According to the Brennan Center for Justice, more than 400 new voting restrictions have been proposed in 49 states over the last four years. Among them, 21 states have approved legislation that limits access to the ballot.
“There’s this interesting paradox in American democracy where we always talk about how the vote is the most fundamental right,” says journalist Ari Berman, “but we’re continually restricting who gets to enjoy that right.”
Berman explores the history of voting challenges over the last 50 years in his new book, “Give Us the Ballot: The Modern Struggle for Voting Rights in America.” He appeared on KET’s Connections to discuss the efforts to control ballot access.
Revolution and Counter-Revolution
Surprisingly, the U.S. Constitution doesn’t offer Americans a blanket right to vote. Even the 15th and 19th Amendments, which gave African-Americans and women voting privileges, didn’t completely guarantee access to the ballot. That’s why Berman says the 1965 Voting Rights Act was so crucial for the nation.
“In my view [it] really saved American democracy,” says Berman. “The Voting Rights Act wasn’t just a piece of legislation that benefited one group of people, it was something that really benefited the entire country.”
The VRA struck down literacy tests, poll taxes, land ownership requirements, and other restrictions that had been used to keep African Americans, primarily in southern states, from voting since Reconstruction. It also mandated that states with a history of ballot discrimination had to seek federal approval for any proposed changes to their voting processes.
Federal authorities sent to the south after the VRA became law helped register thousands and later millions of African Americans. But as heralded as the VRA was, Berman says the results of the legislation weren’t all positive.
“The revolution of 1965 spawned an equally committed counter-revolution,” Berman says.
In addition to several constitutional challenges to the VRA, Berman says Mississippi attempted to enact laws that simply skirted the act by making it more difficult for African Americans to run for and be elected to public office. In each case, the courts upheld the VRA.
Small Manipulations Yield Big Differences
But as blacks like Barbara Jordan and Andrew Young got elected to Congress in the early 1970s, opponents began to formulate a new tactic to limit ballot access. Berman says it was based on the idea that drawing political districts to enable minorities to be elected was a form of affirmative action – it was, in effect, a quota system for electoral politics.
Berman says a leading proponent of this argument was John Roberts, then a rising young attorney who had clerked for Supreme Court Justice William Rehnquist. Roberts then worked for the U.S. Justice Department in the Reagan Administration. Berman says Roberts signed memo after memo warning that the VRA would lead to affirmative action.
Meanwhile Congress approved re-authorizations of the act in 1970, 1975, 1982, and 2006. In the process, lawmakers abolished all literacy tests, gave 18-year-olds the right to vote, and added coverage for Hispanics and other minority groups. As a result, Berman says millions of Americans were able to join the voting rolls.
Still, those in opposition to broadening the vote found ways to limit access. Berman points to a move by Florida officials ahead of the 2000 elections to purge voting rolls of felons, who had been banned from voting in that state since just after the Civil War. The problem, according to Berman, was that the list was highly inaccurate and discriminated against African Americans. He says a subsequent lawsuit by the NAACP revealed that 12,000 Floridians were wrongly purged from voting lists – a number that could’ve swung the election from Republican presidential candidate George W. Bush to Democrat Al Gore.
“Instead of realizing that this could never happen again… some elements of the Republican Party learned the unfortunate lesson that small manipulations in the electoral process could make a very big difference,” Berman says.
Five years later, then-President George Bush nominated John Roberts to be chief justice of the Supreme Court.
A Failure to Build on Success
Berman says the results of the 2008 elections spurred a whole new wave of voter restrictions.
“I don’t think it’s a coincidence that we’ve seen all these new barriers to the ballot box erected since the election of the first black president,” Berman says. “And I don’t think it was just the election of the first black president, it was the coalition that elected him.”
Berman says there were some 5 million new registered voters that year, including 2 million African Americans and 2 million Hispanics, of which 75 percent voted for Barack Obama. Instead of embracing a younger, more diverse electorate, Berman says some states worked to ensure the voting population remained dominated by old, white conservatives. The American Legislative Exchange Council (ALEC) drafted legislation to restrict voting rights that would be enacted by a number of states.
Then in 2013, in Shelby County v. Holder, the U.S. Supreme Court struck down key provisions of the Voting Rights Act, including the mandate that certain states must receive federal approval of new election procedures. Berman says that one provision blocked 3,000 discriminatory vote changes that had been proposed between 1965 and 2013.
So, instead of building on the successes of the VRA, Berman says Chief Justice Roberts and others in the majority sought to gut the act.
“The Supreme Court said that the most important part of the Voting Rights Act wasn’t needed, ironically at this time when there had been a whole new effort to restrict access to the ballot,” Berman says.
Within weeks, says Berman, states enacted voting laws that would’ve previously been ruled as discriminatory. For example, Alabama passed stricter voter identification laws while also closing offices in majority-black areas that would issue those IDs. Others states, including North Carolina, repealed a number of reforms that had allowed for early voting and same-day voter registration.
Now, as the nation heads into the 2016 election cycle, Berman says citizens in 15 states will face new restrictions that could prevent them from voting. He says the movement to democratize the vote that started in 1965 continues today.
“It’s very unnerving that 50 years after the passage of the Voting Rights Act… we’re still talking about the right to vote,” Berman says. “How has this not been settled?”