There’s been a flurry of news lately about voting, capped off by 45’s announcement of a commission to study “voter fraud,” headed by Kansas’ Kris Kobach, and just this morning, the Supreme Court’s announcement that it will not review a lower court’s decision to toss out a 2013 North Carolina law that it said targeted black voters “with almost surgical precision.” You may also have read reports about the decline in black voters and rise in white voters that helped the president defeat his opponent in parts of the upper Midwest.
One important bit of context for understanding all of this is the June 2013 Supreme Court decision Shelby County v. Holder. This 5-4 decision gutted Section 5 of the 1965 Voting Rights Act, what is commonly known as the “preclearance” section. Under the original VRA, particular states, counties, and municipalities with a history of racial discrimination in voting had to have any changes to voting cleared at the federal level, a notable restriction given that our system of government gives states control over how they run their elections.
Arguing for the majority, Chief Justice Roberts said that the country had changed, and while racial discrimination in voting was bad, forcing these particular places to remain under preclearance rules without reevaluating their progress on these issues was unacceptable. Instead, the decision charged Congress with rewriting this portion of the law in a way that “speaks to current conditions.”
Needless to say, Congress since that point has not rewritten the law, and many places that had been under preclearance rules almost immediately made changes to voting that would not have been allowed under an intact VRA. While it is important to note that this was the first election since Shelby County, before we tie every aspect of voter suppression to this decision, we need some precise, historical context.
First of all, not all states were covered under preclearance rules – indeed, that was part of the issue in the case – so not all contemporary voting suppression efforts can be tied to the decision itself. While our dominant narrative of civil/voting rights successes in the 1950s and 1960s focuses on “the South,” discrimination in housing, voting, education, employment, etc. were and are problems across the country. That Wisconsin’s new voter ID law disfranchised many voters is not something we can say resulted from Shelby County, and indeed it is being challenged under a different section of the law, one that deals with denying and diluting votes.
Second, it’s important to have in mind some of the scope of voting suppression efforts. The fact that these efforts have changed over time is part of why it’s easy for some people to say they don’t exist anymore. It’s easy to say “well, we don’t have literacy tests anymore, so we don’t have problems anymore,” but it’s pretty disingenuous. People who supported literacy tests and poll taxes in the 1950s could just as easily say “we don’t have people getting beat up at polling places anymore, so we don’t have problems anymore.” Voter suppression in America has looked like, among other things:
- Physical violence at the polling place
- Physical violence after one leaves the polling place
- Getting fired for registering to vote or voting
- Non-private ballots
- Voting systems inaccessible to people with disabilities
- Having to pay a tax to vote
- Having to prove “literacy” to vote
- Limited voting hours
- Limited polling places in particular areas
- Limited or restricted absentee voting
- Barring convicted felons from voting, even after they’ve completed their sentences
- ID requirements that cost money or privilege particular forms of ID over others
- Redistricting that dilutes the voting power of particular demographics
Finally, it’s important to separate out who has the right to vote and whether or not they can exercise that right. In a sense, voter suppression is what happens when a group’s legal right to vote is restricted, and is often a response to that group being enfranchised in the first place. It’s separate from, but linked to, the issue of who had the legal right to vote, something bound up with the history of citizenship, property, race, gender, disability, and immigration.
As such, it’s useful to think about voter suppression efforts as attempts to find loopholes in or ways around laws and amendments that enfranchise particular groups. For instance, the Fourteenth Amendment restored black citizenship, which had been stripped by the Supreme Court in Dred Scott v. Sandford in 1857, but that did not automatically grant black Americans the right to vote. The Fifteenth Amendment said that people could not be restricted based on race, which essentially enfranchised black men. What happened after that point, and continued after the Nineteenth Amendment enfranchised women, was the suppression of the black vote by making it difficult or impossible for them to exercise that right.
Eliding these two issues and playing dumb about it is a favorite tactic of those who oppose federal civil rights legislation. Exhibit A.
All this is to say that voting rights and voter suppression are complex historical issues, and contemporary voter suppression relies on that complicated history to make suppression happen while also arguing that voter suppression itself is history. Chief Justice Roberts argued that “our country has changed,” but we should be wary of assuming it’s changed that much, and of assuming it only happens in “those places.”