How Voting Became a Constitutional Right … and How the Supreme Court is Taking It Away

A History of Revolution and Counter-Revolution, Part II

By Edward Spannaus

In Part I , we pointed out that the 1787 Constitution, contrary to popular opinion, neither granted anyone the right to vote, nor denied anyone the right to vote. It left questions of suffrage and voting to the states, where there was a wide variety of practices, based largely on colonial precedents and English (i.e., feudal) law. Under the circumstances, the Constitutional Convention could not set a national standard for voting. But it did establish one important provision: that Congress could override state laws regarding the “time, places and manner” of holding elections for U.S. Senators and Representatives.

Not surprisingly, the Constitution has been amended many times to expand and guarantee the right to vote. The most important of these were the post-Civil War Amendments, particularly the 14th and 15th Amendments which established the right to vote, and gave Congress the authority to enforce their provisions through appropriate legislation.  These amendments represented a revolution in our Constitutional law.  But this revolution was delayed for almost a century by the Federal government’s unwillingness to enforce these amendments after the failure of Reconstruction. The Voting Rights Act of 1965 finally attempted to complete this Constitutional revolution, by enforcing the post-Civil War Amendments.  But, as with all revolutions, it generated a counter-revolution, which is still playing out today.

    *     *    *

A Republican president, Ulysses S. Grant, said that the 15th Amendment was “a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day,” and he declared that “the adoption of the Fifteenth Amendment to the Constitution …  constitutes the most important event that has occurred since the nation came into life.”

A poster celebrating the passage of the 15th Amendment in 1870.

Almost one hundred years later, the 15th Amendment was implemented and enforced by the Voting Rights Act of 1965. A Democratic president, Lyndon Johnson, called the Voting Rights Act “a triumph for freedom as huge as any victory that has ever been won on any battlefield,” and “one of the most monumental laws in the entire history of American freedom.”

The Voting Rights Act (VRA) was passed with substantial Republican support in 1965, and was re-authorized four times: 1970, 1975, 1982, and 2006, plus it was extended in 1992.  All five times in which the VRA was re-authorized or extended, it enjoyed significant Republican support, and all five times, it was signed by a Republican president. (1970 – Nixon; 1975 – Ford; 1982 – Reagan; 1992 – George H.W. Bush; and 2006 – George W. Bush.)

Why then, does today’s Republican-appointed majority on the United States Supreme Court treat this monumental legislation, a cornerstone of our Constitution law, like toilet paper?

*  *  *  *  *

After the passage of the Voting Rights Act in 1965, the voting rights revolution continued for another decade.  The first battleground was the VRA itself.  The first legal test came within months, when six southern states – South Carolina, Virginia, Alabama, Georgia, Louisiana, and Mississippi — challenged the VRA on grounds strikingly similar to claims still heard today:  that it was an unconstitutional power grab by Congress, that usurped powers which the Constitution left to the states.

The Supreme Court decisively batted down these arguments in an 8 to 1 decision – actually 8 ½ to ½, since Justice Hugo Black of Alabama agreed with the majority on most of the case, but dissented on preclearance (Section 5).[1]

Recognizing that the issues presented were “of urgent concern” to the whole county, the Court invited all the states of the Union to participate in the arguments as “friends of the court;” a majority of states did submit or join in briefs, some supporting South Carolina and others supporting the United States.

The basic issue, said the Court, is whether the Voting Rights Act is a valid exercise of powers expressing granted to Congress (in this case, by the 15th Amendment, in relation to the powers reserved to the states).  As its guide, the Court went back to what it called “the classic formulation” of the matters by Chief Justice John Marshall, in the case involving the National Bank (McCulloch v. Maryland), in which Marshall famously declared:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

John Marshall was of course interpreting the “necessary and proper” clause of Article I, Section 8, of the United States Constitution.  Section 2 of the 15th Amendment explicitly tracked the language of Marshall’s opinion, when it declared that “Congress shall have power to enforce this article by appropriate legislation.”

How the Supreme Court Gutted Voting Rights
LBJ signs the Voting Rights Act in 1965.

The Court said that Congress had exercised its authority under the 15th Amendment in an “inventive” but entirely appropriate manner when it enacted the Voting Rights Act, in light of almost a century of “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”   The Court noted that Congress had compiled an extensive record of the denial of voting rights to Blacks, and the ineffectiveness of existing laws and methods – such as case-by-case litigation — to remedy this.

The opinion of the Court concluded:

After enduring nearly a century of widespread resistance to the Fifteenth Amendment, Congress has marshalled an array of potent weapons against the evil, with authority in the Attorney General to employ them effectively….  We here hold that the portions of the Voting Rights Act properly before us are a valid means for carrying out the commands of the Fifteenth Amendment. Hopefully, millions of non-white Americans will now be able to participate for the first time on an equal basis in the government under which they live. We may finally look forward to the day when truly “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

That should have settled the matter once and for all. But, as we shall see, after 50 years of packing the Supreme Court with reactionaries who pretend that the Civil War Amendments to the Constitution never happened, and that we must confine ourselves to the boundaries of the original 1787 text of the Constitution, we find that the Voting Rights Act and the 15th Amendment itself have been decimated.

Completing the Suffrage Revolution

But first, we should complete our review of the revolution in civil rights and voting rights that took place from the mid-1950s to the mid-1970s.  By the end of this period, the nation had achieved near-universal suffrage, as the victories of the civil rights movement were extended to others.  If it was wrong to discriminate against Blacks, how could discrimination be allowed against other ethnic groups, or the very poor, or the mobile and transient citizens?[2]

Economic barriers.  In 1964, the 24th Amendment banned the use of poll taxes in federal elections. The repeal triggered an immediate increase in white voting, which had been suppressed across the South by poll taxes;  an increase in Black voting took a bit longer.[3]  Two years later, the U.S. Supreme Court knocked down the use of polls taxes or other fees to restrict voting in state elections, as a violation of the equal protection clause of the 14th Amendment.[4]  Writing for the Court’s majority, Justice William O. Douglas declared that wealth is “not germane to one’s ability to participate intelligently in the electoral process.”  By 1960, laws disfranchising paupers had been repealed in about half the states but remained on the books in many others. After the 1966 Harper decision, most other states repealed these laws.  Property restrictions for voting on taxes and bond issues were, for the most part, eliminated.

Literacy tests. In 1959, the Supreme Court allowed the use of literacy tests so long as they were not administered in a racially discriminatory manner. The 1965 Voting Rights Act suspended literacy tests in most Southern states; this ban was extended to all states in 1970. Also In 1970, the Supreme Court took note of the fact that Blacks, Native Americans, and others received inferior educations in many locales, which hindered their ability to pass literacy tests, and it effectively nationalized the universal ban on literacy tests. In 1975, Congress made the ban permanent.

How the Supreme Court nullified Voting Rights
A cartoon depicts the barriers to voting represented by the poll tax.

Mobile voters and residence requirements.  A residency requirement for voting was one year in most states, and it was estimated that these laws prevented up to 15 million people from voting in the 1964 elections. In 1970, Congress, pressed by the Nixon Administration and Attorney General John Mitchell, imposed a 30-day limit on state residency requirements for presidential elections, and went even further, allowing those who had moved from one state to another within 30 days of an election to vote by absentee ballot in their state of previous residence.  Professor Keyssar suggests that this advocacy buttressed the Republican Party’s presentation of itself as the party of universal suffrage and national reform.[5]

In 1970 the Supreme Court upheld the 30-day limitation on residency requirements for presidential elections, and in 1972 applied this to state elections, citing the equal protection clause of the 14th Amendment. In other rulings, these protections were applied to military service members, and to students.

The youth vote: 18-to-21 year-olds.  Republicans were the biggest promoters of legislation to lower the voting age to 18, introduced in Congress during World War II, shortly after the draft age was lowered to 18 in 1943. Dwight Eisenhower endorsed the idea when ran for President in 1952.[6]  The next big impetus came during the Vietnam War and the rise of the anti-war movement. This time the political pressure in Congress was coming from Democrats, who hoped to take advantage of youth activism and ferment – but many Republicans, such as Barry Goldwater and President Nixon, also supported it.  In 1970, Nixon signed the extension of the Voting Rights Act which included the 18-year-old vote for federal elections.  A few months later, a Constitutional amendment, the 26th Amendment, was rushed through Congress and was ratified by July 1971.  Although it was widely believed that the new young voters would heavily go Democratic, in fact it was Nixon who carried the youth vote in the 1972 elections.

Incidentally, the 24th and 26th Amendments marked the four and fifth times that the right to vote was baked into the Constitution; the earlier times being in the 14th, 15th, and 19th Amendments.

These five Constitutional amendments, and related Supreme Court decisions, established a set of nationwide standards for suffrage and voting, constituting what Professor Keyssar describes as “a nationalization of the right to vote,” which brought to a close the long period of state control over suffrage.

After two hundred years, no longer was there any basis for states to claim that their rights were being unlawfully overridden by the federal government.  They couldn’t claim it, but nevertheless they did. And eventually, as the Supreme Court changed in composition, it came to support this discredited, antebellum “states’ rights” argument.

We will now turn to an examination of just how this came about.

The GOP adopts the “Southern Strategy”

Although today, a majority of the Republican Party seems to be staking its future on restricting the right to vote, this was not always the case.  In fact, for most of its history, the GOP was the party of expanding voting rights, while the Democratic Party was split between its Northern urban base, and its Southern segregationist wing.

In the 1960s, as the Civil Rights movement gained momentum and attained victories, many Republicans adopted the infamous “Southern Strategy” – to appeal to Southern white Democrats who were frightened by the Democratic Party’s support for Civil Rights and its growing Black voting base. In his 1964 presidential campaign, Barry Goldwater ran against the 1964 Civil Rights Act, opposing federal action under a veneer of states’ rights and conservatism. He was the first Republican candidate since Reconstruction to carry the Deep South, but overall, he lost by a landslide to Democrat Lyndon Johnson of Texas. The 1968 third-party campaign by Democrat George Wallace, which combined hard-core segregationist views with a populist economic appeal to working-class whites, further alerted many Republicans to the potential to appeal to both Southern Democrats and northern white workers who felt threatened by the civil rights movement.

How the Supreme Court Nullified Voting Rights
Richard Nixon inaugurated the Republican Party’s Southern strategy.

To his later regret, Republican strategist Kevin Phillips, who had worked for Nixon’s campaign in 1968, became forever identified with the “Southern Strategy.” His argument, as stated in a New York Times interview in 1970, was that Republicans “are never going to get more than 10 to 20 percent of the Negro vote, and they don’t need any more than that.”  He argued, for perverse reasons, that Republicans should support the Voting Rights Act. “The more Negroes who register as Democrats in the South, the sooner the Negrophobe whites will quit the Democrats and become Republicans,” he said. “That’s where the votes are.”[7]

As one observer put it at the time: the party of Lincoln had donned a Confederate uniform.[8]

Nixon’s “Southern Strategy” extended into the U.S. Supreme Court – and is key to understanding the roots of the Supreme Court’s evisceration of the Voting Rights Act four decades later. Nixon appointed four justices to the Supreme Court during his six years in office, thereby significantly altering the Court’s composition from what it had been at the time of the passage of the Voting Rights Act and its early constitutional tests before the Court.

The beginnings of Nixon’s judicial “Southern Strategy” can be found in Nixon’s 1969 nomination of Clement Haynsworth of South Carolina to fill the seat vacated by the resignation of Abe Fortas; the nomination failed in the Senate due to Haynsworth’s pro-segregation and anti-labor decisions while sitting on the Fourth Circuit Court of Appeals.  Haynsworth was the first Supreme Court nominee to be voted down by the Senate since the 1930s.

Nixon followed up with the nomination of another southerner, Harold Carswell, a “strict constructionist” sitting on the 5th Circuit Court of Appeals.  Carswell’s nomination was also defeated in the Senate, which triggered the exodus of many Southern Democrats into the Republican Party.  At this point, Nixon retreated and nominated Minnesotan Harry Blackmun, who was confirmed by a 94-0 vote.

In late summer of 1971, two more Supreme Court seats, those of Hugo Black and John Marshall Harlan became vacant, giving Nixon two more bites of the apple.  In October 1971 he nominated Lewis Powell, a hardcore but mainstream conservative, and then the radical right-winger, William Rehnquist.

William Rehnquist: Born too late

Nixon knew Rehnquist well. Rehnquist was then serving in the Nixon Justice Department and had toured the country in the late 1960s, urging military surveillance of U.S. citizens, warrantless wiretaps, and “qualified martial law.”

How the Supreme Court Nullified Voting Rights
Justice William Rehnquist

Lewis Powell was confirmed by an 89-1 vote. Rehnquist’s nomination was much more contentious and engendered significant opposition; the vote for his confirmation was 68-26. Among the issues raised in his confirmation hearing, were that, while clerking for Justice Robert Jackson in the 1950s, Rehnquist had expressed openly segregationist views (“It is about time that the court faced the fact that white people in the South don’t like the colored people”), and when Brown v. Board of Education came before the Supreme Court in 1954, Rehnquist urged that the Court should uphold segregation. In memos written for Justice Jackson, Rehnquist went so far as to argue that Plessy v. Ferguson, the 1896 case which enshrined the Jim Crow “separate but equal” principle, was correct and should be reaffirmed by the Supreme Court.

Decades later, while conceding that there were grounds for criticizing the notorious Dred Scott decision, Rehnquist nonetheless openly praised its author, Chief Justice Roger Taney, as “a first-rate legal mind,” and lauded Taney in these terms:

His [Taney’s] willingness to find in the Constitution the necessary authority for states to solve their own problems was a welcome addition to the nationalist constitutional jurisprudence of the Marshall Court.[9]

Evidence presented at both of his confirmation hearings–1971 for Associate Justice, 1986 for Chief Justice–showed that Rehnquist had put his beliefs into action.[10] Most egregious was his personal role in GOP vote-suppression efforts in Arizona, intimidating Blacks and Hispanic potential voters. Despite extensive evidence to the contrary, Rehnquist denied voter intimidation, while conceding that he had been part of Republican “ballot security” efforts in the 1960, 1962, and 1964 elections.

This is the man who sat on the Supreme Court from 1972 until 2005, for 19 of those years as Chief Justice of the United States–making him arguably the high court’s most important “conservative” influence in modern times. He was the embodiment of Nixon’s “Southern Strategy” as it became the increasingly dominant tendency within the Republican Party and the Supreme Court’s conservative wing.

Rehnquist:  Restricting voter rights

Rehnquist first got a chance to restrict the voting franchise in 1974, in the case Richardson v. Ramirez, in which he wrote an opinion for the Court which allowed states to prohibit voting by anyone convicted of a felony–even if that person had fully paid his debt to society by having completed a prison sentence and parole requirements. His ruling continues to disenfranchise millions of former felons to this day–over five million as of 2020.

This was a striking case of “judicial activism” on Rehnquist’s part. The California Supreme Court had declared the case to be moot, as the county election officials in question had decided not to challenge the court action and had agreed to register ex-felons whose sentences and parole had expired. In violation of the Constitution’s case-or-controversy clause,[11] Rehnquist declared the case was not moot, and went on to rule that the equal protection clause of the 14th Amendment did not bar states from permanently disenfranchising convicted felons.

As Rehnquist moves to gut the Voting Rights Act …

In a dissent, Justice Thurgood Marshall accused Rehnquist and the majority of “straining to reach that result,” since, as Marshall contended, the case was not even property before the Court. And on the merits, Marshall, joined in part by two other Justices, argued that voting is a “fundamental” right, and a state would have to demonstrate a compelling interest to deny it. “There is certainly no basis for asserting that ex-felons have any less interest in the democratic process than any other citizen,” Marshall wrote. “Like everyone else, their daily lives are deeply affected and changed by the decisions of government.”  Nor was there any legitimacy to the contention that disenfranchisement was necessary to prevent vote fraud.

For Rehnquist, this was just the beginning. In his first two decades on the high court–a court dominated by Republican appointees since the Nixon Administration–he was by far the most outspoken in his hostility to civil rights and voting rights.  Most of the time he was in the minority in his strident opposition to such rights. But over time, as the Court became more “conservative,” his dissents laid the basis for majorities to roll back civil rights and even the Voting Rights Act.

On April 22, 1980, the Supreme Court handed down two rulings involving the Voting Rights Act, which shaped much of the debate around the 1982 reauthorization. In one, Rehnquist was in the majority; in the other, he wrote a dissenting opinion. Both involved the same issue, that of proving intent to discriminate.

Proving intent, or effects

Take Rehnquist’s dissent in the 1980 case City of Rome v. United States. The case involved a constitutional challenge to numerous changes in voting laws made by this Georgia city, including at-large voting and annexations, which made it impossible for the city’s sizeable Black population to ever elect a candidate of its choice. The Court’s majority held that even if the Justice Department could not prove discriminatory intent, it was sufficient to show the results, or the effects of the changes, to disallow the voting law changes under the Voting Rights Act’s preclearance provision.

Rehnquist’s dissent strongly disagreed, saying that there must be proof of an intent to discriminate or to dilute the minority vote–something that is often impossible to prove when legislators and election officials have learned not to openly proclaim their intentions. He concluded that to prevent voting laws from being implemented because of their effects, was an unwarranted federal intrusion which meant that the states were required to cede too much of their power to the federal government.

More importantly, in a similar case decided the same day, City of Mobile v. Bolden, the Court ruled the other way. This also involved at large elections for a three-person City Commission in the majority-white city of Mobile, Alabama.   Although the city was 35% Black, no Black had ever been elected to the City Commission. The lower court had found, based on a range of evidence of discrimination, that the Black vote in Mobile had been “diluted,” and that a simple fix would be to draw three districts which would each elect one commissioner, and to make one of those districts a majority-black district, so that the Commission would more accurately reflect the composition of the electorate.

Black voters in Alabama have seen their rights attacked by Supreme Court decisions.

In a complex and fragmented ruling (six separate written opinions) Rehnquist and others argued that there was insufficient evidence to prove that the at-large voting scheme had been set up with an intent to discriminate, and only practices created with “racially discriminatory motivation” were unconstitutional or illegal under the  Voting Rights Act.  They also held that there was no 14th Amendment right to proportional representation.

The Mobile decision was the first major blow to the Voting Rights Act. In its wake, due to the burden it imposed of proving intent, many lawsuits were dismissed or withdrawn, many previous judgments were reversed, and challenges to at-large voting were rejected in the lower courts.[12]

Fortunately, the reign of Mobile v. Bolden was brief. During the 1982 reauthorization of the Voting Rights Act, an alliance of liberal Democrats and moderate Republicans rewrote the law, rejecting the Rehnquist standard by putting a greater emphasis on the effects or results of a change in election law, rather than proving intent.  The revised Section 2 of the Voting Rights Act was written by Sen. Robert Dole (R-Kansas), and it barred any voting standard or procedure that “results in a denial or abridgement of the right of any citizen … to vote on account of race or color.”

However, the issue never went away, and Rehnquist and his ilk (like John Roberts and Samuel Alito today) continued pressing for an “intent” test rather than an “effects” test.  During the 2005 confirmation hearings for Roberts’s nomination for Chief Justice, Sen Arlen Specter (R-Pa.) recalled being in Senator Dole’s office with Senators Kennedy, Leahy, and others, and how they worked “to get the effects test instead of the intent test, so that we’d have some realistic enforcement of civil rights.”  Referring to statements made by John Roberts during the 1982 reauthorization fight, Specter asked Rep. John Lewis about Roberts’s denial that he had an agenda to turn back the clock.

Rep. Lewis responded that Roberts was on the wrong side of history, and the wrong side of the Voting Rights Act. Lewis pointed out that “It is very hard and very difficult–almost impossible–to prove intent…. You won’t have people in the old American South–in the 11 southern states, or the old Confederacy, from Virginia to Texas–putting up signs saying, ‘We’re going to discriminate. We’re going to keep Black people from getting elected.’ They’re not going to do that.”

The antebellum Constitution

While Rehnquist was still just an Associate Justice, he was already regarded as the dominant force on the Supreme Court. I just recently came across in article from the March 10, 1982 issue of The New Republic entitled “The Rehnquist Court”–written four years before he was nominated for Chief Justice.  The authors, Yale law professor Owen Fiss, and senior editor of The New Republic Charles Krauthammer (later a prominent neo-con), wrote that the vision driving the Court was not that of Chief Justice Warren Burger, but William Rehnquist.  When Burger was in the majority, he consistently chose Rehnquist to write the opinion in important cases.  “Even his [Rehnquist’s] dissents set the terms of debate among the Justices and often determine the evolution of future doctrine,” Fiss and Krauthammer said.  Although Rehnquist had “considerable influence” with the other Justices, he did not have a stable majority, and in many cases the “liberals” Thurgood Marshall and William Brennan opposed him.

I will quote Fiss and Krauthammer on Rehnquist’s constitutional outlook – since I came to the same conclusion independently, many years ago:

Rehnquist has a constitutional program for the nation: he wants to free the states from the restrictions of the national Constitution, particularly those emanating from the Civil War Amendments and the Bill of Rights. His ideal is state autonomy—and for a decade he has been working methodically to make it a reality.

After reviewing Rehnquist’s rulings undermining Congressional and federal judicial power over the states, they conclude that Rehnquist’s doctrine “resurrects the notion of ‘state sovereignty’ which sees the states as almost coequal to the nation, and as tied together by only a formal compact for limited ends.” (This of course was the Jeffersonian “states’ rights” doctrine which Chief Justice John Marshall demolished in the National Bank case in 1819.)

Fittingly, the kicker on the title of the Fiss-Krauthammer analysis was “A return to the antebellum Constitution.”

2008: a turning point

Even as the Supreme Court continued to chip away at the Voting Rights Act, the impact of the 1982 reauthorization (which extending the law for 25 years) was such that barriers to voting rights were gradually being eroded and minority participation was increased, to the point that the percentage of Black voter turnout was about the same as for whites in the 2008 elections.  The election that year was a turning point, after which the Republican Party as a whole began its shift to becoming the party of making voting more difficult, especially for minorities.

For a radical minority faction of the GOP, which overlapped the nascent Republican alliance with the “religious right,” this perspective long predated 2008.  Republican strategist Paul Weyrich, in a 1980 speech to the Religious Roundtable, mocked the “goo-goo” syndrome (good government) among Christians who want everybody to vote. “I don’t want everybody to vote,” Weyrich declared. “Elections are not won by a majority of people. They never have been from the beginning of our county, and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting population goes down.”

President George W. Bush greets his Attorney General John Ashcroft, who launches a new round of voter suppression.

After the 2000 presidential election and the Florida debacle, Republicans began chasing the phantom of vote fraud.  There are two aspects to this:  one is individual voter fraud (illegal voting, or voter impersonation), and the other is the systematic rigging of an election through machine tampering or manipulation.

The first has becoming exceedingly rare in recent decades; the second was the subject of suspicion around mechanical voting machines, and later computerized touch-screen devices which left no paper trail.  Questions around touch-screen devices peaked around the 2004 elections, as a result of the 2002 Help America Vote Act (HAVA) which mandated digital recording devices in many situations.  After a national outcry around touch-screen voting – as well as voter suppression – around the 2004 elections, most jurisdictions began shifting to optical scanning voting devices, essentially a modern-day paper ballot system, which was easy to verify because it left a paper trail.

As actual voter fraud declined, the clamor about it grew louder and louder. There is nothing new about this, as we have seen, throughout U.S. history, claims of fraud were used to justify restrictive voting measures.

After the 2000 election when the Supreme Court–in another striking case of judicial activism–handed the election to George W. Bush, Bush appointed John Ashcroft as his Attorney General. Ashcroft had just lost a U.S. Senate race in Missouri. Lurid claims of vote fraud came forth from Republican circles, such as Sen. Kit Bond who claimed the election had been stolen by “a major criminal enterprise designed to defraud voters.” After lengthy investigations of the 2000 and 2002 elections, there were only four documented cases of double voting found in Missouri, which represented a voter fraud rate of 0.0003 percent.[13]

Bush’s new Attorney General made investigation and prosecution of vote fraud a priority for the Justice Department. From 2002 to 2005, 24 people were convicted of illegal voting in federal elections nationwide. For all the effort and resources poured into these investigations, by 2007, all of 120 people were charged with fraudulent voting, and 86 convicted – many of whom, one analysis concluded, were people who mistakenly filled out registration forms and misunderstood eligibility rules.

Ashcroft’s successor, Albert Gonzales of Texas, went so far as to carry out mass firings of U.S. Attorneys –who were mostly Republican appointees–for failing to prosecute Democrats for imaginary vote fraud.

Things got even more ridiculous after Donald Trump’s election in 2016.


Official portrait of President Donald J. Trump

Even though Donald Trump legitimately won the electoral vote in the November 2016 elections, he lost the popular vote, and he could not accept that Hillary Clinton could have beaten him in the popular vote by 2.5 million.  After being sworn in, he told Congressional leaders that between 3 and 5 million illegal immigrants had voted in the election.  The bipartisan National Association of Secretaries of State quickly issued a statement saying: “We are not aware of any evidence that supports the voter fraud claims made by President Trump, but we are open to learning more about the Administration’s concerns.”

In May 2017, Trump signed an Executive Order creating his voter fraud commission, officially known as the “Presidential Advisory Commission on Election Integrity.” Vice President Pence was designated as chairman, and the number two was Kris Kobach, the Kansas Secretary of State, one of the county’s leading fire-breathers screaming about “vote fraud” and advocating tighter restrictions on voting. Other prominent claimants about widespread fraud were also appointed, including Hans von Spakovsky of the Heritage Foundation, and J. Christian Adams.  Of the 13 commissioners, five were Democrats.

The Commission’s effort to obtain personal voter information from every state, met with widespread, bipartisan resistance. Most states refused to comply, on the grounds of state laws and privacy concerns.

Kobach and his cronies huffed and puffed, but came up with no evidence of fraud, and on January 3, 2018, Trump disbanded the Commission without it having made any findings of voter fraud.

With all that, one might think that Trump would have hesitated before making the same grandiose claims again.  But his loss in the 2020 presidential race resulted in even broader claims of fraud. Trump and his supporters filed at least 60 lawsuits challenging the results, and they lost every single one of them–even in front of Trump-appointed federal judges.  The most egregious instance of the failure of Trump’s drive to overturn the 2020 election results, was the high-profile recount of over two million ballots in Maricopa County, Arizona.  Final results of the GOP-run “forensic audit” showed a net gain of votes for Joe Biden, widening Trump’s margin of loss.

Trump’s “stop the steal” campaign did have one beneficial–to him–result.  Polling shows that around 70% of Republicans believe that the election was rigged, and that Trump actually won.  This widespread belief provides popular support for the newest wave of vote-suppression laws.

But it would be a mistake to regard Trump as the cause of this.  He simply seized on a popular wave of vote-fraud beliefs and efforts to restrict suffrage, which has been building for the past two decades, aided in significant measure by the U.S. Supreme Court.

Vote suppression

It wasn’t always that way. For much of the time since the Civil War, the Republican Party stood for expanding the right to vote, and Democrats–at least a significant portion–wanted to restrict it. The 2000 elections, and particularly the narrow margin of victory in Florida (537 votes), changed everything.  Republicans, in particular, drew two lessons from that: (1) equally important to turning out your own side’s vote, is keeping down the number of voters on the other side; and (2) more important than the number of votes, is the counting of the votes.

The 1982 HAVA law (Help American Vote Act), in addition to its requirements for voting devices, had also mandated states to create a computerized database of registered voters, and to ensure that only live, eligible voters were on the lists.  This was supposedly to remedy the situation of haphazard, outdated voters lists maintained on a county-by-county basis.  But HAVA provided a pretext for mass purging of voter lists. This was something that Florida had pioneered going into the 2000 elections; a private company was hired to clean up the lists (especially to ensure that no felons could vote), but produced wildly inaccurate results. As a result, black voters were turned away, or had their ballots rejected, at a rate ten times higher than white voters.

But at the same time, many states were liberalizing their laws governing access to the polls. This was especially triggered by the highly publicized 2004 fiasco in Ohio, where voters in poorer and Black neighborhoods were forced to wait hours and hours in lines, while voters in wealthier precincts breezed right through. Subsequently, more early voting and mail-in voting was allowed, which was shown to enlarge voter participation.

Long lines to vote in Ohio became a national scandal.

After the 2010 mid-term Republican sweep, in Congress and state legislatures (11 state legislatures were flipped to Republican control), a slew of restrictive election laws were adopted. Nineteen states passed such laws, cutting back early voting, same-day registration, adding restrictions on voter registration drives, and tightening voter ID laws. (The selective nature of some of these laws was obvious: Texas famously allowed gun permits to be used for identification, but disallowed student IDs.)  Of 11 states with the highest Black turnout in 2008, seven of those added additional barriers to voting.

A particular target of restrictions on early voting were the “Souls to the Polls” drives organized by many Black churches on the Sunday before elections.  Some Republican consultants who disagreed were quoted as acknowledging that these measures were being openly discussed as a means of lowering Black turnout–which was seen as hurting Republicans.

A note on voter ID:  There is obviously nothing wrong with requiring that voters produce some identification in order to register and vote. The problem is that such requirements have been shown, in many studies, to be applied intentionally in a discriminatory fashion, and therefore making voting more difficult for poor people who are less likely to have the types of identification required in many jurisdictions.  This is well-known, and intentional.  Despite repeated claims, and anecdotal evidence, there is no evidence of widespread illegal voting or voter impersonation which would justify harsh ID requirements.

The federal courts, by and large, were receptive to challenges to such restrictive laws, and found many of them to violate the VRA, such as new laws in Texas and South Carolina. A three-judge panel of the U.S. Court of Appeals in D.C. blocked the South Carolina voter ID law from being implemented during the 2012 elections. (It did “pre-clear” the South Carolina law for future elections, but not for the imminent 2012 elections.)  Evidence had been presented showing that 130,000 registered voters in South Carolina lacked the required photo ID, and that those voters were “disproportionately likely to be members of a racial minority.”

Showing how much things have changed over the past 10 years, it’s notable that the opinion was written by Judge Brett Kavanaugh (who was later elevated to the Supreme Court by President Trump). Kavanaugh wrote:

The Voting Rights Act of 1965 is among the most significant and effective pieces of legislation in American history. Its simple and direct legal prohibition of racial discrimination in voting laws and practices has dramatically improved the Nation, and brought America closer to fulfilling the promise of equality espoused in the Declaration of Independence and the Fourteenth and Fifteenth Amendments to the Constitution.

While Kavanaugh found that the South Carolina law was not written with discriminatory intent (it was carefully drafted so as to comply with the VRA’s pre-clearance requirements), he did take note of one contrary piece of evidence, an email from a citizen to a member of the legislature. Kavanaugh wrote that “the constituent’s email demonstrates something we know and do not forget: Racial insensitivity, racial bias, and indeed outright racism are still problems throughout the United States as of 2012.”

Despite the Republican push for laws making it harder to vote, this was not yet the dominant trend. In fact, in 2013 more bills were introduced in state legislatures to expand voting rights, rather than to restrict them.  And the federal courts were still using the VRA to protect the right to vote under the 14th and 15th Amendments.

But then the Supreme Court stepped in, delivering a near-fatal body blow to the Voting Rights Act, in a decision delivered by John Roberts, who had replaced William Rehnquist as Chief Justice in 2005.

To understand how this came about, it is useful to review some of Roberts’ background.

A Rehnquist protegé

When John Roberts arrived in Washington in 1980, fresh out of Harvard Law School, he landed a clerkship with then-Associate Justice William Rehnquist.  Rehnquist was the sole states’ rights conservative on the high court at that time, leading the opposition to the civil rights gains of the 1970s. His chambers were a hotbed for aspiring young “conservatives,” and functioned as a center for the right-wing legal movement which emerged as the Federalist Society in the 1980s. (The Federalist Society has become the “hiring hall” for vetting and recommending Supreme Court nominees for Republican presidents.)

How the Supreme Court Nullified Voting Rights
Justice John Roberts

Roberts arrived shortly after the Mobile and Rome cases described above, in which, as we have seen, Rehnquist was a leader in arguing for an “intent” standard for proving a violation of the VRA, rather than effects or results. After Ronald Reagan’s election, William French Smith was appointed Attorney General, and Kenneth Starr became Smith’s Chief of Staff.  In a call to Starr, Rehnquist urged bringing Roberts on board; And so, Roberts was appointed as Special Assistant to the Attorney General.[14]

This was at the point when the DOJ was launching a crusade against efforts to ameliorate discrimination such as affirmative action, quotas, and busing.[15] Soon, Roberts was in the middle of the fight over the 1982 reauthorization of the VRA. A bi-partisan grouping in Congress wanted to amend the VRA to explicitly establish “effects” or results as the test for proving a VRA violation; the House had passed a bill by a vote of 389-24 to extend the VRA for ten years, and to reverse the Mobile decision so that plaintiffs in VRA cases would only have to prove effects, not intent.

When the VRA debate shifted to the Senate, Roberts was designated as the DOJ’s point man.  He wrote over two dozen memos opposing an effects test as the standard for Section 2 of the VRA, and he drafted talking points, speeches, and op-eds for top DOJ officials. In a memo to Attorney General Smith, Roberts wrote:

The House-passed version of Section 2 would in essence establish a ‘right’ in racial and language minorities to electoral representation proportional to their population in the community…. Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.[16]

Roberts contended in his memos, which formed the basis for DOJ testimony before the Senate, that “An effects test would eventually lead to a quota system in all areas.”  Roberts clashed with career lawyers in the DOJ who unanimously supported an effects test, since they knew from experience how difficult it was to prove intent.  “John seemed like he always had it in for the Voting Rights Act,” said one DOJ official. “I remember him being a zealot.”[17]

Despite Roberts’ efforts, as we noted above, Sen. Robert Dole crafted a compromise which retained the effects test; the Dole Amendment passed 85-8, and a few days later the entire bill passed on a nearly unanimous bipartisan vote. It extended the VRA for 25 years.

Years later, Dole reflected on his arguments with Roberts and the Reagan team during the 1982 reauthorization process. “I tried to make the point to the White House that, as a party, we needed to demonstrate that we cared and were concerned about votes from African-Americans and Hispanics,” Dole said in a 2015 interview. “I don’t know where we lost track after Abraham Lincoln.”[18]

It was only four years after the 1982 reauthorization, that Rehnquist was confirmed as Chief Justice of the United States. Upon Rehnquist’s death in 2005, George W. Bush nominated Roberts to replace him.  Robert’s past history and his pronouncements were focus of much testimony and questioning during his confirmation hearing. Among others, Sen. Ted Kennedy pressed Roberts to explain his views on the VRA, and whether he had any problems with its constitutionality. “The existing Voting Rights Act, the constitutionality has been upheld, and I don’t have any issue with that,” Roberts dissembled.

Roberts survived his confirmation hearing, but the VRA didn’t survive Roberts’s tenure as Chief Justice.

Shelby County trashes preclearance

Roberts got his chance in the 2013 case Shelby County v. Holder, in which an Alabama county challenged the VRA.  During oral arguments, an indication of what was coming were Justice Antonin Scalia’s mocking comments, calling the VRA a “racial entitlement,” and scoffing at the law, saying that nobody was going to vote against a bill with such a “wonderful” name as “The Voting Rights Act.” Therefore, Scalia contended, the VRA was likely to be reenacted in perpetuity, “unless a court can say that it does not comport with the Constitution.”

On June 25, 2013, the Supreme Court issue a 5-4 ruling which gutted the preclearance provisions of the VRA.[19]  Speaking for the 5-4 majority, Roberts blithely asserted that the United States was no longer racist enough to justifying continuation of the preclearance formula of Section 4. By declaring Section 4 unconstitutional, the Court rendered ineffective the preclearance provisions of Section 5.

Preclearance was an “extraordinary” measure designed to address an “extraordinary problem,” Roberts claimed. In the half-century since the VRA was first enacted, he argued, things have changed so much, with Black voting exceeding white turnout in many of the covered jurisdictions, that preclearance is no longer needed.

How the Supreme Court Nullified Voting Rights
The NAACP’s press conference outside the Supreme Court after the Shelby decision.

The next time you hear some Senator bloviating about judges who “legislate from the bench,” think of the Shelby County case.  As we know, the 14th and 15th Amendment of the Constitution explicitly granted Congress the power to pass appropriate legislation to enforce those amendments. Less than ten years before this ruling, Congress had reauthorized the Voting Rights Act, after holding extensive hearings and creating an extraordinary record showing why preclearance was still needed. Knowing what challenges might lie ahead, Democrats and Republicans had made an air-tight case for the appropriateness of continuing the VRA and its preclearance provisions.  Yet Roberts and four other Justice decided that they knew better than Congress, and they substituted their opinions for the evidence-based judgment of Congress that the VRA was necessary and appropriate to enforce the Civil War Amendments.

Could there be a clearer case of “judicial activism”?

Justice Ruth Bader Ginsburg’s scathing but thorough dissent made her a legend.  As Ginsburg put it, the very success of the VRA is supposed to render it unnecessary.  But “Congress was of another mind.”

She went on to argue that “Congress determined, based on a voluminous rec­ord, that the scourge of discrimination was not yet extir­pated.”  The question in this case, is who decides, “this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments `by appropriate
legislation.’”  Congress, with overwhelming support in both Houses, had concluded that Section 5 should
continue in force, to “facilitate completion of the impressive gains thus far made; and [that] continuance would guard against back­ sliding.”

Justice Ruth Bader Ginsburg blasted the Shelby decision.

Ginsburg noted that the methods of discrimination had changed, with “second-generation barriers” to
minority voting; these include efforts to reduce the impact of minority votes through racial gerrymandering, at-large voting, and so on. She pointed out that between 1982 and 2006, objections by the DOJ under preclearance proceedings has blocked more than 700 proposed voting changes, based on DOJ’s determination that the changes were discriminatory.  She provided many examples, and concluded:

Volumes of evidence supported Congress’ de­termination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

Robert’s consolation prize, in his majority opinion, was to assure VRA supporters that his decision in no way would affect the permanent ban on voting discrimination found in Section 2 of the VRA.

(That is, not until eight years later, when the Supreme Court gave Section 2 that same treatment.)

Unleashing states’ rights

Within hours of the Court’s Shelby County decision, Texas implemented a new voter ID law that had previously failed to pass Section 5 muster. Alabama, Virginia, and Mississippi quickly adopted measures which likely wouldn’t have passed Section 5 preclearance.  By the 2016 elections, 15 states had new restrictive voting laws, including redistricting aimed at reducing minority representation, and closing polling places in mostly minority areas. These measures did what they were intended to do: in areas freed from preclearance, minority voting participation fell by over two percent.

A Congressional report issued in 2021 described the aftermath of the Shelby ruling:

In the eight years since Shelby County was decided, states have taken significant steps toward suppressing the vote. Across the country, states have purged millions of voters from the voting rolls; enacted a rash of strict voter ID laws; attempted to implement documentary proof of citizenship laws; failed to provide necessary language access and assistance to limited-English proficiency voters; closed, consolidated, or relocated hundreds if not thousands of polling locations, causing voters to wait in long, burdensome lines to vote; attempted to cut back on opportunities to vote outside of Election Day; and employed changes to methods of elections, jurisdictional boundaries, and redistricting as methods to dilute and disenfranchise minority voters.[20]

But, despite the torrent of restrictive legislation in Republican-run states, and particularly in jurisdictions previous subject to Section 5 preclearance, nonetheless between 2012 and 2016 more states expanded access to voting than restricted it.

And despite the wave of restrictive legislation, the Committee reported, that the 2018 and 2020 elections saw record turnout. But, “the reaction of Republican-led legislatures around the county to historic voter turnout has been to unleash a new wave of restrictive voting laws in the months following the 2020 election.”  This was done under the cover of combatting election fraud – although no credible evidence of widespread fraud in the 2000 elections has been found.

Supreme Court finishes off the VRA

As the House Committee was finishing its report in mid-2021, the Supreme Coup delivered the coup de grace to the VRA, in the case Brnovich v. DNC.[21]

After Robert’s evisceration of Section 5 in 2013, voting rights advocates sought to expand the use of Section 2. Remember, that the Chief Justice had assured litigants that Section 2 would still be available, declaring: “Our decision in no way affects the permanent, nation-wide ban on racial discrimination in voting found in §2,” and he further tried to lull voting rights advocates by asserting that “any racial discrimination in voting is too much.”

Well, Roberts’ assurances didn’t last very long–only eight years, to be exact. That’s when the high court ruled that some racial discrimination is OK. Maybe a little bit, well, maybe more than a little bit. The opinion was written by Samuel Alito, with Roberts and the other so-called “conservatives” joining in. What they did, in effect, was to redraft the Voting Rights Act more to their liking.

The Brnovich case involved two Arizona laws. One, the out-of-precinct voting law, required discarding an entire ballot which is cast anywhere but the voter’s assigned precinct, including the votes in national or statewide races which appear the same on the ballot in all precincts.  Although this might seem unremarkable, in fact (as the dissent pointed out) Arizona is a “national aberration” in this respect.  Many other states make provisions for partially counting out-of-precinct ballots.

How the Supreme Court Nullified Voting Rights
Arizona Attorney General Brnovich.

In 2012, according to the U.S. Election Assistance Commission, about 35,000 votes nationwide were thrown out for being cast in the wrong precinct; almost 11,000 of these were in Arizona.  The Federal Appeals Court which heard this case, concluded that Arizona threw out ballots at a rate 11 times higher than the second-place state discarder.  In the five elections at issue in this case (from 2008 to 2016), Arizona threw out 40,000 ballots, more than any other state in the country.  And minorities were much more likely to have their ballots thrown out than were whites. In the state’s largest county, Maricopa, Hispanics were 110% more likely, Blacks 86% more likely, and Native Americans 73% more likely to have their ballots trashed. One factor in this was that polling places were relocated at a high rate, especially in minority neighborhoods.

The federal District Court found that this policy had a discriminatory impact. And this implicates Section 2 of the VRA, which outlaws any racial discrimination in voting.  But for six Justices of the Supreme Court, this amount of discrimination is permissible, regardless of what Congress said in the Voting Rights Act.

The second Arizona law at issue in the Brnovich case was that banning third-party collection of ballots. This had to do with some circumstances unique to Arizona (but the same type of legal restriction has been established in other states such as Florida).  In Arizona, most people vote by mail. For Native Americans, the lack of access to mail service is astounding. Only 18% of Native Americans get home mail delivery. And most have no access to a nearby Post Office. Many have to drive 45 minutes to two hours to get to a mailbox.  And between one-quarter and one-half have no automobile.

Therefore, for many Native Americans, the only way they can vote, is for a third-party to deliver their ballot to a mail facility, and historically, this is how voting is done in these rural communities. The first version of the law, which makes third-party collection a felony, was passed in 2011. The Justice Department initiated pre-clearance proceedings, and the legislature repealed the law rather than incur penalties under the VRA.  But when the Supreme Court invalidated pre-clearance in 2013, Arizona reenacted the ballot-collection ban, knowing full well that the law would have a discriminatory impact, as the Justice Department had found. (The only exception in the law was for family members and caregivers–which had little impact under the circumstances.)

Predictably, Arizona asserted that the restrictive measures were necessary to prevent fraud. But the state already had rigorous anti-fraud protections, and the District Court found that there had never been a case of third-party ballot fraud charged in Arizona.

And, of course, under the 1982 reauthorization, a litigant didn’t have to prove intent; the law banned any policy or practice which “results in” disparate voting opportunities for minority citizens. The dissenting opinion pointed out, regarding Sec. 2:

It prohibits, without any need to show bad motive, even facially neutral laws that make voting harder for members of one race than of another, given their differing life circumstances. That is
the expansive statute Congress wrote, and that our prior decisions have recognized. But the majority today lessens the law—cuts Section 2 down to its own preferred size…. No matter what Congress wanted, the majority has other ideas….

But cut it down, remake it, and rewrite it, is what the Supreme Court did, and continues to do–to the point where those subject to discrimination and unequal opportunity in voting have almost no means of obtaining redress through the courts.

Alito – turning the clock back 150 years

Justice Alito’s opinion in the Brnovich case is quite revealing in expressing his states’ rights view of the Constitution, for example when he called the dissenters’ views “radical” for wanting to maintain robust federal authority over state voting laws. “The dissent is correct that the Voting Rights Act exemplifies our country’s commitment to democracy,’ Alito wrote, “but there is nothing democratic about the dissent’s attempt to bring about a wholesale transfer of the authority to set voting rules from the States to the federal courts.”

How the Supreme Court Nullified Voting Rights
Justice Samuel Alito has ardently supported states’ rights to suppress voting rights.

Just what does Alito think the 15th Amendment was designed to do, if not establish federal standards for suffrage and the right to vote, and provide for federal authority to enforce these standards?

Indeed, this was the case for each of the Post-Civil War Amendments.

The 13th Amendment abolished slavery.  Prior to its adoption, the decision to allow or prohibit slavery was strictly a question of state law. What was this, if not a “wholesale transfer” of authority from the states to the federal government?

The 14th Amendment defines United States citizenship and says that no state can deprive any citizen of the privileges or immunities of citizens of the United States, nor can any state deprive any citizen of life, liberty, or property without due process of law, nor can a state deny to any citizen equal protection of the law. Wasn’t this a pretty radical notion by pre-Civil War standards?  Didn’t this provide for a “wholesale transfer of authority” over the civil rights of citizens, from the states to the federal government?

National standards and federal authority over the right to vote were also established by the 19th, 24th, and 26th Amendments.[22] They took that authority right away from the states.

Opening the floodgates

As a consequence of the Supreme Court’s Brnovich ruling, State legislatures–mostly those that are Republican controlled–have accelerated their passage of laws which have the objective of making it harder to vote.  And there is no reason to expect this to stop anytime soon.

The Brennan Center for Justice at NYU’s School of Law keeps close track of these things. They report that 2021 was a record-breaking year for legislative activity around voting rights, and that this continued into 2022. They report the following as taking place between January and September of 2022:[23]

  • At least seven states enacted 10 laws that make voting more difficult. (Legislation is categorized as restrictive if it would make it harder for eligible Americans to register, stay on the voter rolls, and/or vote as compared to existing state law.)
  • At least seven states have enacted 12 election interference laws. (Legislation is categorized as election interference if it does one of two things: opens the door to partisan interference in elections or threatens the people and processes that make elections work.)

And, on the other side of the ledger:

  • At least 12 states have enacted 19 laws that expand access to the vote. (Legislation is categorized as expansive if it would make it easier for eligible Americans to register, stay on the rolls, and/or vote as compared to existing state law.)

Were Sections 2 and 5 of the Voting Rights Act still in place, as Congress intended, many, if not most, of these new restrictive voting laws could have been challenged in federal court.[24]

One example: In 2018, Floridians approved the Voting Restoration Amendment, which restored voting rights to most residents with felony convictions who have completed their sentences. Florida’s previous policy of lifetime disenfranchisement for felony convictions blocked one in four Black men in Florida from voting.  But the next year, the legislature passed a bill which prevented people from regaining their voting rights if they still have any outstanding fines or court debts related to their conviction.  But it’s practically impossible for a convicted felon to find out what he or she owes, as there is no centralized database.

Nonetheless, authorities have arrested and jailed people for voting while still owing fines or debts, thus delivering a sharp warning to others, whose rights have supposedly been restored, that they shouldn’t test their luck if they could end up back in jail.[25]

How the Supreme Court Nullified Voting Rights
Florida Governor DeSantis announcing his round of arrests of former felons whose rights had been restored.

But that’s not all that Florida has done to keep people with past convictions from voting.  Last July, with much fanfare, Gov. DeSantis created an Office of Election Crimes and Security to investigate voter fraud and election crimes–doing his part to cast doubt on the integrity of the 2020 elections. In August, DeSantis announced the arrest of 19 people (out of 11 million voters in Florida) for allegedly voting illegally in the 2020 elections.  Fifteen of those arrested were Black. News stories and police videos showed the confusion and dismay among those being arrested – since they had been legally registered to vote by local and state officials, and had valid voter registration cards. Even the police officers making the arrests were baffled.

All of those arrested had been convicted of murder or sex crimes–exceptions under the 2018 amendment–but they had been assured by election officials that they could legally vote under the amendment. And now, they are facing up to five more years in prison. [26]

The highly-publicized arrests had their intended effect–of intimidating potential voters and deterring them from even trying to vote. This was not only true in Florida but beyond. The Marshall Project, a non-profit organization which focuses on the U.S. criminal justice system, found that formerly-incarcerated people in other states, including Alabama and Georgia, had heard about the Florida arrests, and feared the same thing could happen to them if they tried to vote, even though they are legally registered.

DeSantis’s stunt in Florida had its intended effect: casting a chill on the right to vote.

And with the Voting Rights Act now a dead letter, there is little standing in the way of state and local officials who continue to revive old ways, and invent new ways, of spreading fear and intimidation to reduce minority voting.

It’s too early to tell what effect this new wave of “Jim Crow” laws has had on the 2022 elections. In Georgia, primary turnout was high in 2022, but the gap in turnout between Black and White voters was wider than before.  In the Texas primary elections, 25,000 ballots–primarily of Latino and Black voters–were returned due to arcane administrative rules.[27]

A new “Nullification Crisis”

None of this could be happening without the pernicious role that the Supreme Court has played in turning back the clock–not just to before the 1965 Voting Rights Act, but back to before the Post-Civil War Amendments and the Civil War itself.

As we discussed in Part I, the 15th Amendment, and the legislation passed during Reconstruction to enforce it, constituted a revolution in Constitutional law. But the end of Reconstruction in the 1870s, and the repeal of the Enforcement Acts in the late 1880s, rendered the 14th and 15th Amendments “dead letters”–not to be revived until the Civil Rights movement of the 1960’s compelled the passage of the Voting Rights Act.

In 1888, the Republican Party platform charged that the Grover Cleveland Administration and the Democratic Party majority in Congress “owe their existence to the suppression of the ballot by a criminal nullification of the Constitution and laws of the United States.”

This time, it’s the nominally-Republican, states’ rights majority on the U.S. Supreme Court who are the nullifiers:  in effect repealing the Constitutional protection of the right to vote.

[1] “Preclearance” (explained in Part 1) was a very powerful provision on the Voting Rights Act which required official in covered jurisdictions (those with a history of discrimination) from making any changes in election laws without first submitting them for approval by the Justice Department.

[2] This section follows the discussion in Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York; Basic Books, 2000), esp. pp. 268-315.

[3] Michael Waldman, The Fight to Vote (New York: Simon & Schuster, 2016), p. 163.

[4] Harper v. Virginia Board of Elections, 1966.

[5] Keyssar, p. 275.

[6] Waldman, p. 164.

[7]“Nixon’s Southern strategy ‘It’s All In the Charts'”  New York Times, May 17, 1970.

[8] Keyssar, p. 265.

[9] Wiiliam H. Rehnquist, “The Supreme Court: `The First Hundred Years Were the Hardest,’” University of Miami Law Review, July 1988, p. 475.

[10] Twenty-some years ago, this writer went to the offices of the Senate Judiciary Committee and poured over the records of Rehnquist’s 1986 confirmation hearing for Chief Justice, and found there a treasure trove on material documenting Rehnquist’s racist and segregationist views and actions.

[11] The doctrine which holds that there must a genuine controversy between two parties who have legal standing to sue in court; it prohibits advisory opinions, where there is no genuine dispute, but the parties seek to have the court issue an opinion on the matter. In the California felon-voting case, there was no longer a disagreement between the parties, and therefore Rehnquist and the Court had no authority to issue an opinion.

[12] Keyssar, p. 292.

[13] Waldman, p. 186.

[14] Geoffrey R. Stone, “A Four-Decade Perspective on Life Inside the Supreme Court,” (review of book by Joan Biskupic), Harvard Law Review, Jan. 10, 2020.

[15] Samuel Alito, later to be nominated for the Supreme Court, was part of this Reagan Justice Department team from 1981 to 1987, serving as an assistant to the U.S. Solicitor General in arguing cases before the Supreme Court, and then in the Office of Legal Counsel, drafting legal opinions for the President and Executive Branch agencies.

[16] Ari Berman, ‘Inside John Roberts’ Decades-Long Crusade Against the Voting Rights Act,” Politico, Aug. 10, 2015.

[17] Berman, op. cit.

[18] Jim Rutenberg, “A Dream Undone: Inside the 50-year campaign to roll back the Voting Rights Act,” New York Times Magazine, July 29, 2015.

[19] See footnote 1 above.

[20] Committee on House Administration, Subcommittee on Elections, Report on Voting in America: Ensuring Free and Fair Access to the Ballot. 117th Congress, July 2021, p. 121.

[21] Issued July 1, 2021.

[22] The 19th, 24th, and 26th Amendments respectively extended suffrage to women; eliminated poll taxes which were a favorite mechanism in the South to keep Blacks (and many poor whites) from voting; and lowered the voting age to 18 for all the states.

[23] “Voting Laws Roundup: October 2022,” Brennan Center, October 6, 2022.

[24] In preparing for the 2007 reauthorization, it was shown that the Justice Department, under Sec. 5 preclearance, had stopped almost 1200 voting laws from taking effect between 1965 and 2005.

[25] “In Florida, the Right to Vote Can Cost You,” The Brennan Center, Sept. 7, 2022.

[26] “Police cameras show confusion, anger over DeSantis’ voter fraud arrests,” Tampa Bay Times, October 18, 2022;

“Videos Show Confusion as Florida Police Arrest People on Voter Fraud Charges,” New York Times, Oct. 19, 2022; “Florida’s Election Police Have a Million-Dollar Budget and Just a Few Cases,” New York Times, Nov. 8, 2022.

[27] Democracy Wins the 2022 Midterms,” The Brennan Center, Nov. 9, 2022.


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