Voting Rights at a Crossroads


line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”>Introduction

African Americans secured the right to vote in 1870 with the ratification of the 15th Amendment of the U.S. Constitution, the third of what is known as the Civil War or Reconstruction Amendments. Yet despite the 15th Amendment’s clear language prohibiting discrimination in the vote “on account of race, color or previous condition of servitude,” 95 years would pass before the Voting Rights Act of 1965 gave African Americans the right to vote in a meaningful way.

The battle to ensure that the language of the 15th Amendment was not just empty sentiment began well before the 1963 March on Washington for Jobs and Freedom, a pivotal event in American history. However, the success of the march inspired civil rights leaders to pursue a meaningful right to vote for African Americans—and other rights long denied—with renewed vigor. Their determined campaign resulted in the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, seminal pieces of legislation that transformed American democracy (National Commission on the Voting Rights Act 2006, 2).

This paper discusses the struggle to achieve voting rights in the decades before and after the 1963 March on Washington and the present day uncertainty over retaining the rights that have transformed American democracy given the recent Supreme Court nullification of Section 5, one of the most important provisions of the Voting Rights Act (Hill 2013).

Specifically, as this paper explains:

  • mso-fareast-font-family:"Times New Roman";mso-bidi-font-family:"Times New Roman"”>In the near century between when African Americans won the right to vote in 1870 and the March on Washington for Jobs and Freedom, poll taxes, literacy tests, and other restrictive local and state laws consistently prevented African Americans from being able to vote.
  • mso-fareast-font-family:"Times New Roman";mso-bidi-font-family:"Times New Roman"”>In 1962, the year before the march, only 1.4 million of the more than 5 million blacks of voting age living in the South’s 11 states were registered to vote.
  • mso-fareast-font-family:"Times New Roman";mso-bidi-font-family:"Times New Roman"”>In 1964, in the five southern states of Alabama, Georgia, Mississippi, North Carolina, and South Carolina, only 22.5 percent of voting-age African Americans were registered to vote. Particularly troubling, in Mississippi, only 5.1 percent of voting-age African Americans were registered, compared with 94.9 percent of whites.
  • mso-fareast-font-family:"Times New Roman";mso-bidi-font-family:"Times New Roman"”>In 1965, only 1.9 percent of eligible blacks in Selma, Alabama, were registered to vote.
  • mso-fareast-font-family:"Times New Roman";mso-bidi-font-family:"Times New Roman"”>The organizers of and participants in the March on Washington for Jobs and Freedom were fully aware the right to vote was not only an end in itself but critical to the economic goals of the march, as limited political representation responsive to their needs exacerbated their already-great inequalities in employment and education.
  • mso-fareast-font-family:"Times New Roman";mso-bidi-font-family:"Times New Roman"”>The March on Washington demonstrated the massive support for the passage of civil rights legislation that would remove the barriers faced by African Americans, including those that denied their right to vote. The struggle for the right to vote would result in the passage of the Voting Rights Act of 1965.
  • mso-fareast-font-family:"Times New Roman";mso-bidi-font-family:"Times New Roman"”>The Voting Rights Act of 1965 (the VRA) transformed American democracy. Section 2, which prohibits voting laws that are discriminatory in intent or in practice nationwide, has resulted in hundreds of successful challenges to discriminatory election procedures or structures in counties across the country. For example, Section 2 litigation transformed at-large election districts that denied minority voters the opportunity to elect their candidates of choice into single-member districts that allowed for such opportunity. Section 5, the “preclearance provision” which requires that jurisdictions with a history of discrimination (as determined by a “coverage formula”) obtain federal approval before changing any voting laws, has blocked thousands of racially discriminatory voting changes before they came into effect. The Supreme Court noted in the recent decision striking down the Voting Rights Act’s coverage formula (Shelby Cnty., Ala. v. Holder) that the Voting Rights Act played a large part in boosting voter registration and turnout in the covered jurisdictions. However, the court also acknowledged that discrimination in voting continues to exist.
  • mso-fareast-font-family:"Times New Roman";mso-bidi-font-family:"Times New Roman"”>Today, 68.4 percent of African Americans are registered to vote.
  • mso-fareast-font-family:"Times New Roman";mso-bidi-font-family:"Times New Roman"”>One area in which the VRA has not been successful is in addressing the disproportionate impact of the nation’s felony disenfranchisement laws on minorities. Of the 5.85 million Americans who have lost their right to vote because of a felony conviction, 2.2 million (37.6 percent) are African American (Chung 2013, 1–2). In contrast, African Americans make up 13 percent of the total U.S. population (U.S. Census Bureau 2012). Overall, 7.7 percent of African Americans are disenfranchised because of felony convictions, compared with 1.8 percent of non–African Americans (Uggen et al. 1–2).
  • mso-fareast-font-family:"Times New Roman";mso-bidi-font-family:"Times New Roman"”>The 2013 Supreme Court decision (Shelby Cnty., Ala. v. Holder) striking down the coverage formula that determines which states are subject to Section 5 imperils African Americans’ hard-fought access to the ballot. Congress must pass bipartisan legislation that ensures that the goals of the Voting Rights Act are fulfilled. As U.S. Attorney General Eric Holder has noted, many pieces of state legislation concerning election administration or the creation of electoral districts that were previously subject to the “potent tool” of preclearance review to ensure that there was no racially disproportionate impact now go unchecked.

When Barack Obama was elected president of the United States, many prematurely heralded the arrival of post-racial America. But the disproportionate impact of suppressive voting laws, such as felony disenfranchisement laws, on African Americans, coupled with the response by some states to the recent gutting of essential provisions of the Voting Rights Act, mean that the quest for full voting rights continues.

line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”>Voting rights in the decades leading up to the march

After the 15th Amendment was ratified in 1870, some state legislatures, primarily in the South, began to pass laws preventing African Americans from voting. These laws included poll taxes, literacy tests, understanding tests, requirements that a white citizen serve as a reference for voter registration, or requirements that disenfranchised anyone of “bad character.” Additionally, in states such as Louisiana, the “White Citizen Council” purged registered African Americans for any paperwork irregularities (Keyssar 2000, 207). Whites were generally exempted from these laws through the application of grandfather clauses, which applied to citizens registered to vote before the laws were passed as well as their descendants (U.S. Commission on Civil Rights 1965, 7).

In 1915, the Supreme Court struck down grandfather clauses as a violation of the 15th Amendment. The case, Guinn v. United States, dealt with a challenge to an amendment to the Oklahoma state constitution that added a literacy test for voting, but exempted those who were entitled to vote on January 1, 1866, or their lineal descendants.1

In response to the Guinn decision, the Oklahoma legislature passed a voter registration law that limited registration to the period between April 30 and May 11, 1916, with an extension to June 30, 1916, for those who met certain conditions. Those who failed to register during this 12-day period permanently lost the right to register and accordingly, to vote.2 In 1939, “reluctantly” striking down this law in Lane v. Wilson, the Supreme Court noted that the 15th Amendment “nullifies sophisticated as well as simple-minded modes of discrimination . . . .”3

In 1944, the Supreme Court struck down a Texas law that prohibited blacks from voting in primary elections, stating that “[t]he United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any state because of race.”4

Despite these rulings, states steadfast in their determination to deny blacks the right to vote continually undermined the promise of the 15th Amendment with laws imposing poll taxes, literacy tests, and other discriminatory voting requirements. By the mid-1950s it was clear that even if a discriminatory state law was overturned by successful litigation, the state would just replace it with another discriminatory law. Therefore, federal legislation was needed to prohibit such laws from being enacted or implemented.

The first attempt at such a law was the passage of the Civil Rights Act of 1957. In his 2002 book Master of the Senate, Robert Caro noted that then–Senate Majority Leader Lyndon Johnson determined that passage of civil rights legislation that struck down voting barriers would serve his presidential ambitions.5 Johnson was successful in convincing Congress to pass a compromise civil rights bill with voting rights provisions that prohibited intimidation of voters, gave the U.S. attorney general the authority to bring cases against discrimination in federal court, and provided free counsel to any person “cited for an alleged contempt under the Act” (P.L. 85-315). However, these provisions proved ineffective at stopping voting discrimination, and several courts found the 1957 act unconstitutional.6 Although court decisions finding the act unconstitutional were later overturned by the Supreme Court (United States v. Raines and United States v. State of Ala.), federal litigation enforcing the provisions of the act continued to be a slow and frustrating process.7

Congress enacted the 1960 Civil Rights Act to address the limitations of the 1957 Act. The 1960 act required the retention of election records; gave the U.S. Commission on Civil Rights, created under the 1957 act, the authority to administer oaths; and made states liable for the actions of state officials. Some successful litigation resulted from the passage of the 1960 law, but again, the process was slow, expensive, and limited.8

line-height:150%;font-family:"Verdana","sans-serif";mso-fareast-font-family:
"Times New Roman";mso-bidi-font-family:"Times New Roman"”>The March for Jobs and Freedom and the road to the Voting Rights Act

On the eve of the March on Washington for Jobs and Freedom, it was clear that despite legislation to secure voting rights and litigation chipping away at the barriers to vote, African Americans were consistently denied access to the ballot. Indeed, in the year before the march—when the Student Nonviolent Coordinating Committee (SNCC) started its Voter Education Project—only 1.4 million of the more than 5 million blacks of voting age living in the South’s 11 states were registered to vote (Wexler 1993, 197).9

In 1964, in the five southern states of Alabama, Georgia, Mississippi, North Carolina, and South Carolina, only 22.5 percent of voting-age African Americans were registered to vote. In comparison, white voter registration rates in these states were upwards of 80 percent (including Alabama and Mississippi at over 90 percent) and 65 percent across the South. Particularly troubling, in Mississippi, only 5.1 percent of voting-age African Americans were registered, compared with 94.9 percent of whites.10 (Davidson and Grofman 1994)

Due in part to the limited political representation responsive to their needs, African Americans also suffered great inequalities in employment and education. A 1963 Census report found that African Americans’ economic status had deteriorated since World War II (Graham 1990, 101).11 Similarly, despite the Supreme Court ruling in Brown v. Board of Education that segregation in schools was unconstitutional, progress in integrating schools stalled (Zelden 1999, 471).12

To bring attention to the inequalities suffered by Negroes, as African Americans were called at the time, union leader A. Philip Randolph revived his 1941 call for a March on Washington.13 The idea appealed to the civil rights leaders of the day, and the resulting March for Jobs and Freedom refueled the civil rights movement’s resolve to pass a voting rights law that delivered on the promise of voting rights for all. The over 200,000 marchers who converged on the mall in Washington, D.C., were fully aware that the right to vote was inextricably tied to overcoming the socioeconomic problems they endured.

Following the march, civil rights groups joined forces to launch a campaign to bring attention to longstanding efforts to disenfranchise blacks and counter the suggestion that blacks were unregistered because they did not want to vote. The Mississippi Freedom Summer Project recruited volunteers from across the country to help blacks in Mississippi register to vote. During the campaign, three volunteers were murdered and became symbols of the price that those who fought to overcome discriminatory laws sometimes paid. Andrew Goodman, James Chaney, and Michael Schwerner were captured and killed while driving through Philadelphia, Mississippi, when working to register voters (Wexler 1993, 198–200). Their deaths in June 1964 gained nationwide attention and illustrated the vicious resistance to the struggle for the right to vote. The following month, Congress passed the Civil Rights Act of 1964, which prohibited discrimination in voting rights, public accommodations and facilities, education, employment, and federally assisted programs. It also amended the procedures and duties of the U.S. Commission on Civil Rights. However, although the act outlined how literacy tests should be administered for voting in federal elections, much more was needed to end voting discrimination.

In January 1965, the Southern Christian Leadership Conference (SCLC) under the leadership of Martin Luther King Jr. joined forces with the SNCC and its dynamic president, John Lewis, to raise awareness of widespread voter discrimination. This new coalition decided to focus the nation’s attention on Selma, Alabama, and its dismal record of voting rights as indicated by the fact that only 1.9 percent of eligible blacks were registered to vote. The events in Selma would prove pivotal to the passage of the Voting Rights Act. (Kotz 2005, 255)

On March 7, 1965, as they began a march from Selma to Alabama’s capital, Montgomery, Lewis and other civil rights leaders in the front found themselves “trapped between the six hundred protesters behind them and the troops who now swept over them, nightsticks flailing” (Kotz 2005, 283). A horrified nation watched the brutal beating of the marchers on television and,

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