How the Supreme Court undermined the Black vote

On March 7, 1965, 600 men and women set out from a church in Selma, Alabama, on a planned 54-mile march to the state capital in Montgomery. They were led by two Black men: John Lewis, the 25-year-old son of an Alabama sharecropper, and Hosea Williams, who had a master’s degree in chemistry and had been wounded in action in World War II while serving in Gen. George S. Patton’s Third Army.

In Montgomery, they intended to present Gov. George Wallace with petitions demanding that African Americans be guaranteed the same constitutionally protected right to vote that Whites in Alabama regularly and easily exercised. In Selma, only about 300 of the more than 15,000 eligible Black voters had been allowed to register.

When the marchers reached the crest of the Edmund Pettus Bridge—which spanned the Alabama River and had been named for a Confederate general who had also been a Grand Dragon of the Alabama Ku Klux Klan—they saw dozens of white-helmeted state troopers waiting for them on the other side. The troopers were slapping nightsticks in their hands; whips and tear gas canisters hung from their belts; gas masks were at the ready. The Dallas County sheriff, Jim Clark, and his deputies, some on horseback, waited behind the troopers. Dozens of jeering White spectators waving Confederate flags were on the scene as well.

John Cloud, a major in the state police, spoke through a bullhorn and demanded that the marchers turn back. He gave them two minutes. Lewis, the leader of the Student Nonviolent Coordinating Committee, and Williams, of the Southern Christian Leadership Conference, were determined not to back down. They were equally insistent that the protest be peaceful, at least on their end. They instructed the marchers to kneel and pray and to not fight back if attacked.

What happened in Selma is part of a far larger movement which reaches into every section and state of America.

And attacked they were, almost immediately. Viciously, and with fury and hate. Lewis and his fellow marchers were tear-gassed, beaten with nightsticks—Lewis suffered a fractured skull—whipped, and run down by horses. Many were spat on as they lay injured on the ground.

There had been any number of incidents of White brutality across the South, but this one was filmed by reporters for the entire world to see. On the ABC network, the television premiere of Judgment at Nuremberg, about the trials of Nazi war criminals, was interrupted so that millions could witness the horrible violence in Selma for themselves. The incident was soon dubbed “Bloody Sunday,” and within days, demonstrations against Southern racism were held in more than 80 U.S. cities.

Finally, after decades of denial, the government acted. On March 15, President Lyndon Johnson appeared before a special joint session of Congress and told the assembled senators and representatives:

“The harsh fact is that in many places in this country, men and women are kept from voting simply because they are Negroes. Every device of which human ingenuity is capable has been used to deny this right. The Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent. And if he persists, and if he manages to present himself to the registrar, he may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application.

The 1965 Voting Rights Act has been widely considered the single most effective piece of civil rights legislation ever produced in the United States.

And if he manages to fill out an application he is given a test. The registrar is the sole judge of whether he passes this test. He may be asked to recite the entire Constitution, or explain the most complex provisions of state law. And even a college degree cannot be used to prove that he can read and write. For the fact is that the only way to pass these barriers is to show a White skin…

What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause too. Because it is not just Negroes, but really it is all of us, who must overcome the crippling legacy of bigotry and injustice.

And we shall overcome.”

Two days after the president spoke, the Senate majority leader, Democrat Mike Mansfield, and the minority leader, Republican Everett Dirksen, together introduced a bill to guarantee voting rights to African Americans. A similar bill was soon introduced in the House of Representatives. Over ferocious opposition by Southern congressmen, the bill passed in both houses. On August 6, 1965, President Johnson signed the Voting Rights Act into law.

The 1965 Voting Rights Act has been widely considered the single most effective piece of civil rights legislation ever produced in the United States. The law banned literacy tests and many of the other contrivances used in Southern states to deny the vote to men and women of color. Harking back to post–Civil War legislation of the 1870s, it allowed the federal government to send election supervisors to any state or county where discriminatory practices existed as of the 1964 presidential election, or where voter turnout or registration for that election had fallen below 50% of the voting age population. These were called “special coverage areas,” and in these locations, local and state governments would be required to obtain permission from the federal government before making any change to their election laws or voting procedures.

The law was an enormous and immediate success. In Selma, eight days after President Johnson signed the bill, federal officials helped 381 African Americans register to vote, more than had been able to sign up in Dallas County for 65 years. By Election Day 1965, 8,000 new Black voters helped turn Sheriff Clark out of office and into a mobile home salesman. African American voter registration exploded in every state that had been a part of the old Confederacy—nowhere more than in Mississippi, where in March 1965, only 6.7% of eligible African Americans had been registered. By November 1988, that number had jumped to 74.2%.

There is no act more fundamental to democratic government than casting a vote.

With increased participation in the electoral process, men and women of color, after more than a century, were elected to high public office, and have represented the nation in both houses of Congress and even in the White House. John Lewis was elected to Congress in Georgia, where he has remained ever since. African Americans by the thousands have served in state and local government. Thanks largely to the Voting Rights Act, the promise of America, it seemed, had tentatively begun to be kept.

But the only reason a Voting Rights Act had been necessary in the first place was a series of Supreme Court decisions that began during Reconstruction and ended just after the turn of the 20th century, in which the nine justices of the nation’s highest tribunal had allowed, or more accurately mandated, White supremacist governments in the South to strip Black Americans of that very right, a right that two constitutional amendments had been enacted specifically to safeguard. The measures that the Voting Rights Act delineated to ensure equal access to the ballot box were much the same as those the post-Reconstruction Court had declared unconstitutional, oblivious to a series of very public pronouncements by Southern Whites that their intention had been “to get the n—– out of politics.” In the guise of a strict reading of the text, and with sham neutrality, Supreme Court justices rewrote the Constitution to fit the racial attitudes of the day—and their own. In doing so, the justices allowed popular sentiment and their own notions of racial superiority to overwhelm the promise of equality under the law.

The effect was devastating. With the vacuum created by Black disfranchisement, African Americans were helpless to prevent the horrors of Jim Crow from being sucked in to fill it. People of color, most either former slaves or their descendants, had endured beatings, whippings, and destruction of their property, and had even lost their lives in the attempt to secure a right that had been guaranteed to them under the Constitution, but denied by state and local officials. They fought desperately to prevent their right to vote from being systematically rescinded, only to see the Supreme Court uphold the most transparent laws enacted to drive them back into bondage.

There is no act more fundamental to democratic government than casting a vote. The ability to do so openly and fairly is considered to a great degree synonymous with freedom; the inability synonymous with subjugation or slavery. That the Supreme Court of the United States was the instrument by which millions of Black Americans were denied this most basic privilege of citizenship is a national tragedy, the only occasion in United States history in which a significant group of citizens who had been specifically granted the right to vote had it then stripped away.

Until now.

On June 25, 2013, the Supreme Court, in a 5-4 decision, ruled in Shelby County, Alabama v. Holder that the formula for determining which states and localities would be designated “special coverage areas” was unconstitutional, because after almost 50 years, conditions had improved so much that the formula no longer represented reality. Unless the federal government could demonstrate that these rules were still required, wrote Chief Justice John Roberts in his majority opinion, which was joined by Justices Scalia, Thomas, Kennedy, and Alito, it was a violation of the rights of states and localities to require them to get permission before they could change their election laws. That “states’ rights” had been the rationale under which earlier courts had allowed White supremacists to rob Black Americans of their access to the political process was no longer germane.

Voter ID laws and other restrictions fall most heavily on the poor, African Americans, and Latinos.

“Our country has changed,” Chief Justice Roberts wrote. “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

Justice Ruth Bader Ginsburg wrote a strong dissent, in which she was joined by Justices Breyer, Kagan, and Sotomayor. She agreed that racial discrimination at the ballot box in the states that still required preclearance had decreased, but that was precisely because the law had remained in place. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” she argued, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

If the requirement was eliminated, the dissenters predicted, discrimination might well begin again. And so it has. According to the Brennan Center for Justice:

“The decision in Shelby County opened the floodgates to laws restricting voting throughout the United States. The effects were immediate. Within 24 hours of the ruling, Texas announced that it would implement a strict photo ID law. Two other states, Mississippi and Alabama, also began to enforce photo ID laws that had previously been barred because of federal preclearance.”

Other states have followed suit. In July 2017, in Georgia, 600,000 people, 8% of the state’s registered voters, were purged from the rolls and required to reregister; an estimated 107,000 of them simply because they hadn’t voted in recent elections. In 2018, the state blocked the registration of 53,000 state residents, 70% of whom were African American.

Voter ID laws and other restrictions that fall most heavily on the poor, African Americans, and Latinos have been initiated in a number of other states, not all in the South. Polling locations have been closed, early voting restricted, and registration rules made stricter; all, critics insist, to suppress the votes of certain classes and races. In some states, the same sort of “exact match” rules that President Johnson cited in his speech to Congress have been reinstituted.

But perhaps the most pernicious effect of Shelby County v. Holder is the renewed perception, among those who would discriminate, that the Supreme Court is their ally. As a result, they have become emboldened and, in many cases, have perpetrated abuses of power that would have been unthinkable with a different roster of justices.

On March 28, 2018, for example, in Tarrant County, Texas, 43-year-old Crystal Mason, an African American mother of three, was sentenced to five years in prison for voter fraud. Her crime was going to her local church to vote in the 2016 presidential election and, when she was told that her name did not appear on the voting rolls, casting a provisional ballot under her own name for Hillary Clinton. The vote was never counted. What she had never been told was that because she was on federal probation for tax fraud, her name had been stricken from the rolls and her right to vote suspended. Although the prosecutors, conservative Republicans, never accused her of intent in violating the law, they asked for the maximum sentence, which the judge, another conservative Republican, agreed to. Then, in addition to the five-year sentence from the state judge, at the request of federal prosecutors, Ms. Mason was forced to first serve a 10-month federal sentence for violating the terms of her supervised release. In Iowa, by contrast, a White woman, Terri Lynn Rote, who attempted to vote twice for Donald Trump, was fined $750 and received one year of probation.

In just one more example, in October 2018, a bus rented by a nonpartisan voter outreach group, in which dozens of Black senior citizens were being driven to the polls, was stopped by Georgia officials and the seniors ordered off because, according to Jefferson County Administrator Adam Brett, the bus ride constituted “political activity.”

Whether these and similar modern transparencies will ultimately be ruled antithetical to the constitutional guarantees that Americans claim to hold so dear, or be upheld with same “states’ rights” justifications that ushered in one of the most shameful periods in American history, will depend once more on the will and honor of the Supreme Court. In so deciding, the justices on the high bench will be issuing nothing short of a practical definition of American democracy.

Excerpt from On Account of Race: The Supreme Court, White Supremacy, and the Ravaging of African American Voting Rightsby Lawrence Goldstone. Used with permission of Counterpoint Press. Copyright © 2020 by Lawrence Goldstone.