Ari Berman's Give Us the Ballot

Reading Ari Berman’s Give Us the Ballot: The Modern Struggle for Voting Rights in America made me realize how much I either missed or don’t remember about the years of American history I’ve lived through.

The book covers my lifetime, from the Freedom Rides in 1961 to the 2013 Supreme Court travesty called Shelby County v. Holder and a few years beyond. It spends time on Selma and the enactment of the Voting Rights Act in 1965 (already familiar to me from the movie and John Lewis’s recent graphic novel series March), but adds a lot of details about presidential and Congressional action I hadn’t heard before. It’s a joy to read a book, based on first-hand reporting and primary source interviews, by a writer who can tell history’s story so effortlessly.

The parts of the book after the passage of the VRA contained the most new information for me.

Once black people were registering to vote across the South, the ground shifted from immediate voting rights to defining districts and other macro-level policies about representation. Southern cities changed their school boards, city councils, and county commissions from district-based to at-large, which prevented black candidates from winning because white voters would not vote for black candidates and the black voters were almost always outnumbered. Some states even changed their legislative seats to at-large within jurisdictions, something I’ve never heard of before. Some cities annexed outlying white areas to increase their white populations and changed school superintendent jobs from elected to appointed. Some even merged black-majority counties into larger white-majority counties. Other states required insurance bonds of office holders, and somehow could never issue those to black people who won a race.

Countering all of these clever counter-measures broadened what some had assumed was the VRA's narrow focus on ballot access. It needed to be more than just the ballot, it soon became clear. Section 5 of the VRA “was intended to cover any new statute which relates to the effectiveness of the right to vote” as well (page 62). The Warren Supreme Court agreed with that argument in 1969 (Allen v. State Board of Education), outlawing “second-generation” voting barriers “to ensure that long-disenfranchised minority groups could not just register to vote but could run for office and win” (page 63). Later, the ground shifted yet again to arbitrarily moving polling places so they were hard to find, or putting them in white parts of town when they had been in black or Latino areas before. Most recently, we’ve seen polling places with large minority populations being purposely understaffed so the wait times are three times as long for voters of color as they are for white voters. The cleverness of voter suppression never ends, it seems.

After Nixon's nearly six years in office, during which he appointed four Supreme Court justices, the court shifted to the center-right, and this resulted in the first decision that undermined the VRA, Bolden v. City of Mobile, which was finally decided in 1980. That case outlined the battle line we fight along to this day on many issues of race and oppression in our society (not just voting but housing segregation, incarceration, and the death penalty): whether it’s necessary to prove discriminatory intent, or only discriminatory outcome or effect.

The year 1980 is familiar for another reason: it saw the election of Ronald Reagan to the presidency. Berman’s book gave me another set of reasons to mourn the Reagan years. Reagan had called the VRA “vindictive,” and thought it was intended to humiliate the South. He installed political appointees in the Civil Rights Division of the Justice Department, intent on undermining voting rights in pursuit of a “color-blind” vision of society. William Bradford Reynolds and John Roberts (that name is familiar, I trust) were key in the Reagan Department of Justice Civil Rights Division. Reynolds was fond of calling the VRA a “racial spoils system” favoring minorities over whites, rhetoric that continues to echo today. Reagan’s efforts culminated in the elevation of William Rehnquist to be chief justice of the Supreme Court, the appointment of Antonin Scalia to fill his associate position, and the stacking of federal courts around the nation with judges who were 94 percent white, 95 percent male, and 95 percent Republican (page 180).

The George W. Bush years did even more damage under Attorney General John Ashcroft. He and his top-level staff began clearing out the DOJ civil servant lawyers who had survived the Reagan years and were the mainstays of the Civil Rights Division. Berman actually uses the word “corruption” to describe how things were run during the Bush years (page 229). All in all, voter ID laws enacted during the Bush administration were estimated to have “reduced Hispanic turnout by 10 percent and black and Asian-American turnout by 6 percent in 2004” (page 233).

The chapter on the partial destruction of the VRA in the 2013 Shelby County v. Holder decision was also informative. Three new names are important here, and if you haven’t heard much about them before, I suggest you read up on them: Hans von Spakovsky, Abigail Thernstrom, and Edward Blum. Shelby County was finally the chance John Roberts had been waiting for to insert his end-of-history, color-blind world view into our election laws, and he didn’t waste any time.

Since the Shelby decision, voting rights have been undermined in new-fangled ways, like more stringent voter ID laws and curtailed early voting hours, which recent court decisions have found to be surgically targeted at black voters. There is just about zero evidence of in-person voter fraud, as I've noted before, yet requiring voter ID at the polls is the favored tactic of the Right to ensure the integrity of our elections, even though absentee ballots (which are more popular with white voters) can be done without an ID. Hmm.


Facts I never knew (or had forgotten):

Sam Ervin, one of my Watergate-era heroes, was a segregationist who opposed the VRA. (Check out this 1964 Life magazine feature where Ervin and others explain why they oppose the VRA. Ervin’s quote — “Existing statutes are sufficient to vindicate all rights of any American of any race and to jail any official who deprives any citizen of these rights. Negroes should be equal before the law and not above others” — is one of the mild ones. Thanks to Michael Leddy for the link.) According to Berman’s book, Ervin invited dozens of segregationists to testify against the VRA, including ones who described the VRA as a Communist plot. After the riots of 1965 and 1966 (which occurred after the VRA had passed), Ervin is quoted in the book as saying, “The more laws that are passed in this nation on the national, state, and local levels, the more rioting and looting we have” (page 67).

The three young Civil Rights workers killed in Philadelphia, Mississippi, in 1964 were not all killed in the same way. The two white Northerners were each shot once; James Chaney, a black CORE volunteer, was mutilated beyond recognition (page 122). Their bodies were found within a few miles of the Neshoba County Fair, later the site of Ronald Reagan’s 1980 promise to a crowd of 10,000 white people that he would respect “state’s rights,” not to mention a recent appearance by Donald Trump.

Reconstruction and anti-miscegenation ideas echo all through the VRA and its aftermath. For instance, a 1965 Montgomery Advertiser editorial opined, “This morning, in some counties, federal agents, lineal descendants of the Reconstruction corrupters, will be at work showing illiterates how to make their marks” (page 41). One Louisiana sheriff was philosophical about the new voting rules: “…maybe it will be all right, as long as they leave our schools and little malt shops alone, and don’t marry our daughters” (page 45). Strom Thurmond said in 1964 when he endorsed Barry Goldwater that the new Democratic party is “engaged in another Reconstruction” (page 69). In voting against the VRA, Thurmond said it was the “most patently unconstitutional piece of legislation approved by Congress since Reconstruction days” (page 70).

The birth of "law and order." The Selma-area sheriff who led the beatings on the Edmund Pettus bridge in March 1965 wore a pin that read “Never.” After the VRA and its enforcement began, he switched his pin to one that read “Law and Order” (page 50). From there, that phrase became part of the racial code of the Right, from Richard Nixon to Donald Trump.

Goldwater was a sellout. While I’ve never liked Barry Goldwater, I at least thought he was a principled jerk. But no. He had supported civil rights legislation through 1960 but once Kennedy aligned with the movement, Goldwater realized he wouldn’t get votes from black voters, so he might as well “go hunting the ducks where they are” — ducks being racist voters.

They're still making the same old claims. As soon as the VRA passed and even before it was fully implemented, Southerners were whining about not being recognized for all the advancements they had made. When the VRA came up for renewal in 1969 (the first act was set to expire in 1970), Strom Thurmond said in a hearing, “Why don’t you commend [the states] for any improvements they make?” (page 83). He claimed the VRA was payback for Southern states voting for Goldwater in 1964. All of this rhetoric is familiar in the recent case, Shelby County v. Holder.

I was completely clueless about the story of Modesto Rodriguez (pages 105-111), a farmer from rural Texas who had been denied bank loans because he was trying to build political power among Chicano people in his area. When a Chicano managed to win a mayoral election in a small, nearby city, the white power structure investigated fabricated election irregularities and threw out enough votes to change the election outcome. They later annexed white neighborhoods to the town to dilute the Chicano voting base and shortened voting hours, which primarily affected farmworkers. County-level gerrymandering made sure Anglos held all but one seat on the county commission, too. After Rodriguez testified before Congress during the reauthorization of the VRA in 1975, and later hosted visiting DOJ lawyers back at home, he was beaten by five Texas state law enforcement officers and charged with the usual racist excuses (interfering with an officer, resisting arrest, assault on a police officer). He permanently lost hearing in one ear after the beating. As a result of all Rodriguez’s work and what was done to him, the 1975 reauthorization of the VRA required bilingual elections and added all of Texas and parts of Arizona, Colorado, Florida, and California to Section 5.

Jimmy Carter “named more blacks, Hispanics, and women to the federal judiciary than all previous administrations combined” (page 144).

Rehnquist probably lied to Congress. William Rehnquist started out his law career as a Supreme Court clerk, where he wrote a 1952 memo asserting that the Plessy v. Ferguson separate-but-equal decision was correct and should be affirmed, rather than overturned in Brown v. The Board of Education, which was then under consideration at the court. He later urged Goldwater to oppose the 1964 Civil Rights Act because the federal government shouldn’t be able to tell private property owners what to do. In the early 1960s, he directed “ballot security” in Maricopa County (Phoenix), which challenged Democratic voters at the polls. In Rehnquist’s first nomination hearings in the Senate (1971), multiple witnesses said he had personally administered literacy tests to black and Chicano voters, asking them to read portions of the Constitution. Rehnquist denied the allegations and was approved. He wrote dissents in the Court that describe the VRA as a “straitjacket,” and that it was structured to allow “blacks to ‘get even’ for wrongs inflicted on their forbears” (page 148). During the 1986 Senate hearings before he was approved as Chief Justice, the former assistant U.S. Attorney for Phoenix testified he had seen Rehnquist personally challenging voters in 1962. Rehnquist wiggled out of direct questions about his actions, saying “I am not sure my memory is that good.” Ted Kennedy filibustered the nomination but in the end Rehnquist was approved, 65-33. (And Scalia was approved 10 minutes later. Seriously.)

Roberts evaded the truth when he testified before Congress. After growing up in all-white enclaves and attending private schools, John Roberts went to Harvard for both college and law school with classmates like Grover Norquist and Spencer Abraham. He clerked for Chief Justice Rehnquist right out of law school and when Reagan came into office, he became a special assistant in the Civil Rights Division of the DOJ. He worked doggedly against the renewal of the VRA in 1982, but lost (thank you Bob Dole). When he appeared before the Senate Judiciary Committee in 2005 in support of his nomination as Chief Justice of the Supreme Court, he insisted he had no issue with the existing Voting Rights Act, and that he saw himself as an impartial umpire calling balls and strikes, rather than a partisan with an agenda. His actions in Shelby County v. Holder prove that to be false.

Bill Clinton was a chickens#*t when it came to standing up for his nomination of Lani Guinier to head the Civil Rights Division of the DOJ. Enough said.

Look out, it was a trap. The 1980s and 1990s were a period of consolidation for black politicians as they worked with Republicans to change the voting map of the South to create safe districts for black elected officials, but in doing so they gave up the chance of creating majorities of black, Latino, and progressive white voters. I’m oversimplifying that, but the chapter called The Realignment (pages 183-204) goes into detail about how it worked. (This topic is more fully explored in the book Ratf#*ked by David Daley.)

Florida 2000. Al Gore lost Florida, and therefore the 2000 presidential election, because black voters were disenfranchised through voter list purges. Time and again, Berman recounts cases of black and Latino voters, including veterans, who were not able to vote for a variety of trumped up reasons. The details on the Florida purges will curl your hair (pages 207-210), but the final outcome is that 12,000 people (largely black and Latino) were incorrectly labeled felons and therefore not able to vote, which was 22 times the margin of victory in the state. Black voters also cast more than half of the 180,000 “spoiled” ballots that were thrown out. One more fun fact: Ted Cruz and John Roberts both were part of the legal team that brought us the Supreme Court decision Bush v. Gore. The 2000 election was also the beginning of the Right’s turn toward the topic of voter fraud, which led to the wave of voter ID laws in the past decade and a half.

Ohio 2004. Creative new ways were found to suppress Democratic votes during the 2004 presidential election in Ohio (pages 220-222). Republican Secretary of State Ken Blackwell was also George W. Bush’s campaign co-chair (!), and he managed to limit the availability of ballots and required that voter registration forms were only acceptable if they were on 80# paper stock (one of my favorite jerkish details of all time). Urban precincts had voting machines taken away, while suburban ones got more machines. People waited in lines up to 10 hours to vote. A post-election survey commissioned by the DNC estimated that 3 percent of Ohio voters left their polling places without voting because of the lines, a number of voters that exceeds Bush’s margin of victory by more than 50 percent. On average, black voters statewide waited 52 minutes while white voters waited only 18 minutes. Twice as many black voters reported problems as white voters.


The familiar present and recent past

As I neared the end of the book, I was less surprised by the history of the past 10 years or so, with the rise of ALEC and its voter ID laws that spread across the country, turned back in only a few places (like Minnesota, thanks to our voters). Guess I've been keeping up on this topic.

But it’s worth noting the the effect of the laws passed in many other states. According to the Brennan Center for Justice, in 2006 11 percent of U.S. citizens (21 million eligible voters) lacked the types of ID required, and that share of citizens was disproportionately black (25 percent), elderly (18 percent), and low-income (15 percent).

Remember, both of the judges who wrote the majority opinions affirming voter ID as neutral (Richard Posner writing about an Indiana law for the Seventh Circuit and John Paul Stevens for the Supreme Court) have since changed their minds and regret their decisions. Without Posner's vote in 2007, it's likely almost all of the voter ID laws would have been invalidated.

The book ends with descriptions of post-Shelby voter suppression laws, especially in North Carolina, and the public response and protest. The Moral Mondays movement has fought the changes, with dozens and then hundreds of people arrested at the North Carolina Capitol over several months. Berman shares more stories of people there and in Texas who have been turned away from the polls, including veterans.

It’s a grim part of our history we’re living through right now. In 2014, “The number of voters potentially affected by new barriers to the ballot box exceeded the margin of victory in close races for Senate and governor in North Carolina, Kansas, Virginia, and Florida, according to the Brennan Center for Justice” (page 313). As more Republican vote-suppressors are elected, they suppress the vote more, and ensure their future victory, and the spiral winds more tightly. The only relief is to get out the vote despite them and turn them out of office.

Berman's book supplies both the facts and the fire to fuel the fight in the coming years.

___

Voting Rights Act enactment history

• 1965, five-year act: House 333-85, Senate 73-19.
• 1970, five-year extension: House 272-132, Senate 64-12 (that’s a lot of Senate abstentions… 24).
• 1975, seven-year extension with the addition of bilingual elections: House 341-70, Senate 77-12
• 1982, 25-year extension with the addition of an effects test in Section 2 (countering the idea that there had to be discriminatory intent): House by a nearly unanimous voice vote, Senate 85-8.
• 2006, 25-year extension: House 390-33, Senate 98-0.

Compare those approval margins with Antonin Scalia’s absurd argument during Shelby County that the overwhelming Congressional majorities that affirmed the VRA each time, including 2006, were an indication of its weakness (page 276). In fact, Scalia's words were an echo of the argument against the VRA used from the start. As Berman summarizes it, Southern states’ attorneys argued in 1966 before the Supreme Court that Bloody Sunday in Selma had forced a “rush to judgment” because of the threat of rebellion in the streets, that they were appeasing a mob rather than making sound policy. The VRA was “drastic and despotic,” in their view (pages 46-47). Scalia’s belief that the large number of affirming votes over the years meant Congress members were too scared of public disapproval to vote their consciences.

Despite an overwhelming vote of Congress less than 10 years earlier, Scalia — the supposed champion of the separation of powers and diviner of legislators' original intent — said that voting rights were “not the kind of question you can leave to Congress” (page 276).
__

Here are some additional thoughts that didn't fit into this post.