmly allied with the West, and no amount of State Department assertions about Soviet propaganda could allay the damage. The U.S. ambassador to the United Nations Henry Cabot Lodge asserted, “I can see clearly the harm that [Little Rock is] doing … More than two-thirds of the world is non-white and the reactions of [their] representatives is easy to see.”84 The Times of India ran with a front-page story, “Armed Men Cordon Off White School: Racial Desegregation in Arkansas Prevented.” Similar articles dominated the news in Egypt, Tanganyika, and other places. The Irish Times laid out the costs: The crisis in Little Rock had “given Communist propagandists the text for innumerable sermons to coloured peoples everywhere.”85
What ruined the U.S.’s credibility, the Soviets gleefully claimed, was that people who “dream of nooses and dynamite … who throw rocks at defenseless Negro children—these gentlemen have the audacity to talk about ‘democracy’ and speak as supporters of ‘freedom.’ ”86 Don’t be fooled, the Kremlin warned—the U.S. goal was to export Jim Crow, not democracy. “American racism and its savage practice of cruel persecution and abuse of minorities is … the true nature of the American ‘democracy’ which the United States is trying to foist on other countries and peoples.”87
African Americans were well aware of the global Cold War context of their own struggle for freedom and never forgot it.88 But it was a series of local insurgencies in the black community erupting across the South that gave that uprising the aura of a “movement.”89 Recognizing the importance of the media in documenting and broadcasting that confrontation, leadership in Montgomery, Atlanta, Birmingham, and other cities adopted a nonviolent strategy to confront the evil that African Americans faced when trying to vote, go to good schools, shop, dine, and just live.
Although it came to the realization slowly, the U.S. government was now confronted with a nation-defining decision. America was paralyzed, on one hand, by the power of the Southern Democrats in Congress, whose inordinate political strength and control of key committees was based on their ability to win reelection after reelection because of massive disfranchisement and racial terror; and on the other, by the missionary-like belief that America was the champion of democracy and freedom in the battle against the Soviet Union, whose death grip on human rights had no limits. The dilemma was clear. Domestic politics and the disproportionate power of the Southern Democrats demanded that the federal government fully capitulate to Jim Crow, while foreign policy, and the need to woo the emerging Third World nations and defeat the Soviets, required that racial discrimination end once and for all.90
President Dwight Eisenhower’s “solution” to this Gordian knot, however, only pulled the rope tighter. In 1957, Attorney General Herbert Brownell, with a full assist from the wily junior senator from Texas, Lyndon Johnson, crafted and pushed through Congress the first civil rights bill in nearly ninety years. This was America taking care of the “unfinished business of democracy.” Except it wasn’t.
The Civil Rights Act (1957), while seemingly a landmark piece of legislation, was actually a paper tiger that had no ability to protect the right to vote. The act did create the Civil Rights Commission, upgrade the Department of Justice’s section on civil rights to a division, and authorize the U.S. attorney general to sue those violating the voting rights of American citizens.91 But it was—by design and implementation—no match for the entrenched resistance to black citizenship.
The core of the act gave the U.S. Department of Justice the authority to sue jurisdictions that blocked citizens from voting “on account of race.” But, the lawsuit mechanism, while an improvement, had any number of insurmountable problems. First and foremost, litigation would be a reaction to voting rights violations, rather than any sort of meaningful prevention. The “crime” had to occur, in other words, before the Department of Justice stepped in. Which meant that skewed election results, where a candidate assumed office because citizens had been systematically disfranchised, could affect years of policy and lawmaking while the long, drawn-out court process slowly unfolded.92 After investigation, these suits would take, on average, an additional 17.8 months between the trial and the judges’ ruling, and then another year for the appeal. And if the registrar who was the named defendant in the lawsuit were to leave office at any point during this process (which was a common ploy), then the case became moot and was thrown out.93 Meanwhile, the black populations could and would continue to be terrorized and harassed for daring to vote, with little to no protection.
The litigation route was hampered, too, by that fact that the Civil Rights Act “did not provide access to [voter] registration records prior to filing suit. Nor did it prohibit the destruction of these records.”94 Without that vital evidence, cases would simply stall or, worse, collapse. Moreover, “southern federal judges were sometimes unreceptive” to the suits, and all-white juries rarely returned a guilty verdict when blacks were the victims.95
And then there was the reluctance in the Department of Justice to pursue these cases with any true vigor. From the FBI to the U.S. attorney general, resentment, caution, and hesitancy were the watchwords.96 As a result, there were no systemic changes “even when there were victories,” and the Civil Rights Act of 1957 proved, just as many African Americans had feared, to be but a very “modest piece of legislation … [with] few teeth and little impact.”97
The unrelenting pressure of the Civil Rights Movement, however, meant that America’s tepid response to the denial of the basic right to vote would not go unchallenged. In Alabama’s Marion, Lowndes, and Dallas counties, years of nonviolent, direct-action protest led to a cinematic explosion in March 1965 on the Edmund Pettus Bridge in Selma. As peaceful marchers ran into the hailstorm of Alabama state troopers and Dallas County sheriff Jim Clark and his deputies, news cameras captured the horror of tear gas, barbed-wire bullwhips, and police on horseback trampling over the fallen. A nation sat in stunned silence, almost traumatized by the spectacle. And then the ensuing bludgeoning death in Selma of a white minister because he had the audacity to believe that black citizens had the right to vote became the tipping point, and now, shaken out of its complacency, a civil rights assembly mobilized.98
Congress, itself, and the White House, too, had seen enough. President Lyndon Johnson demanded that the attorney general craft a law with teeth. The “goddamdest, toughest voting rights act that [attorney general] Nicholas Katzenbach and his aides could devise targeted southern jurisdictions that had a tradition of discrimination against African Americans.”99 During the hearings to finally make the Fifteenth Amendment viable, Congress noted the ineffectiveness of the Civil Rights Act of 1957, especially in the face of entrenched resistance. The House Committee on the Judiciary stated:
The litigation in Dallas County took more than 4 years to open the door to the exercise of constitutional rights conferred almost a century ago. The problem on a national scale is that the difficulties experienced in suits in Dallas County have been encountered over and over again under existing voting laws. Four years is too long. The burden is too heavy—the wrong to our citizens is too serious—the damage to our national conscience is too great not to adopt more effective measures than exist today.100
The Voting Rights Act (VRA) passed with overwhelming majorities in the House of Representatives (328–74) and the Senate (79–18). Johnson signed the bill into law on August 6, 1965.101 Clarence Mitchell, the chief Washington lobbyist for the NAACP, said, “After five years of shameful events that increased tensions at home and caused embarrassment abroad, Congress finally gave a remedy it could have given in 1960.”102
The VRA was nevertheless a seismic shift in thought, action, and execution for the U.S. government when compared with the Civil Rights Act of 1957 and its equally enfeebled companion legislation of 1960. Rather than passively waiting for locales to violate the rights of American citizens and then sitting still until those who had been routinely brutalized by this system made a formal complaint, the VRA put the responsibility for adhering to the Constitution onto state and local governments.
In other words, the days of discriminatory laws and so-called race-neutral machinations were over; the years of relying on long, drawn-out, costly, and often ineffective litigation to address disfranchisement changed in 1965. The Voting Rights Act “thrust the federal government into the role of supervising voting in large parts of the country to protect African Americans’ right to vote, a duty it had not assumed since Reconstruction.”103 The VRA identified jurisdictions that had a long, documented history of racial discrimination in voting, and required that the Department of Justice or the federal court in Washington, D.C., approve any change to the voting laws or requirements that those districts wanted to make before it was enacted.104 The preventative thrust of the VRA was landmark.105 Alabama civil rights attorney Hank Sanders recognized the revolutionary, transformative impact that the preclearance provision could have. Section 5 of the VRA, he explained, “can complete something this country started 200 years ago. That something is not complete, it is called Democracy.”106
As might have been expected, that potential for an actual thriving, viable democracy was the threat that set the stage for a backlash that would gain momentum and velocity in the ensuing decades, all the way to 2013, when the act would be largely gutted.
In 1966, just a year after the Voting Rights Act was first passed, South Carolina challenged its constitutionality, arguing that the act infringed upon the state’s sovereignty and ability to carry out its own elections. South Carolina resented mightily the insertion of federal electors at registrars’ offices and polling places to ensure that the state no longer used literacy tests, which the VRA had banned. In South Carolina v. Katzenbach (1966), the justices, in an 8–1 decision, reaffirmed both the constitutionality and the need for the legislation. “The Voting Rights Act was designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century. Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”107
When South Carolina’s frontal challenge to the law did not work, Mississippi and Virginia took up the battle and tried to undermine it by arguing that the scope of the activities subject to the VRA was actually quite limited. Yes, they asserted, disfranchisement via literacy tests, understanding clauses, and the poll tax was now illegal. Understood. But Virginia and Mississippi, they argued, merely sought to make minor changes to aid the efficiency of elections. Certainly, those mere tweaks did not require prior approval—what the Act calls “preclearance,” from the federal government.
Operating under this assumption, Virginia changed the way it handled voters who were illiterate. Prior to the VRA, there were helpers at the polls to aid those who could not read. After the Voting Rights Act, though, the state changed the rules so that voters would have to physically write in the candidates whose names were not printed on the ballot. In the 1966 state election, those who were illiterate tried to use labels and stickers to indicate their preference only to have those votes be discarded and uncounted according to the new rule requiring the names be handwritten. This latest iteration was as “race-neutral” as the literacy test. After the Brown decision, Virginia led the effort to make the Supreme Court decision to end segregation in the schools unenforceable and untenable. So determined were state lawmakers to resist Brown that they shut down school districts throughout Virginia, funneled tax dollars into all-white private academies so that white children could continue their education, and provided no educational opportunities whatsoever for black students. This went on for years. In short, Virginia ensured that there would be schooling for whites but not blacks; and after that, the state changed its laws so that those who were illiterate would not be able to vote.108
Mississippi’s alterations in voting were equally subtle in their discrimination. After the advent of Brown and the VRA, positions such as school superintendent suddenly became appointed rather than elected offices. And whereas county supervisors had once been voted on within their respective, defined districts, now they would be installed via at-large elections. While seemingly innocuous, at-large voting is particularly insidious in areas where African Americans are a sizable part but not a majority of the population. It works like this: In the original confined districts, African Americans’ numbers were large enough to carry enormous electoral weight. Yet literacy tests, poll taxes, and Election Day terror had nullified that power and reduced black voter registration to the single digits. Therefore, there was no possibility of an African American candidate, or even a candidate openly attuned to the black community’s concerns, winning an election. So long as disfranchisement shut down the black vote, white Mississippi felt safe. After the Voting Rights Act, however, those districts could easily produce African American elected officials. Mississippi opted, therefore, to diffuse or dilute the black vote among a sea of whites by erasing the district boundaries and requiring candidates to run and succeed in a much wider geographical (and demographic) area. These supposedly race-neutral changes, one Mississippi legislator candidly admitted, would “preserve our way of doing business.”109
Chief Justice Earl Warren certainly thought so and, in one of his court’s last decisions, he pushed back hard. It was clear that Mississippi and Virginia believed that as long as they weren’t restricting access to the polls via a literacy test or poll tax, every other change they made was beyond the scope of the VRA. The U.S. Supreme Court strongly disagreed. Voting is not just the act itself, Warren chided, but includes “all action necessary to make a vote effective.” Then, to ensure that the range of activities subject to the VRA was clear, he insisted that the Voting Rights Act “was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of race.”110
That hardly settled the issue of course. States and reluctant presidential administrations, Richard Nixon’s and Ronald Reagan’s in particular, were less than enthusiastic about securing the right to vote for those previously denied access to the polls. Entirely willing to dilute and weaken the VRA, these GOP presidents were supported in their efforts by states chafing against the restraints imposed by enforced federal law.111
In those challenges were the seeds of 2013, when the U.S. Supreme Court, in Shelby County v. Holder, looked at the VRA, “the most effective legislation ever passed by Congress,” and proceeded to eviscerate that law.112 Many of the arguments that Chief Justice John Roberts made at that time had already, over the course of several decades, been carefully crafted, reframed, and stacked to wall off the ballot box from millions of American citizens.
These arguments began shortly after the law’s passage. Justice Hugo Black’s lone dissent in the 1966 South Carolina v. Katzenbach case went directly after one of the core components of the VRA: preclearance. Justice Black argued that Congress had overstepped its authority “by providing that some of the States cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities to approve their policies.” That preclearance proviso, he argued, “so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless.”113 Of course, Congress had tried in 1867, 1870, 1957, and again in 1960 to put authority for voting, even in federal elections, in the hands of the states. And repeatedly, Mississippi, South Carolina, Georgia, and the usual suspects willfully, deliberately, and painstakingly barred eligible American citizens from the polls. What remedy, then, was available to the federal government for those who mocked the Fifteenth Amendment, skewed and skewered elections, and placed in power those who held the Constitution in contempt? The Supreme Court admitted that the Civil Rights Act of 1957 and 1960 simply did not work:
Litigation has been exceedingly slow, in part because of the ample opportunities for delay … Even when favorable decisions have finally been obtained, some of the States … merely switched to discriminatory devices not covered by the federal decrees, or … enacted difficult new tests designed to prolong the existing disparity between white and Negro registration. Alternatively, certain local officials have defied and evaded court orders or have simply closed their registration offices to freeze the voting rolls.114
Yet Justice Black’s sense of an intrusive, unconstitutional federal leviathan lingered and, over time, gained enormous political strength.115
Ironically, the second element used to wall off the Voting Rights Act was its own success. The impact of the VRA on African Americans was immediate:
In Mississippi, black registration went from less than 10% in 1964 to almost 60% in 1968; in Alabama, the figure rose from 24% to 57%. In the region as a whole, roughly a million new voters were registered within a few years after the bill became law, bringing African American registration to a record 62%.116
In addition, there was a “dramatic” increase in the number and percentage of blacks registered to vote in South Carolina.117 In 1967, Mississippi elected its first African American to office since Reconstruction.118 Those successes, after decades of crushing, brutalizing disfranchisement, led “spokesmen for the white South” during the 1970 VRA reauthorization hearings to “claim … that the law had served its purpose and should be allowed to expire.”119 What was left unsaid, of course, was that the reason the Voting Rights Act worked was the advent of vigorous federal intervention, not because the racism that required the law in the first place had stopped.120
One of the key vestiges of that racism transformed the demographic and geographic composition of the two major parties. The Solid Democratic South dissolved as, ironically enough, Texan Lyndon Johnson lobbied for and signed acts that legally acknowledged the citizenship rights of African Americans. He lamented that his advocacy for the Civil Rights Act of 1964 and the Voting Rights Act of 1965, while the right thing to do, meant that “the Democrats have lost the South for a generation.”121 It would actually turn out to be much, much longer. The GOP quickly adopted the Southern Strategy to woo the white South into the Republican Party. The key was to pitch the GOP’s message and policies as designed to short-circuit the civil rights gains of African Americans and, equally important, to cast conservative whites as victims besieged by liberalism, minorities, and the Democrats’ big, intrusive government.122
The third element that undergirded John Roberts’s destruction of the Voting Rights Act, then, was the notion that that remarkable piece of legislation had singled out the South. Picked on it even, with a law that was “punitive.” The VRA, in this scenario, was a sentence without a crime. In 1970, Senator Strom Thurmond of South Carolina, one of the most powerful members of Congress and a former presidential candidate for the Dixiecrat Party, insisted that “this act is nothing more than a device created to inflict political punishment upon one section of the country.”123 That haze of victimhood and innocence diffused the hard edges of decades of Election Day terror, literacy tests, poll taxes, and white primaries. And the resultant fog blurred the reality of the systematic disfranchisement of African Americans in which, as late as World War II, fewer than 1 percent of age-eligible blacks were registered to vote in South Carolina. It also occluded the active leadership role the state took from 1944 to 1952 in circumventing the Smith v. Allwright decision and providing a “model for other Southern States seeking to keep their party affairs free from Negro participation.”124 And although the VRA had had an impact, by 1970, only “28 percent of blacks were registered in Thurmond’s home of Edgefield County, compared with 96 percent of whites.”125 Yet five years later, the senator still complained about the very existence of the law. The “so-called voting rights act,” he railed, “should be allowed to expire unceremoniously.” He then added that the VRA was “unconstitutional” because its supporters “were guilty of discrimination” against the South. The sense that Dixie had changed, had stopped encouraging sheriffs to beat down African Americans who wanted to register to vote, meant that there was no need for this “unfortunate” law.126
The Old South was still there, of course—just in a new dress. In 1971, Mississippi wanted to redesign its primaries and redraw district boundaries, and argued that its new and improved election plans required only that residents in “a third of Mississippi’s counties—constituting 40 percent of the state’s black voters”—re-register.127 The state had pulled this stunt before. Prior to the Brown decision, the NAACP had mounted a serious voter-registration campaign in the state and, despite the odds, achieved measurable results. After Brown, however, Mississippi passed a law in 1955 requiring every registered voter to go through the gauntlet the state had created, which included heightened literacy and understanding tests, as well as registrars who understood their orders as if Theodore Bilbo was there barking out instructions on how to stop blacks from voting. Not surprisingly, the number of African American voters plummeted by two-thirds.128
Sixteen years later, Mississippi tried, once again, to send black citizens through an impenetrable reregistration process. This time, however, after intense wrangling, the Department of Justice and the Voting Rights Act stopped the Magnolia State.129 Not that this dissuaded others from testing how far the VRA could be stretched to stay just on this side of the Fifteenth Amendment, maintain the facade of race-neutral innocence, and still achieve the goal of disfranchisement, which is exactly what Alabama accomplished in 1981 with the acquiescence of Reagan’s Department of Justice. The state passed a “reidentification” bill that purged the voting rolls in three counties with sizable black populations and required previously registered voters to go to the courthouse to identify themselves. African American registration dropped by 43 percent.130
The fourth element, then, was an especially pernicious lie that hovered like a storm cloud over the VRA and became darker and more threatening as black political power grew. Key segments in the criminal justice and political system, especially as the nation made a right turn during the Reagan years, insisted that the real violators were not the states at all but actually African Americans who committed outright voter fraud.131 Hank Sanders had witnessed this vicious scenario play out. Whenever blacks won political office or started to assert their voting rights, he remarked, the prosecutor’s office would launch an extensive investigation. This move had but one purpose: intimidation. “Every time people start investigating you,” he explained, “you start drawing back and decide no matter how right you are to leave that alone,” because if you don’t, the criminal justice system will rip you apart for simply exercising your voting rights.132
In 1979 two black women, Julia Wilder and Maggie Bozeman, felt the full wrath of Alabama’s legal system. Wilder, the sixty-nine-year-old president of Pickens County Voters League and an officer of the Southern Christian Leadership Conference (SCLC), had been hard at work to make the Voting Rights Act a living, viable document in rural Alabama. By the late 1970s, no African American had ever been elected to office in Pickens County, which was 42 percent black. Joining Wilder in this work was fifty-one-year-old Maggie Bozeman, president of the local NAACP branch. They had collected absentee ballots from more than three dozen elderly and disabled African Americans, had those forms certified as valid by the local funeral director, who was a notary, and sent those ballots in to the Board of Elections.
That’s when the trouble began. Later that year, Sophie Spann, an African American woman, went down to the local grocery store to cast her vote in the election and was turned away because, the election official said, she had already voted absentee.
That set off an investigation by the Pickens County district attorney followed by a tumultuous, haphazard trial that was so riddled with holes and contradictions that the appeals court labeled the key witnesses’ testimony “confusing,” “conflicting,” and an indecipherable “hodgepodge.” Of the thirteen “victims,” the only one who remained steadfast in insisting that her vote was stolen was Sophie Spann, who just happened to have “reared the sheriff’s deputy and son-in-law” and who was brought lunch by the sheriff personally before she took the stand. Based on Spann’s testimony alone, both women were found guilty by an all-white jury, whose verdict was upheld by the appeals court. Bozeman received a four-year prison sentence, and Wilder got hit with the maximum, five years, which for a sixty-nine-year-old could easily be a life sentence. These were “the stiffest [sentences] ever given in an Alabama voting fraud case.”133 The SCLC president, the Reverend Joseph Lowery, wailed that Bozeman and Wilder were “politically lynched.”134
But as far as the white power structure in Pickens County was concerned, these women had gotten just what they deserved. Bozeman and Wilder, community leaders who insisted that African Americans had rights, including the right to vote, had “guts” and “nerve.” And that, remarked the newspaper editor, “brought out the worst in white people.” “If they could get out and march at their ages,” sneered one deputy, “they could have done just fine in jail.” Robert Kirksey, a county commissioner, complained, “They constantly harassed public officials … they were always creating disturbances” by showing up at every county commission and school board meeting and having the audacity to ask questions of elected officials.
The two activists had pushed for and won better wages for sanitation workers and to have the roads paved “on the black side of town.” But they weren’t done. Wilder’s commitment to black voting rights was unshakable. If it meant giving someone her last fifty cents “to get to the polls,” she was going to do it. If it meant teaching a civics lesson to those who had been beaten down for so long that they didn’t think their vote mattered, she had no problem with that either. Wilder would answer the defeated refrain of “It don’t make much difference how I vote, the white folks will do what they want anyway,” with a self-empowering rejoinder: “Because we let them.” Community self-respect, she taught, was inextricably tied to the vote. And that sense of political awareness and backbone led Bozeman to declare and warn, “If you teach black people to stand up for their rights in Pickens County, white folks will starve you out, or suffer you so until you move out of town.” She knew it and African Americans knew it, too.
One black resident simply said of Maggie, “She made white folks mad.” For many in the black community, therefore, the district attorney going after Bozeman and Wilder was nothing but retribution “for trying to make democracy work.”135 The sheriff disagreed vigorously. There was no need for what “those women” did. African Americans had it good in Pickens County. “We have a policy of not beating ’em,” he bragged, “We treat ’em right. We don’t run over ’em just because they are black.” But the message was also clear: If they’re black and, as one African American woman pointed out, “promote better living for colored” people, the full force of the state’s legal machinery would hound, harass, and imprison them for helping the disfranchised vote.136
In 1985, U.S. attorney Jefferson Beauregard Sessions III slapped three civil rights workers, including a former aide to Martin Luther King, with a twenty-nine-count indictment for forging or changing and then mailing bogus absentee ballots. Albert Turner Sr. was the primary target. He had come to the voting rights battle in the early 1960s when, even as a college-educated man, he failed Alabama’s literacy test.137 Infuriated, and “determined to be free,” Turner began the long, hard work of grassroots organizing.138 He was knee-deep in the battles in Selma. He led the mule train that carried Martin Luther King’s body to its final resting place. He formed the Perry County Civic League to register more African Americans to vote and change what democracy looked like in Alabama.
Working with his wife, Evelyn, and a colleague, Spencer Hogue, Turner noticed that despite the VRA, and despite the large number of African Americans in the state’s Black Belt counties, whites consistently won every election. As he dug deeper, he learned that the difference was the sheer volume of absentee ballots coming in from whites who were landowners in Perry, Lowndes, and other counties but lived in Birmingham, Chicago, and beyond. They, in fact, were strongly and actively encouraged by election officials in the Black Belt, including Perry County, to use absentee ballots to keep the political power in white hands. White candidates, as historian Allen Tullos observed, “found electoral deliverance inside dependable absentee voting boxes.”139
Turner believed he had now cracked the code. Years of registering blacks to vote, especially in a county that was 60 percent African American, and years of encouraging black candidates to run for office, yet still to have all the elected officials be white, came down to, he grasped, absentee ballots. This was a device that blacks didn’t use extensively, certainly not like other voters did. Yet Perry County was prime for it. One-third of African American adults who lived there actually worked in another county. In addition, 15 percent of black residents were over sixty-five years old. In short, 48 percent of the black vote was already in jeopardy because of employment obligations and a lack of mobility. Then, to make the likelihood of their voting even more difficult, the polls were open for only four hours in the afternoon on Election Day.140 If blacks could not vote because of their work schedule, distance to the polls, or limited mobility during that narrow four-hour window, then, Turner concluded, the absentee-ballot procedure would solve the problem. He went to the Alabama attorney general’s office for training sessions and then began to apply that knowledge in Perry and surrounding counties. Not surprisingly, Election Day 1982 brought a very different result. African Americans won their first positions on the school boards and county commissions.141
Those victories “put the old-guard white elite on the defensive.”142 Or, more accurately, on the offensive. The Perry County district attorney was convinced there was fraud and, more important, that Turner and his group committed it. The D.A. quickly informed the U.S. attorney, Jeff Sessions. When the next primary rolled around in 1984, Sessions called in the FBI to tail the Turners and Spencer Hogue. As the civil rights workers mailed hundreds of absentee ballots that they had collected (mostly from the elderly), the agents, who had been hiding in the bushes, rushed to the mailbox, seized the ballots, and, after picking through them, believed they had identified seventy-five that had been tampered with. Sessions, then, identified the victims of the alleged voter fraud, moved them south to Mobile, and interviewed them there.143
One way to see this effort is through the gauze of colorblind justice, which would depict Sessions as an efficient U.S. attorney: Seeing a potential problem, he moved to secure the rights of voters by secreting them 160 miles away from the power base of the man who may have violated their rights. Sessions also painstakingly gathered the evidence he needed to make sure that identity and ballot fraud had not sullied Alabama’s elections.
But that’s not at all what happened, despite his subsequent denials.144
Instead, Sessions was “someone who thinks that the VRA ought not to have ever been in existence” because, for him, it was an “intrusive piece of legislation.”145 Thus, in a move that flipped the Voting Rights Act on its head, his investigation targeted only counties where African Americans had won office. He deliberately ignored districts that maintained white political control via absentee ballots and summarily dismissed evidence of irregularities in those votes as not being “credible.”146 He then rounded up twenty elderly blacks and had Alabama state troopers drive them away from their community, into a predominately white area to be fingerprinted, photographed, and grilled before a grand jury. Every step of this process was designed to intimidate, especially those who were more than aware of what sheriffs, police, and Alabama state troopers, with the acquiescence of the FBI, had done to black people who had dared to vote. Reverend O. C. Dobynes recalled that long, “degrading” bus ride to Mobile and all that followed: “To me, it was just simply saying, ‘We are going to scare you into saying what we want you to say.’ ” It worked. Fannie Mae Williams told the grand jury that this was her “first and last” time voting using an absentee ballot. Two others were even more emphatic: “They were done with voting.” Period.147 And as Ari Berman reports, “Ninety-two-year-old Willie Bright was so frightened of ‘the law’ that he wouldn’t even admit he’d voted.”148
Even when the judge threw out most of the charges and the jury came back with a “not guilty” verdict on the few remaining counts, the damage had been done. Both the trial of the Marion Three and that of Bozeman and Wilder signaled how to use “the criminal processes … to slow down the development of progressive black leadership.” And it laid out how to marshal the forces of legal intimidation to trigger communal memories of brutality, Jim Crow, and disfranchisement.149 Even years after her ordeal with Jeff Sessions, Evelyn Turner declared, “I’ll never forget, as long as I stay black.”150
The fifth element that laid the groundwork for gutting the Voting Rights Act was the ease with which the U.S. Supreme Court overturned a federal election, ignoring blatant violations of the Fifteenth Amendment and swaddling it all in the language of the Fourteenth Amendment’s equal protection clause. It demonstrated how far the court’s slim majority would go to create a political outcome, despite all the evidence.
This happened in 2000, of course, when the presidency hung by a chad. Republican George W. Bush and Democrat Al Gore, with forty-nine states having tallied their ballots, were suddenly in a virtual tie, such that whoever won Florida’s twenty-five Electoral College votes would become president of the United States.
Florida, however, was a festering election cesspool—as racially backward as it was bureaucratically inept. Secretary of State Katherine Harris had used faulty data to purge approximately twenty thousand names, mostly of blacks and Hispanics, from the voter rolls.151 In polling stations in Jacksonville’s black neighborhoods, police officers stationed themselves conspicuously around the buildings and at entry points as if this were Mississippi in the 1950s all over again. In other cases, voters who knew they were registered learned on Election Day that their names were nowhere to be found on the registrar’s list. Poll workers could not get in touch with election officials to do any kind of verification because the phone lines were jammed. There was a more effective method via laptop computers; however, those were placed in predominately white, Republican precincts. There was also a limited number of working voting machines in polling stations that had sizable minority populations. In some areas, none of the machines tallied even one vote for a presidential candidate. Not one. And then there were the hanging chads. Some of the voting machines punched a hole next to a candidate’s name, others made a dent, while others left the little circular piece of paper dangling.152
Florida in 2000 was, without question, a perfect storm of incompetence and Election Day treachery. Unfortunately, there was a presidency hanging in the balance and the final tally, even with the massive disfranchisement effort to keep blacks and Hispanics from voting, was still too close to call. The voting machines, unable to get an accurate count, not least because of the ballots with imperfect chad punches, were blamed. Gore therefore requested a hand recount. And that’s when the momentum swung, as Bush’s margin of victory began to shrink rapidly, from 1,784 votes to 327, then to 154.153
It was at this nail-biting moment that the U.S. Supreme Court stepped in, overruling Florida’s highest court, and ordered that the recount stop. Five conservative justices, who often denounced what they called an activist judiciary, and federal overreach in general, now ruled that Florida did not have the right to count the ballots in the election held in its own state.154 In fact, no entity could tally those votes. The recount violated the Fourteenth Amendment’s equal protection clause, the justices contended, because the process was for those counties with numerous electoral failures and, therefore, some people, somehow, somewhere (that would be in those counties where the polling machines actually worked) weren’t going to have their votes counted again.
The inanity of the argument was “so brazen a departure for the conservatives and so ferocious an assault on … conventional … doctrinal understandings” about federalism and originalist constitutional philosophy that it defied logic. That is, until it became clear that this was about one thing and one thing alone: putting Republican George W. Bush in the White House.155 Prominent lawyer Vincent Bugliosi called it a “judicial coup d’etat.”156
That 2000 presidential election set the stage for the sixth component that Roberts would use to undermine the Voting Rights Act. Over time, more and more members of the U.S. Supreme Court had begun to openly question the constitutionality of preclearance.
The election, and particularly how it was won, had driven home how racially polarized and divided the electorate was.157 George W. Bush, however, didn’t believe the situation was hopeless. While only 9 percent of African Americans voted for him, 35 percent of Hispanics had cast their ballot for Bush.158 His strategist, therefore, argued that the Republicans could broaden their appeal to minorities and thus avert the demographic apocalypse that awaited a party that was nearly 90 percent white. In addition to immigration reform, one of his key strategies was to have full White House and bipartisan support for the 2006 reauthorization of the Voting Rights Act.159
Aided by a phalanx of civil rights organizations, Congress amassed and reviewed reams of research and data on discrimination in voting, and with a 390–33 vote in the House of Representatives and 98–0 vote in the Senate, reauthorized the Voting Rights Act for another twenty-five years.160 Many of the VRA’s original or subsequent features still remained, including “target[ing] the same states and counties for special coverage, while preserving both Section 5 preclearance requirement and the language assistance provisions,” which had arisen during the 1982 reauthorization hearings to acknowledge the documented attempts to disfranchise Latinos.161
Barely a week after the bill passed, however, a small, recently formed municipality in Texas sued, alleging that because it did not have some sordid history of racial discrimination, it should not have to abide by the preclearance statute just because it was located in the Lone Star State. In short, city officials argued, Texas had a history of discrimination. Not the Northwest Austin Municipal Utility District Number One (NAMUDNO). The lawsuit argued more than that though. NAMUDNO depicted the Voting Rights Act as a dinosaur that should be as extinct by now as the forces that had once created it. The suit charged that “racial discrimination was no longer the problem it had been in 1965 and that Section 5 imposed unfair and unnecessary burdens on the jurisdictions that it covered.”162
The court wasn’t quite ready to go that far. At least not yet. While allowing the Voting Rights Act to stay in place for now, key members of the court, especially Chief Justice John Roberts, signaled discontent with what they saw as a stagnant VRA, which failed to take into account that Jim Crow was dead and America had moved on. This was not 1899, after all, or even 1969.
Long an opponent of the Voting Rights Act, Roberts had clerked under Justice William Rehnquist, whose initial foray into voting rights prior to his ascent to the Supreme Court included a project to purge as many minorities as possible from voting rolls in Phoenix.163 Rehnquist’s appointment to the bench only strengthened that resolve. In one case, the U.S. Supreme Court had overturned a multiyear scheme in Rome, Georgia, that, without gaining preclearance approval, repeatedly annexed white areas to the city to reduce the electoral potential of black voters. Rehnquist was unfazed by the city’s (illegal) actions and instead depicted the VRA as simply African Americans’ way to get revenge on the heirs of slaveholders. “The enforcement provisions of the Civil War Amendments [Fourteenth and Fifteenth],” he wrote in his dissent, “were not premised on the notion that Congress could empower a later generation of blacks to ‘get even’ for wrongs inflicted on their forebears.”164
This was the man who served as an ideological light for John Roberts. “Rehnquist reinforced John’s preexisting philosophies,” observed a colleague clerking for another justice. “John was not a believer in the courts giving rights to minorities and the downtrodden. That was the basic Rehnquist philosophy.” The framing of the Rehnquist-Roberts philosophy is key. Note that the word used is “giving” instead of simply recognizing that minorities have rights. Thus Roberts’s subsequent stint in Reagan’s Civil Rights Division of the Department of Justice honed his antipathy to the VRA. “John seemed like he always had it in for the Voting Rights Act,” remembered J. Gerald Hebert, one of the chief litigators for the DOJ on voting. “I remember him being a zealot when it came to having fundamental suspicions about the Voting Rights Act’s utility.”165
Adding to Roberts’s disdain was the way Congress, during its 1982 reauthorization of the Voting Rights Act, wiped away an earlier court ruling that required the Department of Justice to prove that there was a deliberate intent to discriminate in order for there to be a VRA violation. That decision said that prima facie evidence of discrimination was not enough, even when staring right at a city like Mobile, Alabama, which was 35 percent black and had never—even after the VRA—elected any African American as a city commissioner. Instead, the court ruled that the DOJ would have to prove that officials in Mobile deliberately crafted the voting requirements to dilute the electoral strength of its black population. Intent, of course, was nearly an impossible threshold of proof, requiring racially explicit memos or taped conversations, especially in an era that was so consciously colorblind but race-aware.166
The 1982 reauthorization of the VRA removed Roberts’s beloved “intent to discriminate” standard, which led him to predict, insist even, that the Voting Rights Act would require election results ruled by quotas and affirmative action.167 But as Berman noted, “In the seven southern states originally covered by the VRA … blacks made up 25 percent of the population but held only 5 percent of elected seats.” Roberts’s fears were just that, fears. “In a lot of cases … there were no blacks elected,” said civil rights lawyer Armand Derfner. “We were trying to get from none to some.”168 Roberts didn’t see the virtual shutout in many municipalities and counties; instead he focused on districts such as Atlanta and Houston, which had elected African Americans and Latinos, and, therefore, to him it was unfair that Georgia and Texas remained under the preclearance provisions.169
Thus, when NAMUDNO v. Holder was decided in 2009, years of doubt about the Voting Rights Act, years of questioning whether racism existed anymore, came to a boil. “Since 1982,” Roberts wrote in his decision, “only 17 jurisdictions—out of the more than 12,000 covered political subdivisions—have successfully bailed out of the Act.” That only seventeen had been able to prove they no longer discriminated against their minority populations’ voting rights and thus no longer needed federal oversight seemed absurd to Roberts. He, of course, did not reckon with the fact that places in Georgia and Alabama such as Pickens County, Perry County, Rome, and others had repeatedly tried to disfranchise American citizens despite the Fifteenth Amendment, and that is the reason only seventeen jurisdictions had been released from scrutiny in more than four decades. Instead, came the court’s warning shot: seventeen was not enough. “It is unlikely that Congress intended the provision to have such limited effect.”170
Thus, when the commissioners in Shelby County, Alabama, challenged the Voting Rights Act by outright defying it, the U.S. Supreme Court was already primed and just waiting for a test case. Calera City, Alabama, had a city council that included one African American councilman. His district was 65 percent black, in a city that was over 30 percent African American. Then the commissioners in Shelby County began annexing land surrounding Calera City, and with each annexation they began to redraw the electoral districts, so much so that the black councilman’s district population shrank from 65 percent African American to 29 percent. Running now in a predominately white district, where more than three-fourths of the electorate voted against Barack Obama, the lone black councilman lost the next election.171
This was not the first time that the Supreme Court had dealt with the redrawing of a city’s boundaries designed to dilute the voting strength of a town’s black population. In the late 1950s, African Americans in Tuskegee, Alabama, had begun, against all odds, to amass some semblance of voting strength. The state legislature quickly countered by annexing plot after plot of land surrounding Tuskegee until the town’s perfectly symmetrical square boundaries had been horribly disfigured into a twenty-eight-sided blob. But this is exactly what it took to remove all but four or five of the four hundred voting-age eligible African Americans from the city and ensure that no white voter was excluded. Alabama argued that it had the authority to change its city boundaries whenever and however it chose and it didn’t need a reason. Justice William O. Douglas explained how mistaken Alabama truly was. He systematically laid out how the state, despite multiple queries, could come up with no viable reason for its actions. There was only one way to explain why four hundred black voters became a mere four or five, to explain why a perfectly logical city boundary devolved into one with twenty-eight sides, to explain why, even with all those changes, Tuskegee did not lose one white voter. Alabama had set out to strip African Americans of their right to vote. And that, Douglas insisted, violated the Fifteenth Amendment.172
Fifty-three years later, Chief Justice John Roberts looked directly at a similar situation where county commissioners in Alabama had annexed plot after plot, redrew boundaries, diluted the voting strength of black voters, and, this time, did so in violation of the Voting Rights Act. Unlike before, however, the Supreme Court, in a 5–4, decision, ignored all the evidence and drew instead upon the arguments hurled against the VRA since 1966. Refrains about states’ rights, black electoral success, regional discrimination, the end of racism, and the seeming calcification of the VRA became the key elements in the decision penned by Chief Justice Roberts in Shelby County v. Holder.
The court decided that the VRA was unfair because it singled out and punished the South (which obviously meant whites in the South), unfair because the 2006 reauthorization included the same states and counties as in the original bill, unfair because blacks had won multiple elections and were voting in record numbers, and thus unfair because the racism of the past, which had led to the creation of the VRA, obviously no longer determined access to the polls. The Shelby County v. Holder decision thus gutted Section 4 of the Voting Rights Act, which determined which locales came under federal oversight. With that, GOP-led states, as if this were Alabama in the early 1980s, asserted that it was actually voter fraud, not voter suppression, that required the full machinery of government to eradicate.173
Therefore, 2016 was the first federal election in fifty years held without the protection of the Voting Rights Act. As a result, the rash of voter ID laws, purged voting rolls, redrawn district boundaries, and closed and moved polling places were the quiet and barely detected fire that burned through the 2016 presidential election, evaporating millions of votes and searing those who hadn’t even been under the original VRA.174 In Wisconsin, for example, black voting rates plummeted from a high of 78 percent in 2012 to less than 50 percent in 2016. In Milwaukee County, which is overwhelmingly African American, fifty thousand fewer votes were cast in a state that Donald Trump won by only twenty-seven thousand ballots.175 Meanwhile, Republican officials in North Carolina congratulated themselves that “African American Early Voting is down 8.5% from this time [four years earlier] in 2012.”176
Not only had the tide of expanding the franchise and the robustness of American democracy apparently turned, but its ebb continued. During the 2017 special congressional election in an Atlanta suburb, for example, the Christian Science Monitor asked, “What’s behind fewer African-American voters at the polls?” Polling expert Nate Silver was puzzled; the 14 percent drop-off in the number of blacks voting had been even greater than expected.177
It’s puzzling only if you don’t understand how the various methods of voter suppression actually work.