Powerful history of voting rights in North Carolina in a 15-min listen

The WNYC (New York Public Radio) show “The Takeaway” has a great recent episode on the latest expansion of voting rights to former felons in North Carolina–great in large part because of the terrific summary the show created of the battle over granting black Americans their Constitutionally given right to vote that has been waged in the state since Reconstruction–1875 to the present.

Check out the story here: “A Win for Felony Offender Enfranchisement in North Carolina” – click the yellow “LISTEN” button just under the headline to hear the piece, which documents the wins and losses that civil rights activists have had in their battle to uphold the Constitution.

As host and narrator Melissa Harris-Perry notes, the story of un-American attempts to stop black Americans from voting is not unique to North Carolina, or even former Confederate states, nor is it new: it’s a nationwide problem with a long history that every democratic American will naturally condemn.

Go listen and enjoy this well-done piece of history writing!

Why did Americans fight in wars?

There are many correct answers to this question, from the noble to the mundane to the misguided. But we feel confident claiming that making it hard for Americans to vote was never a stated purpose for going to war in the United States.

Texas state representative Jack Enfinger does not agree. We’ll get to him in a moment. For now, the background. We were listening to a story on the radio about Texas Senate Bill 1, which is titled thusly:

An act relating to election integrity and security, including by
preventing fraud in the conduct of elections in this state;
increasing criminal penalties; creating criminal offenses;
providing civil penalties.

It is one of the many state bills that have been or are about to be passed to stop non-white people from voting in the name of correcting election fraud. It’s not a leap to make this statement, as the decisions of the Supreme Court has been openly stating since 2013 and its Shelby County decision that times have changed, non-white Americans no longer suffer from institutional discrimination, and there is no need to keep the Voting Rights Act of 1965.

We posted about this at the time – see The Supreme Court strikes down Section 4 of the Voting Rights Act of 1965. Section 4 of the VRA sets out the criteria for determining when a state/local jurisdiction is violating fair elections and voting. As we said back then,

the Court was reviewing two things: whether racial minorities still face voting intimidation and restriction nearly 50 years after the 1965 Act; and whether it was unfair to keep singling out Southern states for closer inspection than other states. The answer to both these questions was “no”. The current system, says the majority opinion written by Chief Justice Roberts, is “based on 40-year-old facts having no logical relationship to the present day. Congress—if it is to divide the states—must identify those jurisdictions to be singled out on a basis that makes sense in light of current condition. It cannot simply rely on the past.”
That is, we can’t say that since Southern states prevented black citizens from voting during Reconstruction, in the 1870s, those states should still be identified as requiring federal oversight. The problem with this logic is that one does not have to go back to the 1870s to find voter repression in the Southern states singled out (Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, South Carolina, and Virginia). These states were preventing black people from voting in the 1920s, 1950s, 1970s, and today. The history of intimidation, arson, and murder used to prevent black Americans from voting in those states is unbroken from 1865 to 2013.
The proof of this claim is in the hundreds of proposed changes to state voting laws in the Southern states currently pending at the U.S. Department of Justice. It’s in the statements made yesterday by Republican leaders in those states that they will take “immediate action” to not only introduce new laws restricting voting rights, but to revive and pass old laws that were rejected by the Justice Department as infringing on the right to vote.
“After the high court announced its momentous ruling Tuesday, officials in Texas and Mississippi pledged to immediately implement laws requiring voters to show photo identification before getting a ballot,” reports the Houston Chronicle. “North Carolina Republicans promised they would quickly try to adopt a similar law. Florida now appears free to set its early voting hours however Gov. Rick Scott and the GOP Legislature please. And Georgia’s most populous county likely will use county commission districts that Republican state legislators drew over the objections of local Democrats. …Laughlin McDonald, who heads the American Civil Liberties Union’s voting rights office, said he agrees that pending submissions to the Justice Department are now moot. It’s less clear what happens to scores of laws that the feds have already denied since the 2006 reauthorization.”
The Southern Republicans in question say that the ruling is a validation of their states’ move away from racial discrimination, an acknowledgement that times have changed. In one way they are right: over the past 20 years, Southern politicians widened the scope of their ambition to attempt to prevent not just black Americans from voting, but the poor, elderly, and Latino as well—all groups they perceive as voting for Democratic party. They have moved away from purely racial discrimination to a much broader discrimination.
Chief Justice Roberts, writing for the majority, said, “Voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, ‘the Act imposes current burdens and must be justified by current needs.’”

There are many things to question here:

If, as the Court claims, voter discrimination still exists, but southern states are no longer the single source of that voter discrimination, then why didn’t the Court expand the VRA to include northern states, rather than kill the VRA?

If the states that wanted the VRA overturned have representatives publicly stating that they would immediately introduce laws that restricted voting, how can the Court state that overturning the VRA will not make voter discrimination worse?

If the VRA is outdated because it’s not current, then what just happened with the Court’s decision in Brnovich v Democratic National Committee?

We won’t go into all of the details of this decision here – you can find an objective, very detailed explanation here at BallotPedia. What we will focus on is the decision’s selection of 1982 as the standard for judging state voting laws: here’s a clear reference from the decision itself:

(B) The degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a relevant consideration. The burdens associated with the rules in effect at that time are useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally “open” or furnishing an equal “opportunity” to vote in the sense meant by §2.

If the problem in 2013 was that an Act from 1965, and thus 48 years old, was too outdated to be relevant (a dubious claim), then how is 1982 okay in 2021? That was 38 years ago, and will only get older.

This discrepancy is just a token for the overall violation of voting rights that the Brnovich decision represents.

Now to circle back to our question about why Americans fought in wars. When we were listening to the radio, we heard many Texas residents saying their piece for and against the legislation. Then we heard state rep Jack Enfinger, of San Antonio, say this:

“This thing about voter suppression is a major false claim—a joke.”
Jack Enfinger, a San Antonio Republican, testified that Texas offers multiple ways to vote, including two weeks of early voting.
“How much more does Texas have to bend over backwards for… the voters? Voting is not supposed to be easy. That’s what our men died for.”

The disdain and incomprehension in Enfinger’s voice when he said “the voters” was remarkable. He makes it very clear that “voters” are a subspecies of American that somehow cannot be equated with “citizens.”

But it’s his claim that American men [sic] fought to prevent Americans from being able to vote easily is so alarming and cray that it takes your breath away. What can it mean? Because the bill in Texas makes it harder for non-white people to vote, the only possible answer seems to be that he’s saying white American men fought and died in foreign wars to make sure that only white American men could ever vote here at home. Americans fought and died in WWII to keep America white.

This is, by now, mainstream, often-heard white fascist content in America (we never thought we’d be saying this in our lifetimes). It hardly causes a stir anymore–since 2020, we’ve become used to fascism in the mainstream. This comment will win Enfinger more Republican support, and otherwise disappear.

But the Supreme Court is on his side, and that’s a problem that’s larger than Texas, and won’t go away. The Shelby decision and the Brnovich decision and the decisions that are coming soon don’t use Enfinger’s direct language, but they are of a piece, and they shore him up and support him.

We seem to end every post the same way lately – do what you can on your local level, vote, protest, get involved in local politics. The minority of people who are passionately devoted to destroying democracy in America are active every day in these ways. SIgn a petition, go to a speech by your representative or a candidate. America has a long tradition of making this relatively easy to do… for now.

The American problem and its solution

We feel inspired to re-run an installment of our series on President Lyndon Johnson’s “We Shall Overcome” speech, delivered on live TV to the American nation on March 15, 1965, as Johnson spoke directly to the people to tell them why black Americans should have the right to vote and why that right should actually be enforced by federal, state, and local governments, and by all those who call themselves Americans.

We were particularly struck, in re-reading that post, by Johnson’s firm statement that “There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem. And we are met here tonight as Americans—not as Democrats or Republicans—we are met here as Americans to solve that problem.”

Words from 1965 have never been more applicable to 2020, and beyond. Let’s face our own time armed with Johnson’s wisdom.

_______

Welcome to part 2 of our series on President Lyndon Johnson’s “We Shall Overcome” speech, delivered on live TV to the nation on March 15, 1965. In this post, we will begin our close reading of this pivotal declaration that America was founded on the promise of civil rights for all—if not immediately, then inexorably, as time passed, and we grew wiser and more powerful in our commitment to natural rights, human freedom, and an American ideal of liberty and justice for all.

Let’s get right into it, as Johnson did that evening:

Mr. Speaker, Mr. President, Members of the Congress:
I speak tonight for the dignity of man and the destiny of democracy
I urge every member of both parties, Americans of all religions and of all colors, from every section of this country, to join me in that cause.

—Somehow the phrase “Members of the Congress” leaps out at us as more than a description of the House and Senate. We are all, as Americans, members of a congress that was and to a large extent still is unique in the world. We are a congress of nations and peoples joined together in a perpetual union as Americans. This is reiterated by Johnson’s description of us as being from “all religions and all colors, from every section”. To this Congress of Americans, Johnson speaks “for the dignity of man and the destiny of democracy”; the two are inseparable, one can’t live without the other. This is a message that some Americans have always and are still trying to shut down, but Johnson is putting it in the spotlight.

At times history and fate meet at a single time in a single place to shape a turning point in man’s unending search for freedom. So it was at Lexington and Concord. So it was a century ago at Appomattox. So it was last week in Selma, Alabama. There, long-suffering men and women peacefully protested the denial of their rights as Americans. Many were brutally assaulted. One good man, a man of God, was killed.

—Connecting—equating—the white policemen in Selma with the British regulars at Lexington and Concord and with the Confederate leadership at Appomattox was daring. Johnson is very clear here: the white police of Selma fought and killed Americans trying to exercise their rights and freedoms as Americans. There is no other way to define it. They were not protecting Southern society, or Southern womanhood, or keeping down violent blacks, or maintaining law and order, or upholding the law of the land, or any of the other justifications racial violence was so constantly wrapped in by its perpetrators.

There is no cause for pride in what has happened in Selma. There is no cause for self-satisfaction in the long denial of equal rights of millions of Americans. But there is cause for hope and for faith in our democracy in what is happening here tonight. For the cries of pain and the hymns and protests of oppressed people have summoned into convocation all the majesty of this great Government—the Government of the greatest Nation on earth. Our mission is at once the oldest and the most basic of this country: to right wrong, to do justice, to serve man.

—The U.S. federal government has heard the cries of its people, and is about to come to their aid. Again, the idea of an American Congress made up not of a few hundred elected officials but of all American citizens, a “convocation of this great Government” is powerfully presented. Our great Government can be summoned into action by any of its people—not just whites. And that is because its mission is to take action to ensure justice, for all. When Johnson says that the mission of the U.S. federal government is the mission of the nation itself, the founding principle and demand placed on that government and on all Americans, he, like Martin Luther King, Jr., is making a powerful argument: it is not an attack on the U.S. to criticize it for failures to provide justice for all. It is a course correction. Equal rights for all races is not some foreign idea that a few people are trying to force into American government and society, it is the original basis for that government and society. The Founders intended that rights be extended to all, over time if not immediately. The history of America is one of extending rights: the right of black men to vote, then of women to vote, then of all people over 18 regardless of race, sex, or origin; the right of interracial couples to marry, then of gay couples to marry; the right of black children to attend schools with white children, and then of mentally challenged children to attend mainstream schools, and eventually of all children to attend public schools without being hampered—the list goes on. In the U.S., we extend rights, through trial and error and argument and sometimes ferocious antagonism, to more and more people. Because that is what this nation was founded to do. That is its mission.

So to demand equal civil rights for black Americans is not some disruptive, un-American demand that the nation abandon its identity and heritage and tradition. It is the usual, necessary texture of America itself. It is what Americans do, and only those who fight to restrict rights are un-American.

In our time we have come to live with moments of great crisis. Our lives have been marked with debate about great issues; issues of war and peace, issues of prosperity and depression. But rarely in any time does an issue lay bare the secret heart of America itself. Rarely are we met with a challenge, not to our growth or abundance, our welfare or our security, but rather to the values and the purposes and the meaning of our beloved Nation. The issue of equal rights for American Negroes is such an issue. And should we defeat every enemy, should we double our wealth and conquer the stars, and still be unequal to this issue, then we will have failed as a people and as a nation. For with a country as with a person, “What is a man profited, if he shall gain the whole world, and lose his own soul?
There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem. And we are met here tonight as Americans—not as Democrats or Republicans—we are met here as Americans to solve that problem.

—It is Johnson speaking the words, Johnson who believed in them; Johnson who would dedicate himself to the civil rights movement, and Johnson who was willing to “betray” his southern identity by standing up for black Americans. But we must take a moment to express our thanks and gratitude to the man who wrote these magnificent words that gave Johnson a platform to stand on: presidential speech writer Richard Goodwin (husband of historian Doris Kearns Goodwin; she also worked for President Johnson). Here, through Goodwin’s words, Johnson is saying that Cold War America may think its biggest problem or threat is Communism, especially in the growing war in Vietnam, but in reality, that threat is external. It does not “lay bare the secret heart of America itself”. Fighting Communism is just a way to stand up for stated American values of freedom. Fighting for civil rights, however, runs the risk of exposing our internal conflicts, our failures to live up to our ideals, our values of freedom, our inability to fully guarantee freedom at home even as we try to export it to the rest of the world. Fighting for civil rights takes the case off the watch so everyone can see the mechanisms inside that can become stuck or loose or rusty.

Civil rights is not about external threats, from Communism or an economic downturn, but about our internal health as a nation: are we who we are supposed to be? Because in the long-term, that internal health dictates our success and our national future. The greatest threat to our national security during the Cold War does not come from outside but from within. If we do not fight for civil rights, then we have no democracy to oppose Communism with. Fail to provide civil rights, and “we will have failed as a people and as a nation”, no matter what happens in Vietnam. We could, in fact, “gain the whole world” for democracy, winning the Cold War and stamping out Communism, and be in more danger than we were before, because we lost our own American soul by denying our own people their freedom. For a Cold War American president to say that fighting Communism was not the most important thing Americans could do was astounding.

And then the magnificent, unequivocal statement: “There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem.” For centuries, black Americans had been treated as aliens by people and by our laws; they were not full citizens, not “real” Americans, and in demanding equal rights, black Americans were traitors who wanted to destroy the good society white Americans had built, one which gave black people a “place” in service to the superior race. Here Johnson, through the words of Goodwin, demolishes this lie. Blacks were not wrong to ask for equality, the problem is not some regional issue the rest of us don’t have to worry or care about, Northerners who journey South to join the fight are not traitorous instigators of a new civil war. There was murder in Selma a week earlier because Americans had yet to fully live up to their national mandate of freedom. Americans had failed, and Americans would find a solution—now.

This was the first nation in the history of the world to be founded with a purpose. The great phrases of that purpose still sound in every American heart, North and South: “All men are created equal”—“government by consent of the governed”—“give me liberty or give me death.” Well, those are not just clever words, or those are not just empty theories. In their name Americans have fought and died for two centuries, and tonight around the world they stand there as guardians of our liberty, risking their lives.

—Just as the white police of Selma are comparable to British regulars during the Revolution, so the black Americans they attacked and killed are comparable with every white American who ever fought and died in the name of his country. Black Americans are guardians of American liberty—this is an astoundingly bold and honest statement of fact that no previous president had made since Lincoln. Even Truman and Eisenhower, the only presidents we could say made a real effort to end segregation, and men who were personally repulsed by racism, did not go this far. Black Americans had been treated as people we should pity and do favors for, out of the kindness of our hearts. Now they were the Minutemen who rode out to risk all to protect the rest of us who stayed home. They were the men in the statues erected in memory of heroes who gave their lives for liberty. Black Americans held the torch that white Americans had tried to blow out, and, failing that, had tried to hide away.

Those words are a promise to every citizen that he shall share in the dignity of man. This dignity cannot be found in a man’s possessions; it cannot be found in his power, or in his position. It really rests on his right to be treated as a man equal in opportunity to all others. It says that he shall share in freedom, he shall choose his leaders, educate his children, and provide for his family according to his ability and his merits as a human being. To apply any other test—to deny a man his hopes because of his color or race, his religion or the place of his birth—is not only to do injustice, it is to deny America and to dishonor the dead who gave their lives for American freedom.

—Again, we are getting a radical revision of America, in which black Americans are the heroes whose memories we dare not dishonor, and the un-American way is to discriminate, the true Americans are black, and they are leading the way for the rest of us to follow.

Lyndon Johnson was not an attractive man. He was, in 1965, still seen by many Americans as a pale substitute for the man he replaced in office. His voice was a little grating, and he did not modulate his rather hectoring tone or his Texas accent. (And this at a time when wealthy Americans still faked a semi-English accent as a sign of their sophistication–watch any movie from the 1940s or 50s.) He couldn’t stand in front of the nation and assume its good will. He couldn’t assume they would be won over by his charm or his popularity. He could, on the other hand, assume that his Southern allies in Congress and in state governments would be infuriated by this speech and feel personally betrayed and attacked by an erstwhile comrade. Whatever popularity Johnson did have was in the South, and that was potentially evaporating by the sentence as he spoke on March 15.

Yet Johnson forged ahead, and we will too, continuing our close reading in the next post

Black Votes Matter… but not in Alabama

Back in June 2013, we posted about the Supreme Court decision that gutted the 1965 Voting Rights Act. You can read that here; in this post, we focus on the inevitable evil that is beginning to come of that decision.

Basically, the SC decision removed a restriction that had been placed on states with the worst records of preventing black Americans from voting: that restriction said that if one of those states wanted to change anything about its voting laws, those changes had to be approved by the federal government. This stopped states from passing new laws that kept black Americans from voting.

And now we see the first fruit of removing that restriction: Alabama first made a government-issued ID mandatory for voting, and has now shut down 31 DMV locations—in majority-black counties.

As the report in The Nation says,

The state is shuttering DMV offices in eight of the 10 counties with the highest concentration of black voters. Selma will still have a DMV office but virtually all of the surrounding Black Belt counties will not. “Every single county in which blacks make up more than 75 percent of registered voters will see their driver license office closed,” writes John Archibald of the Birmingham News. “The harm is inflicted disproportionately on voters who happen to be black, and poor, in sparsely populated areas.”

Alabama describes the closings as a cost-saving measure, but the impact has clear racial and political overtones. Writes Archibald:

“Look at the 15 counties that voted for President Barack Obama in the last presidential election. The state just decided to close driver license offices in 53 percent of them.

“Look at the five counties that voted most solidly Democratic? Macon, Greene, Sumter, Lowndes and Bullock counties all had their driver license offices closed.

“Look at the 10 that voted most solidly for Obama? Of those, eight—again all but Dallas and the state capital of Montgomery—had their offices closed.”

This is the very type of voting change–one that disproportionately burdens African-American voters–that would have been challenged under Section 5 of the VRA, which the Supreme Court rendered inoperative. “The voices of our most vulnerable citizens have been silenced by a decision to close 31 license facilities in Alabama. #RestoreTheVOTE,” tweeted Congresswoman Terri Sewell from Selma.

Congresswoman Sewell is calling on the federal Department of Justice to investigate, but what can it do? Its power to suspend any violation of Americans’ constitutional right to vote has been stripped away by the Shelby decision.

As John Archibald (quoted above) says in an op-ed,

It’s not just a civil rights violation. It is not just a public relations nightmare. It is not just an invitation for worldwide scorn and an alarm bell to the Justice Department. It is an affront to the very notion of justice in a nation where one man one vote is as precious as oxygen. It is a slap in the face to all who believe the stuff we teach the kids about how all are created equal.

But Alabama Secy of State John Merrill says there’s no problem:

Secretary of State John Merrill, Alabama’s chief election official, said late Wednesday that the state’s closing of 31 county driver’s license offices won’t leave residents without a place to get the required I.D. card to vote.

…Merrill said state election officials “will issue (photo voter I.D. cards) on our own” at county Board of Registrars offices. “Every county has a Board of Registrars,” he said.

…Merrill said his office will have brought its mobile I.D. van to every county in Alabama by Oct. 31. He said the van will return to counties when requested. “If they can’t go to the board of registrars, we’ll bring a mobile crew down there,” Merrill said.

…One must ask why Alabama should have to use mobile vans to register people when it already had DMVs in place to do so? Mobilizing a fleet of “mobile ID vans” to replace the DMVs you shut down is like breaking your car window so you can tape a plastic garbage bag over it and then vaunt your great “fix”.

It seems clear that this is a bold, open blow against civil rights in Alabama, and like attacks on immigrants, these moves tend to spread from state to state; we fear Alabama will not be the last to decide it doesn’t have to let black citizens vote. Keep an eye on your own state, and if you like, protest the Alabama move at #RestoretheVOTE.

The American Promise of Johnson’s We Shall Overcome speech

As we enter part 6, the last post in our series on President Lyndon Johnson’s March 1965 “We Shall Overcome” speech, we look at the context of the speech—how it was made, delivered, and received.

President Johnson had not planned to give the speech at all; he was sending his Voting Rights Act bill to Congress and usually when presidents send a bill to Congress they attach a brief message to it and that’s all. Few presidents will make a public speech to Congress urging the passage of a pending bill because a) members of Congress don’t like being pressured publicly to pass things, and b) if the bill is not passed, then the president loses some clout. But at the last moment—the day before the speech was given—Johnson decided this particular bill needed more than a note. We have applauded speechwriter Richard Goodwin for drafting the We Shall Overcome speech in record time, working overnight on the 14th/15th, with Johnson’s direct order to use “every ounce of moral persuasion the Presidency had… with no hedging, no equivocation”. Goodwin delivered on that request. The actual title of the speech was “The American Promise”, but like so many things in U.S. history and culture it became known by a different name—Johnson’s use of the dynamic civil rights promise “We Shall Overcome” destined the speech to be known by that name.

The genius of the speech, and of Johnson’s delivery, lies in its ability to make voting rights for black Americans personal for all Americans. As Americans, they inherited a mission, and if they refused to carry out that mission, they were betraying their country. This was at the very start of some public doubt about the nation’s involvement in Vietnam, when calling on people to fight for their country was beginning to ring hollow, but here was a forum where everyone could be on board—or, at least refusing to get on board was much more difficult. If Americans weren’t sure they were fighting for liberty and justice in Vietnam, they could be very sure they were fighting for it at home, in the form of voting equality. This was a goal that suited both the radical agenda of social revolutionaries and the more square patriotic agenda of their elders. It even made “summoning into convocation all the majesty of this great government” (not something many average Americans, let alone hippies, could have said without blushing) seem not only necessary, but just and commendable and faith-inspiring.

By calling on the nation to fulfill its covenant with God and man, Johnson made passive acceptance of racial discrimination impossible and a kind of passive action to end it possible: that is, Southern Congressmen who did not want to vote for civil rights legislation could do it with the excuse to their constituents that the president had made it impossible not to, that the tide had turned, and that everyone was going to have to find a new way of getting around. No one likes it, they might say, but that’s how it has to be now. Appealing to the ideal of America itself, rather than existing constitutional amendments that some might say should be overturned, forced opponents of civil rights into the untenable position of arguing against America itself, of betraying the nation’s identity, of being un-American.

Reaction to the speech was very positive and action was swift. As Garth Pauley puts it in his book LBJ’s America: the 1965 Voting Rights Address:

In their coverage of his speech, many journalists lauded the president for invoking and affirming “the most sacred and deeply held convictions of a nation,” which brought “the present chapter of the struggle for human rights into proper perspective.” Citizens echoed these sentiments in their letters and telegrams to the White House. And when editorialists urged swift passage of the president’s bill, their appeals employed the language of Johnson’s narrative: The New York Times even suggested passage was a foregone conclusion because a “people that has responded unflinchingly to every trial of national purpose . . . will not fail this test.” Moreover, following President Johnson’s speech, members of Congress deliberated voting rights legislation using the language of America’s destiny, promise, and purpose. Senators and congressmen claimed that the nation must “make good on its promise… [to] fulfill the revolutionary dream of freedom and equality for all Americans” by “passing a bill which [sic] fully insures that every American… has the right to vote”—which will represent a step “along this nation’s honored march toward further fulfillment of our traditional goals of equal opportunity and equal treatment.” Congress indeed passed the final voting rights bill less than five months after Johnson’s speech. The president signed the Voting Rights Act of 1965 into law on August 6, emphasizing at the signing ceremony that America had righted a historical wrong, enacted its sacred principles, confirmed its promise, and now would endeavor to “fulfill the rights that we now secure.”

Pauley goes on to speculate about the ability of a president today to refer to and rely on a shared moral high ground in America to gather support for a bill, and it’s a thoughtful note to end this series on:

Finding a shared moral language out of which a president can fashion a persuasive appeal is difficult. President Johnson effectively grounded his appeals in a potent narrative that focused on public morality–his listeners’ civic duty to keep and fulfill the sacred American Promise. But as the citizenry continues to become more religiously and culturally diverse, less schooled in the narratives of the nation’s history, more aware of how such narratives can be used to justify depraved causes as well as honorable ones, and perhaps less influenced by the moral authority of the presidency, presidents may find it especially tricky to build moral consensus through oratory. Consider this problem from a perspective afforded by studying Johnson’s speech. He used oratory to help secure the significant public good of equal voting rights, primarily by appealing to the American Promise–of which the Constitution is one expression–rather than the Constitution itself. But could Johnson have crafted such a stirring, persuasive appeal on the basis of constitutional guarantees alone? Would his listeners have found it as moving, meaningful, and motivational? Would we find it as eloquent today?

The best of times, the worst of times: Supreme Court rulings on the Voting Rights Act and gay marriage

It’s the time of year when Supreme Court rulings come one after another; this year we have a very mixed bag. The principles of liberty and justice for all were violated by yesterday’s ruling striking down Section 4 of the 1965 Voting Rights Act. They were upheld by today’s ruling striking down the 1996 Defense of Marriage Act.

We will post at more length on both rulings shortly, as we all begin to grapple once again with the ups and downs of participating in the always ongoing, never finished fight against human nature and us v. them that is the price and privilege of being citizens of the United States.

The Voting Rights Act under attack

The Supreme Court is currently hearing arguments to strike down sections of the Voting Rights Act of 1965. This has been a top news story, particularly after Justice Antonin Scalia called the VRA itself (not just the sections in question) a “racial entitlement”. Let’s look at the VRA of 1965 and the debate over it in the Court.

The VRA was passed in 1965 as part of President Johnson’s civil rights legislation. The U.S. Department of Justice website describes it this way: “Pursuant to the Act, the Voting Section undertakes investigations and litigation throughout the United States and its territories, conducts administrative review of changes in voting practices and procedures in certain jurisdictions, and monitors elections in various parts of the country.” This means that voting procedures anywhere in the U.S. can be reviewed, especially when those procedures are changed, and that elections can be monitored to make sure they are fair. Notice the language goes from the entire U.S. and its territories to “certain jurisdictions”—this was originally directed at the southern states, where repression of black voters was well-documented. The Act does not say “southern states” because its authors knew that while it was the south that had a demonstrable problem with fair elections in 1965, the problem could crop up anywhere else at any time. So wherever unfair elections were discovered, those “certain jurisdictions” would come under scrutiny.

Sections 2, 4 and 5 of the Act are the most critical. Section 2 forbids race discrimination in poll worker hiring, voter registration, and redistricting plans. Section 4 sets out the criteria for determining when a jurisdiction is violating fair elections and voting. And Section 5 states that once your state or territory has been designated as problematic and unfair in its voting and election process, any change with respect to voting there can’t be legally enforced until it’s been reviewed by the U.S. District Court or Attorney General. Any jurisdiction with a proven history of voting discrimination had to prove that the change being proposed is not discriminatory—not just another attempt to prevent minorities from voting freely. The jurisdiction has to prove the absence of racial discrimination, and if it can’t, the proposed change cannot be made law. If the suspect jurisdiction can prove that it has gone 10 years without any voter discrimination, it is no longer subject to Section 5.

The key word in all this, of course, is proof. The suspect locale has to prove it is not discriminatory. This represents a rejection of the federal government’s traditional tactic, post-Reconstruction, of listening to southern political leaders say everything was just fine and there was no threatening or lynching of black voters and saying, Great—that’s good news.

The VRA as a whole has been re-approved by Congress several times, most recently in 2006, when it passed by a vote of 98-0 in the Senate and 390-33 in the House. At that time, House Speaker John Boehner (R-Ohio) said the VRA was “an effective tool in protecting a right that is fundamental to our democracy.”

But in the summer of 2012, Shelby County, Georgia, challenged the 2006 reauthorization, saying that Congress had exceeded its authority under the Fourteenth and Fifteenth Amendments and violated the Tenth Amendment and Article IV of the United States Constitution. To quote from SCOTUS Blog:

“…lawyer Bert Rein, representing Shelby County in its challenge to the statute… began by reminding the Court of its 2009 decision in Northwest Austin Municipal Utilities District No. 1 v. Holder, in which it acknowledged that “the South had changed” and “questioned whether current remedial needs justified” the costs – both financial and to the jurisdictions’ autonomy – of the pre-clearance requirement. But Justice Sonia Sotomayor quickly jumped in, observing that even if the South as a whole has changed, Shelby County itself has not. Because Shelby County’s track record of discrimination at the polls remains poor, she suggested, it ‘may be the wrong party bringing this’ case.”

In short, Shelby County said the VRA was outdated and permanently labeled the south as racist, violating the south’s right to equal protection and due process under the law. Justice Sotomayor said this was not about the past but about the present, as Shelby County could not prove it was not discriminatory at the moment, in 2012. Between 1984 and 2010, Shelby County underwent a shift from majority Democratic to Republican, and in 2010 100% of all elected county officials were Republican. The county has not proved that this is the result of the free will of all voters, regardless of race, and not election fraud or voter intimidation, and so it must remain subject to Section 5 of the VRA.

The Court began hearing arguments in the case on February 27, 2013. This was the day Justice Scalia made his controversial claim that Section 5 was a “racial entitlement”, but his 2006 run-up to that statement is even more illustrative of how he sees the VRA:

“The comment came as part of a larger riff on a comment Scalia made the last time the landmark voting law was before the justices. Noting the fact that the Voting Rights Act reauthorization passed 98-0 when it was before the Senate in 2006, Scalia claimed four years ago that this unopposed vote actually undermines the law: ‘The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.’

“That was an unusual comment when it was made, but Scalia’s expansion on it today raises concerns that his suspicion of the Act is rooted much more in racial resentment than in a general distrust of unanimous votes. Scalia noted when the Voting Rights Act was first enacted in 1965, it passed over 19 dissenters. In subsequent reauthorizations, the number of dissenters diminished, until it passed the Senate without dissent seven years ago. Scalia’s comments suggested that this occurred, not because of a growing national consensus that racial disenfranchisement is unacceptable, but because lawmakers are too afraid to be tarred as racists. His inflammatory claim that the Voting Rights Act is a ‘perpetuation of racial entitlement’ came close to the end of a long statement on why he found a landmark law preventing race discrimination in voting to be suspicious.” [our italics]

Here is Scalia’s 2013 statement: “[The VRA was] reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

Scalia’s point, and that of most of the VRA’s opponents, is that the Act is no longer necessary, for two main reasons: a) the south isn’t racist anymore; b) other regions are racist but not being subjected to the Act. As we’ve seen, the Act is not written specifically for the south, but for any jurisdiction, state, or region that has provable voter repression and unfair elections. Yes, repressive new voting laws in northern and western states, usually strict voter ID laws, should be investigated as well… yet how can they be if the VRA is revoked? If the complaint is that all other regions of the nation should be equally suspect of racial discrimination in elections and should be punished for that, how can they be punished if the Act making that illegal is taken away?

What the push to revoke Section 5 and, one can’t help believing, the VRA as a whole, reveals is not a rejection of Civil War-era prejudice against the south but the very modern push to get rid of “big government”. Anti-VRA activists don’t want the DoJ involved in regulating and investigating state voting procedures. They want voting procedures to be regulated by the states, with no federal oversight, which is exactly the situation that made the VRA so necessary, when states violating fair elections were allowed to do that because there was no federal law to stop them. States with a history of racial discrimination in voting—whether it goes back to 1865 or started in 2012—have to be subject to federal oversight because they will not change their own laws.

We’re not sure if members of Congress voted to re-authorize the VRA in 2006 because they were afraid to be labeled as racist if they didn’t; we’re not sure that’s a bad thing. One would hope that being racist would always be a red flag in the United States, and something politicians would want to avoid. But we do know that there is a new trend in play, in which laws that have outlawed discrimination against minority populations have been called reverse discrimination, or revoked because they were successful. The latter is like saying, “Why do you take pills for your high blood pressure? You haven’t had high blood pressure in years. Why are you wasting all that money taking medicine for something you don’t have?” And if one replies, Well, if I didn’t take the pills my high blood pressure would come back, so the pills are preventive, the other party would say “So you’re paying good money not to fix a real problem, but to make sure a problem doesn’t happen? What evidence do you have that the problem might ever happen?” And one might say, My history of high blood pressure. And the arguer would say, dismissively, “History! You’ve got to respond to conditions as they are today, not spend money based on what happened in the past.”

But we would hold that a history—no matter how long or how short—of racial discrimination is a red flag, and needs to subjected to federal investigation in the present, to ensure the future. The fact that states all over the nation are regularly introducing discriminatory voting laws proves that we need the VRA, and need it to be more stringently enforced than ever, not that it’s time to realize that the south isn’t racist and the government’s too big and everything is just fine with voting in the U.S., and all the other claims being made in the Court and the nation as we follow this case.