A Dream Undone: Inside the 50-year campaign to roll back the Voting Rights Act

Jim Rutenberg, A Dream Undone: Inside the 50-year campaign to roll back the Voting Rights Act. The New York Times Magazine, 29 July 2015. “On the morning of his wedding, in 1956, Henry Frye realized that he had a few hours to spare before the afternoon ceremony. He was staying at his parents’ house in Ellerbe, N.C.; the ceremony would take place 75 miles away, in Greensboro, the hometown of his fiancée; and the drive wouldn’t take long. Frye, who had always been practical, had a practical thought: Now might be a good time to finally register to vote. He was 24 and had just returned from Korea, where he served as an Air Force officer, but he was also a black man in the American South, so he wasn’t entirely surprised when his efforts at the registrar’s office were blocked.

Adopting a tactic common in the Jim Crow South, the registrar subjected Frye to what election officials called a literacy test. In 1900, North Carolina voters amended the state’s Constitution to require that all new voters “be able to read and write any section of the Constitution in the English language,” but for decades some registrars had been applying that already broad mandate even more aggressively, targeting perfectly literate black registrants with arbitrary and obscure queries, like which president served when or who had the ultimate power to adjourn Congress. “I said, ‘Well, I don’t know why are you asking me all of these questions,’ ” Frye, now 83, recalled. “We went around and around, and he said, ‘Are you going to answer these questions?’ and I said, ‘No, I’m not going to try.’ And he said, ‘Well, then, you’re not going to register today.’ ”

Only about one-quarter of eligible black voters in the South were registered that year [1956], according to the limited records available. By 1959, when Frye went on to become one of the first black graduates of the University of North Carolina law school, that number had changed little. When Frye became a legal adviser to the students running the antisegregation sit-ins at the Greensboro Woolworth’s in 1960, the number remained roughly the same. And when Frye became a deputy United States attorney in the Kennedy administration, it had grown only slightly. By law, the franchise extended to black voters; in practice, it often did not.

What changed this state of affairs was the passage, 50 years ago this month, of the Voting Rights Act. Signed on Aug. 6, 1965, it was meant to correct “a clear and simple wrong,” as Lyndon Johnson said. “Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote.” It eliminated literacy tests and other Jim Crow tactics, and — in a key provision called Section 5 — required North Carolina and six other states with histories of black disenfranchisement to submit any future change in statewide voting law, no matter how small, for approval by federal authorities in Washington. No longer would the states be able to invent clever new ways to suppress the vote…. By 1968, just three years after the Voting Rights Act became law, black registration had increased substantially across the South, to 62 percent….

In the decades that followed, Frye and hundreds of other new black legislators built on the promise of the Voting Rights Act, not just easing access to the ballot but finding ways to actively encourage voting, with new state laws allowing people to register at the Department of Motor Vehicles and public-assistance offices; to register and vote on the same day; to have ballots count even when filed in the wrong precinct; to vote by mail; and, perhaps most significant, to vote weeks before Election Day. All of those advances were protected by the Voting Rights Act, and they helped black registration increase steadily. In 2008, for the first time, black turnout was nearly equal to white turnout, and Barack Obama was elected the nation’s first black president.

Since then, however, the legal trend has abruptly reversed. In 2010, Republicans flipped control of 11 state legislatures and, raising the specter of voter fraud, began undoing much of the work of Frye and subsequent generations of state legislators. They rolled back early voting, eliminated same-day registration, disqualified ballots filed outside home precincts and created new demands for photo ID at polling places. In 2013, the Supreme Court, in the case of Shelby County v. Holder, directly countermanded the Section 5 authority of the Justice Department to dispute any of these changes in the states Section 5 covered. Chief Justice John Roberts Jr., writing for the majority, declared that the Voting Rights Act had done its job, and it was time to move on. Republican state legislators proceeded with a new round of even more restrictive voting laws….

All of these seemingly sudden changes were a result of a little-known part of the American civil rights story. It involves a largely Republican countermovement of ideologues and partisan operatives who, from the moment the Voting Rights Act became law, methodically set out to undercut or dismantle its most important requirements. The story of that decades-long battle over the iconic law’s tenets and effects has rarely been told, but in July many of its veteran warriors met in a North Carolina courthouse to argue the legality of a new state voting law that the Brennan Center for Justice at the New York University Law School has called one of the “most restrictive since the Jim Crow era.”…

I. 1865-1980

1.”States’ Rights”

The fundamental promise of American democracy is that every citizen gets a vote, but delivering the franchise from on high and in the face of violent local opposition has always been a complicated legal proposition. The 13th Amendment [1865] freed the slaves, and the 14th Amendment [1868] gave them citizenship. But the key to Reconstruction was the 15th Amendment, ratified in 1870, which did something far more radical, not just guaranteeing (male) former slaves the right to vote but giving Congress the authority to enforce that right state by state, an authority that to this day many legislators see as a drastic intrusion into local affairs.

The new laws immediately enfranchised more than 700,000 black Southerners. Although blacks made up just 13 percent of the overall United States population, they made up 36 percent of the South’s population and a much higher percentage in some states, including a majority in Mississippi and South Carolina. Their enfranchisement was a shock to the political system that almost exclusively benefited Republicans, the party of Lincoln….

Democrats throughout the South responded to the growing influence of black legislators with a brutal effort to suppress the black vote, enforced by the Ku Klux Klan and its many paramilitary imitators, who kept blacks from election polls at gunpoint and whipped or lynched many who resisted. The Southern Democrats ran on an open message of white supremacy and quickly retook statehouses, city halls and courthouses throughout the South. Within 15 years of the Civil War’s end, Reconstruction was just a memory. What followed was deconstruction: the era of Jim Crow, the poll tax, the literacy test, double primaries and a host of other mechanisms that blocked the black vote. For decades, most black citizens in the South had no practical right to vote….

Beginning in the 1950s, propelled by the Supreme Court’s decision in Brown v. Board of Education to desegregate schools, by modern media portrayals of anti-black violence and by the growing nonviolent resistance movement led by the Rev. Dr. Martin Luther King Jr., Congress began to assert its electoral authority with a series of legislative fixes….

It took the Voting Rights Act [of 1965],…to finally deliver the black franchise, 100 years after it was first promised. Its most extraordinary measure, the one that rankled Southern politicians the most, was Section 5. By naming specific states as bad actors that fell under special federal scrutiny, it was the ultimate affront to states’ rights. But under intense pressure, Lyndon Johnson was able to shepherd the bill into law. Its tough approach to knocking down barriers to voting, combined with a phasing in overseen by federal registrars who signed up voters throughout the South, brought about a sudden and significant increase in black voter registration — in Mississippi, black registration increased to 54 percent from 7 percent within three years. This second Reconstruction, with its second surge of Southern black voters, precipitated a second realignment of the parties, and with it an even more complex legal effort to undermine and ultimately undo the most powerful provisions of the Voting Rights Act….

2. “Evidence of Natural Racial Distinctions”

[In the early 1960s, Jesse Helms, a white supremacist North Carolina politician] became a popular on-air commentator for WRAL-TV, where he inveighed against a civil rights movement that was infested with “moral degenerates” and willfully blind to what he called “the purely scientific, statistical evidence of natural racial distinctions in group intellect.”

II. 1980-2000

3. “Zest for the Colorblind Society”

The 1980 election may have put Reagan in office with an ominous nod to “states’ rights,” but in that same year black voter registration reached 60 percent, black politicians were slowly but steadily winning public office and efforts by ideologues like Helms to undermine the Voting Rights Act had not been able to halt the progress it protected.

But a new threat to the act was just about to arrive in Washington, in the confident person of John Roberts Jr., a superstar young conservative legal scholar who retained the bearing of the prep-school football captain he once was. A Midwesterner from the all-American town of Long Beach, Ind., he graduated early from Harvard summa cum laude and went on to Harvard Law, where he was editor of The Harvard Law Review, before landing a plum Supreme Court clerkship with Justice William Rehnquist, a Nixon appointee.

Rehnquist’s chambers were a haven for aspiring young conservatives, “the closest place to the center of an emerging conservative legal movement,” writes Ari Berman in his new book about the voting rights movement, “Give Us the Ballot.” For years, Rehnquist had openly opposed the major legislative achievements of the civil rights era….

5. “A Vast Voter Registration Machine”

In-person voter fraud — in which you impersonate someone or try to vote more than once, or at all if you are ineligible — is almost entirely nonexistent in the United States. (An exhaustive Loyola Law School study could find only 31 “credible allegations of fraud” in a one-billion-vote sample.) But election fraud — ballot stuffing, vote buying, machine rigging — is not unheard-of, and in that shade of distinction lay an important new development….

(According to N.Y.U.’s Brennan Center, in the United States, various state voting laws have disenfranchised nearly six million felons.)…

The urge to clean up voter rolls is understandable, of course, but in practice it can have an undesirable effect, as the world [learned in 2000]. [Data firm] DBT’s work for Florida [in the late 1990s] entailed combing through the state rolls for possible felons and then forwarding the results to local election officials throughout the state. However, multiple investigations would later determine that DBT incorrectly flagged thousands of people on the lists, and that a disproportionate number of them were black voters, more than 90 percent of whom voted for Al Gore. Estimates for how many of those voters were wrongly turned away from polls range from roughly 1,000 to many times that.

The mishandled felons purge was only one of many mishaps that plagued the presidential election in Florida that year, when some 180,000 votes were rejected because of either poorly designed ballots or challenges from lawyers during the recount. A New York Times review that year found that of the ballots that were thrown out in the Florida election, three times as many came from black voting precincts as from white voting precincts….

8. “A Drastic Departure”

In 2010, Republican legislators — propelled by Tea Party anger, new sources of outside conservative money and a precision plan devised by the strategists Karl Rove and Ed Gillespie — increased the number of statehouses they fully controlled to 25 from 14. In 2011, Alabama, Kansas, Mississippi, Rhode Island, South Carolina, Tennessee, Texas and Wisconsin passed new voter-ID laws. The North Carolina General Assembly passed one that year as well but could not overcome a veto by Gov. Bev Perdue, a Democrat. In 2012, New Hampshire, Pennsylvania and Virginia followed with their own. The laws were strikingly similar. “It’s really, really unheard-of, or really rare, to have states move en masse all of the sudden to pass photocopied laws all at once without a national crisis,” said Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law, which has kept careful track of the new laws. There had not been this many restrictive voting laws in the states, Waldman said, “since the Jim Crow era.”

But by Election Day of 2012, most of the laws had been temporarily suspended, and some were blocked outright….

Three days after Obama’s re-election [in 2012], the Supreme Court agreed to hear a challenge to the constitutionality of Section 5, this time on behalf of Shelby County, Ala., one of whose hamlets the Department of Justice had blocked from eliminating the seat of its sole black lawmaker….

[Chief Justice John Roberts Jr’s] Shelby decision, rendered on June 25, 2013, answered that difficult constitutional question [of whether conditions still justify Section 5’s ‘naming specific states as bad actore that fell under special federal scrutiny’] in the negative, striking down the formula for Section 5 coverage contained in Section 4. Echoing the language of his Reagan Justice Department memos from more than 30 years earlier, Roberts called Section 5 “a drastic departure from basic principles of federalism” that had since served its purpose. “History did not end in 1965,” Roberts wrote. “Largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased and African-Americans attained political office in record numbers.”…

Roberts’s decision prompted an unusually fiery response from Justice Ruth Bader Ginsburg. In her dissent, she noted that in studying the law’s reauthorization in 2006, “Congress found there were more D.O.J. objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490).” She noted that in a majority of those objections, the Justice Department cited “calculated decisions to keep minority voters from fully participating in the political process.” She pointed to a study that found that covered states and counties accounted for 56 percent of all successful discrimination cases brought under Section 2 of the law — which applies equally in all states — though they contained 25 percent of the nation’s population. And she read from F.B.I. transcripts involving a case in Alabama regarding a possible ballot proposition on gambling that some Republican lawmakers worried would cause a spike in the turnout of blacks, whom they referred to as “aborigines” who would arrive at polls in “HUD-financed buses.”

“These conversations occurred not in the 1870s or even in the 1960s — they took place in 2010,” Ginsburg wrote. “ ‘Hubris’ is a fit word for today’s demolition of the V.R.A.”