Sam Podnar

December 2, 2022

Despite great gains made for the rights of non-white Americans in recent decades, racist voter discrimination remains a major problem; certain legislative and judicial moves threaten to sustain the specter of Jim Crow for years to come. This article will connect voting restrictions from the Jim Crow Era to those implemented today, demonstrating how politicians benefiting from the disenfranchisement of non-white voters have advanced their goals through ever-evolving tactics with each new wave of heightened federal oversight. It will explain how various judicial decisions, specifically Shelby County v. Holder, have eroded the federal government’s ability to prevent voting rights violations in the states. White supremacy, perpetually reanimated in myriad forms, is strengthened through specious arguments that it no longer exists and that safeguards against its harm have become irrelevant. Lawmakers can only eliminate persistent and glaring disparities in access to the ballot by acknowledging the continuing impacts of slavery and segregation; this article advocates for an active approach in ending racist voting restrictions.

“In Mississippi we have in our constitution legislated against the racial peculiarities of the Negro,” said James Vardaman, a Mississippi House representative and future governor, during the state’s 1890 convention. “When that device fails, we will resort to something else.”[i] Such sentiment was common among Southern lawmakers resisting progress made during Reconstruction. Time and time again, they maneuvered around policies enacted to advance racial equality, reasserting the shifting regime of white supremacy in whatever cracks existed in federal legislation.

Following the ratification of the Reconstruction Amendments—adopted immediately following the end of the Civil War, between 1865 and 1870—more than half a million Black men joined the voting rolls, electing nearly 2,000 Black men to public office. Louisiana had over 130,000 Black voters on its registration rolls in 1896, about equal to the number of white voters. By 1910, after the implementation of a literacy test, property and residency requirements, and a grandfather clause, the number of registered Black voters numbered 730—less than 0.5% of all eligible Black men. [ii]

The 15th Amendment, ratified in 1870, barred voting discrimination based on race, yet in the 2020 presidential election, the gap in turnout between white and non-white voters was over 12 percent.[iii] Modern voting restrictions may not be as extreme as the poll taxes, literacy tests, all-white primaries, and grandfather clauses of the Jim Crow Era, but they bear the legacy of and serve the same purpose as their ancestral mechanisms: to restrict non-white Americans’ access to the ballot and thus, American democracy.

Sections 4 and 5 of the Voting Rights Act of 1965 include mechanisms to implement preclearance, which mandates that any state or locality with a known history of racial voting discrimination—districts are eligible if they had a voting test in place as of November 1, 1964 and less than 50% turnout in that year’s presidential election—must have changes to election procedures approved by the Department of Justice.[iv] Enacted originally for five years, Congress continually voted to renew it for nearly half a century, during which time registration and turnout rates among Black Americans reached near-parity with those of white Americans.[v] In 2013, five Supreme Court justices gutted Sections 4 and 5 in Shelby County v. Holder, reasoning that any impacts of past explicit racial discrimination at the ballot box were long remedied and that such a burden placed on states’ freedom to run their elections was unnecessary.[vi]

The country saw massive gains in voter turnout and registration for non-white voters under Sections 4 and 5 of the VRA, and it has since seen significant steps backwards for voting rights after the elimination of preclearance. By 2012, the Black-white gap in voter turnout had been falling for several years among the six states previously covered by the VRA’s preclearance provisions, but Shelby reversed the trend, with the racial turnout gap growing in all but one of these states between the 2012 and 2016 presidential elections.[vii]

Chief Justice John Roberts acknowledges in the majority opinion for Shelby that the VRA worked to bring about the improvements he cites to justify the Court’s reasoning: “The Act has proved immensely successful at redressing racial discrimination and integrating the voting process.” This progress, according to the majority, eliminated the need to seek more progress and to prevent the country from slipping back to a time of greater disenfranchisement. Roberts directly references increased turnout and registration rates among non-white voters in states under preclearance—rates that began to fall during the election cycle immediately after Shelby.[viii]

With each new protection for non-white voters at the federal level, lawmakers who largely lack support in elections from non-white voters—and who thus benefit from their disenfranchisement—have engaged in zealous defiance through the voter suppression tactics of both today and past centuries. Political alignments fall along racial lines: 84% of Black voters, 63% of Hispanic voters, and 65% of Asian voters identify with or lean toward the Democratic Party, while the Republican Party is overwhelmingly white.[ix] Thus, ruling parties’ attempts to solidify their political power can, and often do, translate into racial discrimination. A national government weak and unresponsive to this pattern, willfully ignorant to the ways in which white supremacy is perpetuated, has done and will continue to do great damage to communities of color. Unfortunately, the federal government has often accelerated movement backwards by loosening its grip on state lawmakers eager to pursue further voting restrictions.

The same day as the Shelby decision, the Republican Chairman of the North Carolina Senate Rules Committee announced his party’s intention to move forward on previously considered legislation that would restrict voting rights.[x] And before enacting the law, which passed less than two months after Shelby, the North Carolina legislature requested data exploring the use of various voting practices by race.[xi]

The data showed that Black Americans disproportionately lacked the most common kind of photo ID; the legislature amended the original bill to restrict many commonly used alternative IDs used by Black Americans. The data showed that Black Americans disproportionately utilized early voting in the two previous presidential elections; the legislature amended the original bill to cut the early voting period nearly in half by eliminating the first week of early voting, which Black Americans were most likely to use. The data showed that Black Americans disproportionately used same-day registration to cast their ballots; the legislature amended the original bill to eliminate it. The data showed that Black Americans disproportionately used provisional voting to vote outside of their home precincts on Election Day; the legislature amended the original bill to eliminate out-of-precinct voting. The data showed that Black Americans disproportionately used pre-registration, which allowed 16- and 17-year-olds with driver’s licenses to be registered automatically once they reached 18; the legislature amended the original bill to eliminate it.[xii] 

The pre-Shelby version of the bill, which contained none of the aforementioned amendments, sat in the legislature with no action for two months. The Shelby decision set off a hurried scramble to adjust the bill, packed with the restrictive provisions that would not have passed preclearance—the Department of Justice had previously struck down hundreds of pieces of state and local legislation according to the VRA’s preclearance provision, including the Texas legislature’s attempt to instate a strict voter ID law and a Georgia city’s redistricting plan that was found to be designed to suppress the power of the Black electorate. The bill ballooned from sixteen to fifty-seven pages long; it moved through the General Assembly in just three days.[xiii]

“[N]either this legislature—nor, as far as we can tell, any other legislature in the Country—has ever done so much, so fast, to restrict access to the franchise,” wrote a federal judge about the bill in 2016. The judge found that the state legislature acted “with discriminatory intent” and that the law “[targeted] African Americans with almost surgical precision.” [emphasis added][xiv]

Shelby’s impact has razed access to the ballot across the nation. 1,688 polling places closed around the country between 2012 and 2018, and at least 17 million voters were purged from voter rolls between 2016 and 2018, a number significantly higher than that observed ten years prior.[xv] The median purge rate for jurisdictions whose elections were under federal oversight before Shelby was 40 percent higher than the rate for jurisdictions that were not.[xvi]

Preclearance, before its death at the hands of the Supreme Court, worked. The DOJ blocked Texas’s initial attempt to enact a strict photo ID law in 2011, but the legislature implemented it after the Court gutted preclearance with the Shelby decision.[xvii] Between 1982 and 2006, the DOJ blocked over 700 attempted voting changes on the grounds that they were discriminatory. The efforts didn’t ease with time—Congress found more objections from the DOJ to states’ voting laws between 1982 and 2004 than between 1965 and 1982.[xviii]

In her dissent, Justice Ruth Bader Ginsburg points out that it would be illogical to hinder the VRA because its implementation was solving the problems it was meant to solve. “In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy,” she writes. She cites several cases throughout history in which state lawmakers repeatedly tried to disenfranchise non-white voters, bringing forth slightly altered legislation after the justice system struck down original attempts.[xix]

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” Ginsburg writes, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”[xx]

At the heart of the majority’s reasoning in Shelby, that the racially discriminatory voting practices previously justifying such federal oversight had become obsolete since the passing of the Voting Rights Act, lies a convenient falsehood: that white supremacy in this country will yield without resistance, will put up no fight against attempts to dismantle its influence, will go with the wave of a hand and polite, one-time request.

In reality, any step forward for the rights of Black Americans has been met with widespread and vehement resistance. White America, specifically in former slave states, met Reconstruction with Jim Crow and the Klan. It met the Civil Rights Movement with lynchings and mass protests against desegregation. White lawmakers in former slave states met bans on voting discrimination with numerous tactics to circumvent those bans and continue to discriminate. The Supreme Court’s error comes in dismissing the pervasiveness of white supremacy and loosening a hold on states with a known history of discrimination. The assumption that former slave states—a majority of which are controlled by a political party that benefits from the disenfranchisement of non-white voters—will, when left to their own devices, choose to break from centuries of anti-Black discrimination and suddenly not discriminate, makes no sense.

In a case challenging a felony disenfranchisement provision in the state’s constitution, a Mississippi court ruled that amendments made to the state constitution in 1950 and 1968 “cleansed the current provision of its previous discriminatory taint.”[xxi] Judge James E. Graves, Jr., in his dissent, writes that the court, in upholding the original discriminatory provision, “[concludes] that a virtually all-white electorate and legislature, otherwise engaged in massive and violent resistance to the Civil Rights Movement, ‘cleansed’ that provision in 1968.”[xxii] In a state whose racial apartheid was so stark that it was visited by white South African politicians and Nazi intellectuals in search of inspiration for their own burgeoning white supremacist regimes—Adolf Hitler proudly said that one region in eastern Europe would be “our Mississippi”—current lawmakers still claim that all traces of a society built from racial discrimination and Black subjugation disappeared with a few strokes of a pen.[xxiii]

As the federal government has loosened the reins on former slave states, the states have taken full advantage of their increasing freedom to institute more subtly racially discriminatory voting laws and have pushed for even less oversight, betting their hopes on a Supreme Court more friendly to racist policies thinly veiled in states’ rights arguments. In Merrill v. Milligan, which concerns a racial gerrymandering attempt by the Alabama legislature, the Court has already frozen an injunction by a lower court ordering Alabama to redraw the gerrymandered map, signaling possible intention to approve the gerrymandered plan. (Oral arguments on the case began in early October, with a decision pending.)[xxiv] The Court recently granted a stay in the North Carolina case Moore v. Harper; the “independent state legislature” theory pushed by the plaintiffs argues that language in the Constitution grants state legislatures power in setting election rules that is unchecked by state courts.[xxv]

Numerous studies have found that strict voter ID laws put a significant burden on non-white Americans’ ability to vote, as they are less likely to possess accepted forms of identification.[xxvi] Non-white voters are also much more likely than white voters to report difficulty finding polling locations and to suffer long wait times on Election Day. Felony disenfranchisement laws target a prison population that is disproportionately non-white, and restrictions on Sunday voting disrupt efforts by Black Americans to mobilize community members through churches.[xxvii] Disenfranchisement tactics may have changed since the 19th century, but the intention to discriminate and its devastating effects remain.

A delegate to Alabama’s 1901 convention said, “The convention’s goal is to establish white supremacy in the State, within the limits imposed by the Federal Constitution.”[xxviii] The president of Mississippi’s 1890 convention said, “Let’s tell the truth if it bursts the bottom of the Universe. We came here to exclude the Negro. Nothing short of this will answer.” And to return to a quote from a delegate at the same convention: “In Mississippi we have in our constitution legislated against the racial peculiarities of the Negro….When that device fails, we will resort to something else.”[xxix]

We will resort to something else. Today’s lawmakers may not avow their racist intentions with such openness, but one can simply follow the trail in the legislation: They continue to perpetuate white supremacy by enacting racially discriminatory voting laws and by shielding their efforts from scrutiny with the lie that systemic racism is no longer something to worry about. Mississippi only retired the Confederate emblem from its state flag two years ago; in 2001, citizens denied an effort to change the flag by a margin of 2 to 1.[xxx] Entrenched power does not surrender its position easily. And neglect by the federal government to recognize that pattern only enables lawmakers actively opposing progress gain a greater foothold.

The current Supreme Court may continue to be hostile towards protecting voting rights, which places the bulk of responsibility on Congress and the White House to find and eliminate voter discrimination at the state level. Congress passed the National Voter Registration Act in 1993, which mandated that states allow people to register to vote at motor vehicle agencies. It should pass measures protecting voting rights on a broad level, such as the Democracy Restoration Act, which proposes re-enfranchising convicted felons who had returned to their communities, or the Election Day Holiday Act.[xxxi] President Biden issued an executive order in March of 2021 that empowers the federal government to take a more active role in expanding access to the ballot, largely by providing more information to voters about registration, and he should appoint federal judges who will protect voting rights.[xxxii] These actions comprise the active approach by the federal government necessary to eliminate the voting rights violations that will continue to proliferate in the states without a watchful eye.

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[i] Evans, Farrell. “How Jim Crow-Era Laws Suppressed the African American Vote for Generations.” History, 13 May 2021, https://www.history.com/news/jim-crow-laws-black-vote.

[ii] Pildes, Richard H. “Democracy, Anti-Democracy, and the Canon.” SSRN, Constitutional Commentary, Vol. 17, 13 Jul. 2000, http://dx.doi.org/10.2139/ssrn.224731.

[iii] “The Impact of Voter Suppression on Communities of Color.” Brennan Center, 10 Jan. 2022, https://www.brennancenter.org/our-work/research-reports/impact-voter-suppression-communities-color.

[iv] United States Commission On Civil Rights. The Voting Rights Act: The First Months. [Washington, D.C.: U.S. Commission on Civil Rights, 1965], https://lccn.loc.gov/66060144.

[v] “Historical Reported Voting Rates.” United States Census Bureau, 2015, https://www.census.gov/library/visualizations/time-series/demo/voting-historical-time-series.html.

[vi] Shelby County, Alabama v. Holder, Attorney General, et al., 570 U.S. (2013).

[vii] Grange, Coryn, et al. “Racial Turnout Gap Grew in Jurisdictions Previously Covered by the Voting Rights Act.” Brennan Center, 20 August 2021, https://www.brennancenter.org/our-work/research-reports/racial-turnout-gap-grew-jurisdictions-previously-covered-voting-rights.

 

[ix] “Trends in party affiliation among demographic groups.” Pew Research Center, 20 March 2018, https://www.pewresearch.org/politics/2018/03/20/1-trends-in-party-affiliation-among-demographic-groups/.; “Racial and ethnic composition among republicans and Republican leaners by state.” Pew Research Center.

[x] N.C. State Conference of the Naacp v. McCrory, 831 F.3d 204 (4th Cir. 2016).

[xi] N.C. NAACP v. McCrory

[xii] N.C. NAACP v. McCrory

[xiii] N.C. NAACP v. McCrory

[xiv] N.C. NAACP v. McCrory

[xv] “Democracy Diverted: Polling Place Closures and the Right to Vote.” The Leadership Conference on Civil and Human Rights, September 2019, https://civilrights.org/democracy-diverted/.; Morris, Kevin. “Voter Purge Rates Remain High, Analysis Finds.” Brennan Center, 1 August 2019. https://www.brennancenter.org/our-work/analysis-opinion/voter-purge-rates-remain-high-analysis-finds.

[xvi] Morris, Kevin. “Voter Purge Rates Remain High, Analysis Finds.” Brennan Center, 1 August 2019. https://www.brennancenter.org/our-work/analysis-opinion/voter-purge-rates-remain-high-analysis-finds.

[xvii] Fraga, Bernard L. and Miller, Michael G. “Who Do Voter ID Laws Keep from Voting?” Chicago Journals, The Journal of Politics, Vol. 84, April 2022, https://doi.org/10.1086/716282

[xviii] Shelby County v. Holder

[xix] Shelby County v. Holder

[xx] Shelby County v. Holder

[xxi] N.C. NAACP v. McCrory

[xxii] N.C. NAACP v. McCrory

[xxiii] N.C. NAACP v. McCrory

[xxiv] “Merrill v. Milligan.” Oyez. https://www.oyez.org/cases/2022/21-1086.

[xxv] Herenstein, Ethan and Sweren-Becker, Eliza. “Moore v. Harper, Explained.” Brennan Center, 4 August 2022, https://www.brennancenter.org/our-work/research-reports/moore-v-harper-explained.

[xxvi] Kuk, John, et al. “A disproportionate burden: strict voter identification laws and minority turnout.” Taylor & Francis Online, 4 June 2020,

[xxvii] “The Impact of Voter Suppression on Communities of Color.”

[xxviii] Farrell. “How Jim Crow-Era Laws Suppressed the African American Vote for Generations.”

[xxix] N.C. NAACP v. McCrory

[xxx] Avery, Dan. ”Mississippi voters decide to replace Confederate-themed state flag,” NBC, 3 Nov. 2020, https://www.nbcnews.com/news/nbcblk/mississippi-voters-decide-replace-confederate-themed-state-flag-n1246244.

[xxxi] U.S. Congress, Senate, Democracy Restoration Act of 2021, S 481, 117th Cong., introduced in Senate February 25, 2021, https://www.congress.gov/bill/117th-congress/senate-bill/481.; U.S. Congress, House, Election Day Holiday Act of 2021, S 222, 117th Cong., introduced in House January 6, 2021, https://www.congress.gov/bill/117th-congress/house-bill/222/text

[xxxii] Executive Order 14019 of March 7, 2021, Promoting Access to Voting, Code of Federal Regulations, title 3 (2022): 528-533, https://www.govinfo.gov/content/pkg/CFR-2022-title3-vol1/pdf/CFR-2022-title3-vol1.pdf.

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