This coming Thursday, August 6, is the 50th anniversary of the Voting Rights Act of 1965, one of the most consequential pieces of legislation in American history.
Jim Rutenberg of The New York Times in a lengthy exposé, “A Dream Undone,” examines the 50 year GOP campaign to dismantle this landmark piece of legislation. A Dream Undone (excerpts):
[I]n the American South in 1956, not every would-be black voter was an Air Force officer with the wherewithal to call on the local election board; for decades, most had found it effectively impossible to attain the most elemental rights of citizenship. Only about one-quarter of eligible black voters in the South were registered that year, according to the limited records available. By 1959, when Frye went on to become one of the first black graduates of the University of North Carolina law school, that number had changed little. When Frye became a legal adviser to the students running the antisegregation sit-ins at the Greensboro Woolworth’s in 1960, the number remained roughly the same. And when Frye became a deputy United States attorney in the Kennedy administration, it had grown only slightly. By law, the franchise extended to black voters; in practice, it often did not.
What changed this state of affairs was the passage, 50 years ago this month, of the Voting Rights Act. Signed on Aug. 6, 1965, it was meant to correct “a clear and simple wrong,” as Lyndon Johnson said. “Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote.” It eliminated literacy tests and other Jim Crow tactics, and — in a key provision called Section 5 — required North Carolina and six other states with histories of black disenfranchisement to submit any future change in statewide voting law, no matter how small, for approval by federal authorities in Washington. No longer would the states be able to invent clever new ways to suppress the vote. Johnson called the legislation “one of the most monumental laws in the entire history of American freedom,” and not without justification. By 1968, just three years after the Voting Rights Act became law, black registration had increased substantially across the South, to 62 percent. Frye himself became a beneficiary of the act that same year when, after a close election, he became the first black state representative to serve in the North Carolina General Assembly since Reconstruction.
In the decades that followed, Frye and hundreds of other new black legislators built on the promise of the Voting Rights Act, not just easing access to the ballot but finding ways to actively encourage voting, with new state laws allowing people to register at the Department of Motor Vehicles and public-assistance offices; to register and vote on the same day; to have ballots count even when filed in the wrong precinct; to vote by mail; and, perhaps most significant, to vote weeks before Election Day. All of those advances were protected by the Voting Rights Act, and they helped black registration increase steadily. In 2008, for the first time, black turnout was nearly equal to white turnout, and Barack Obama was elected the nation’s first black president.
Since then, however, the legal trend has abruptly reversed. In 2010, Republicans flipped control of 11 state legislatures and, raising the specter of voter fraud, began undoing much of the work of Frye and subsequent generations of state legislators. They rolled back early voting, eliminated same-day registration, disqualified ballots filed outside home precincts and created new demands for photo ID at polling places. In 2013, the Supreme Court, in the case of Shelby County v. Holder, directly countermanded the Section 5 authority of the Justice Department to dispute any of these changes in the states Section 5 covered. Chief Justice John Roberts Jr., writing for the majority, declared that the Voting Rights Act had done its job, and it was time to move on. Republican state legislators proceeded with a new round of even more restrictive voting laws.
All of these seemingly sudden changes were a result of a little-known part of the American civil rights story. It involves a largely Republican countermovement of ideologues and partisan operatives who, from the moment the Voting Rights Act became law, methodically set out to undercut or dismantle its most important requirements. The story of that decades-long battle over the iconic law’s tenets and effects has rarely been told, but in July many of its veteran warriors met in a North Carolina courthouse to argue the legality of a new state voting law that the Brennan Center for Justice at the New York University Law School has called one of the “most restrictive since the Jim Crow era.” The decision, which is expected later this year, could determine whether the civil rights movement’s signature achievement is still justified 50 years after its signing, or if the movement itself is finished.
On the 25th anniversary of the Voting Rights Act, in 1990, there were celebrations throughout the South and state-of-the-black-vote reports on television. In Washington, Congress unanimously passed a joint resolution declaring Aug. 6 “Voting Rights Celebration Day.” George Bush signed it three days later, saying, “We must never underestimate the importance of a single vote.”
But the movement against the trend of making voting easier that began with the original act’s signing was entering a new phase. Democrats were pushing for a new law to increase registration, known as the “motor-voter bill,” which would require states to provide registration forms at motor vehicle departments and other government agencies, such as public-assistance offices. Republicans resisted. Senator Mitch McConnell of Kentucky warned that the bill would “turn every agency, bureau and office of state government into a vast voter registration machine,” resulting in “political couch potatoes” driven to polls on union buses. Bush vetoed the law when it arrived on his desk in the summer of 1992, the middle of the presidential campaign, declaring that it would “expose the election process to an unacceptable risk of fraud and corruption.”
Still, Clinton signed it quickly upon taking office the following year. It was an easy choice. “He stood to gain tremendously,” as the Rev. Jesse Jackson, a longtime advocate for the law, told me. Indeed, following its passage, black registered voters increased 10 percent by 1998, and those new voters would go on to become a boon to Clinton and the Democrats, especially in the South. Nonetheless, a new front had been opened in the battle over voting rights, which combined old-school Jesse Helms attacks on the character of black voters with a new, high-minded concern about fraud.
In-person voter fraud — in which you impersonate someone or try to vote more than once, or at all if you are ineligible — is almost entirely nonexistent in the United States. (An exhaustive Loyola Law School study could find only 31 “credible allegations of fraud” in a one-billion-vote sample.) But election fraud — ballot stuffing, vote buying, machine rigging — is not unheard-of, and in that shade of distinction lay an important new development.
In 1997, the year after Clinton was re-elected, Miami was confronted with a spectacular case of genuine election fraud, when it was revealed that Xavier Suárez had clinched the mayoralty with the help of hundreds of absentee ballots bearing the names of dead people, felons and other ineligible voters. Suárez himself was never charged, but eventually more than 50 people were arrested, and an appellate court threw out the absentee ballots, forcing Suárez to step down from office.
The case set Florida legislators on an aggressive and hasty effort to reform the state’s voting system. One proposed law made it harder to certify an absentee ballot. (The Justice Department blocked much of the law under the Voting Rights Act, determining that some restrictions would fall more heavily on blacks and Hispanics than whites.) The state also hired a data firm called DBT to scrub the names of any dead people or felons from its voter rolls.
Conservative lawmakers nationwide, sometimes citing the motor-voter bill, were increasingly vocal about fraud, and the distinction between in-person voter fraud and actual election fraud was often lost in the heat. Contributing to that confusion was a group formed in 1996 in Virginia, the Voting Integrity Project, known as V.I.P. One member of the group’s advisory board was an obscure elections official out of Georgia named Hans von Spakovsky, who would become a central figure in the campaign against fraud.
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V.I.P. ostensibly offered its services to all comers, but it tended to investigate Democrats. Its first big case came in Louisiana. When the Democrat Mary Landrieu defeated the Republican Woody Jenkins by a narrow margin in the 1996 Senate race, Republicans called in V.I.P., which reported that Landrieu’s election was a result of a complex fraud scheme. A Senate committee investigated and instead found evidence that a Jenkins operative may have coached the witnesses, four of whom recanted. The Senate inquiry determined that there was “no evidence of an organized, widespread effort to secure fraudulent votes.”
Many election fraud scandals involved absentee ballots, and V.I.P. often criticized lax absentee ballot rules, but it was particularly concerned, like Von Spakovsky, with persuading states and counties to purge their voter rolls of dead people and felons. (According to N.Y.U.’s Brennan Center, in the United States, various state voting laws have disenfranchised nearly six million felons.) V.I.P. determined that some municipalities didn’t have the resources to remove ineligible voters, so it formed a partnership with DBT — the same company Florida hired following the Miami mayoral debacle — and announced in a news release that the company would come to “small communities to scrub their voter rolls ‘free of charge.’ ”
The urge to clean up voter rolls is understandable, of course, but in practice it can have an undesirable effect, as the world would soon learn. DBT’s work for Florida entailed combing through the state rolls for possible felons and then forwarding the results to local election officials throughout the state. However, multiple investigations would later determine that DBT incorrectly flagged thousands of people on the lists, and that a disproportionate number of them were black voters, more than 90 percent of whom voted for Al Gore. Estimates for how many of those voters were wrongly turned away from polls range from roughly 1,000 to many times that.
The mishandled felons purge was only one of many mishaps that plagued the presidential election in Florida that year, when some 180,000 votes were rejected because of either poorly designed ballots or challenges from lawyers during the recount. A New York Times review that year found that of the ballots that were thrown out in the Florida election, three times as many came from black voting precincts as from white voting precincts.
The 2000 election fiasco drew nationwide bipartisan calls for election reform. Congress set out to draft a new law to avoid a repeat, and the Bush Justice Department turned to the conservative expert on elections to help guide its role in the legislative process — Hans von Spakovsky.
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The final, bipartisan version of the law — the Help America Vote Act, passed in 2002 — mandated voting booth upgrades and provided protection for voters whose names were wrongly removed from registration rolls, as so many were in Florida. (It requires states to allow those who show up at polls and learn they do not appear on the voting rolls to cast provisional ballots.) But the act also raised the criminal penalties for the willful inclusion of false information on registration forms, like filing one on behalf of a nonexistent person, or claiming to live in a voting precinct where one does not, in fact, reside. Another provision required those who registered by mail to later prove their identities at polling stations or state election offices with photo identification, a utility bill or a bank statement.
By then, it was becoming clear that the Bush administration was picking up where the Reagan- and Bush-era Justice Department left off. One of Bush’s tactics was to pack the Commission on Civil Rights with a conservative majority. His administration was hardly the first to mold the commission to its ideology, but it did so in a new way: Avoiding rules barring a president from appointing more than four commissioners from his or her party, two Republican appointees re-registered as independents. The move cleared the way for Bush to add two new Republicans, effectively giving the commission a 6-2 split. Bush made Abigail Thernstrom, a respected conservative author who had been questioning the role of Section 5 since the 1980s, its vice chairwoman.
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In 2004, the new leadership assigned a case against the majority-black county of Noxubee, Miss., for “relentless voting-related racial discrimination” against white voters — the first case ever brought by the Justice Department on behalf of white voters. When some division lawyers chafed at the decision, Schlozman decided to try to quell the dissent by conducting an aggressive — and, an inspector general’s report later found, illegal — effort to hire like-minded attorneys and to marginalize or get rid of career attorneys the Bush team saw as too liberal. In emails, Schlozman boasted: “My tentative plan to is to gerrymander all of those crazy libs right out of the section” and to replace them with “right-thinking Americans.”
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It was in that toxic environment, in 2005, that Georgia submitted for approval a new type of strict voter-ID law. As it happened, the law comported with legislation Von Spakovsky described in a law-journal article he had recently published under a pen name, Publius. But a voting-division review team report — later leaked to The Washington Post — suggested that the department block the law. Black voters were considerably less likely to have any of the required IDs than whites were. According to the report, a prime sponsor of the bill, State Representative Sue Burmeister, told the review team that if the law diminished black voting, that was only because it shut down opportunities for fraud; black voters, the report paraphrased her as saying, were less likely to vote if they were not being paid to do so. A state judge ultimately invalidated the law, citing the plain language of the Georgia Constitution — “there is nothing equivocal about the words ‘shall be entitled to vote’ ” — and Georgia was forced to revise it. (The revised version provided free voter identification cards to those who needed them, and the Georgia Supreme Court upheld it.)
Still, when the Voting Rights Act went up for reauthorization in 2006, Von Spakovsky told me, he argued at the Justice Department that “the evidence very clearly showed it was no longer needed.” Blum, Clegg and Thernstrom made the same argument, on the Hill and with Karl Rove at the White House. But Congress reauthorized the Voting Rights Act for another 25 years, after it passed unanimously in the Senate and with only 33 “no” votes in the House. Signing the reauthorization that July, Bush declared, “My administration will vigorously enforce the provisions of this law, and we will defend it in court.”
In 2010, Republican legislators — propelled by Tea Party anger, new sources of outside conservative money and a precision plan devised by the strategists Karl Rove and Ed Gillespie — increased the number of statehouses they fully controlled to 25 from 14. In 2011, Alabama, Kansas, Mississippi, Rhode Island, South Carolina, Tennessee, Texas and Wisconsin passed new voter-ID laws. The North Carolina General Assembly passed one that year as well but could not overcome a veto by Gov. Bev Perdue, a Democrat. In 2012, New Hampshire, Pennsylvania and Virginia followed with their own. The laws were strikingly similar. “It’s really, really unheard-of, or really rare, to have states move en masse all of the sudden to pass photocopied laws all at once without a national crisis,” said Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law, which has kept careful track of the new laws. There had not been this many restrictive voting laws in the states, Waldman said, “since the Jim Crow era.”
But by Election Day of 2012, most of the laws had been temporarily suspended, and some were blocked outright. In Texas, a federal court, quoting an earlier case, ruled that the state’s harsh voter-ID law was likely to “lead to a ‘retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.’ ” Section 5, once again, had worked, and in 2012, for the first time in American history, the black turnout rate exceeded the white turnout rate, by two percentage points.
Three days after Obama’s re-election, the Supreme Court agreed to hear a challenge to the constitutionality of Section 5, this time on behalf of Shelby County, Ala., one of whose hamlets the Department of Justice had blocked from eliminating the seat of its sole black lawmaker. The suit came from none other than Edward Blum.
Blum had moved on from challenging districts to challenging Section 5 itself. In 2006, he filed his first suit, on behalf of a small utility board in Austin that had no real effect on minority voting rights but, because it had a publicly elected board and was located in Texas, fell under Section 5 provisions. The suit failed to draw the Supreme Court into the question, though John Roberts Jr., now chief justice, had left the door open to doing so: “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today,” he wrote.
His Shelby decision, rendered on June 25, 2013, answered that difficult constitutional question in the negative, striking down the formula for Section 5 coverage contained in Section 4. Echoing the language of his Reagan Justice Department memos from more than 30 years earlier, Roberts called Section 5 “a drastic departure from basic principles of federalism” that had since served its purpose. “History did not end in 1965,” Roberts wrote. “Largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased and African-Americans attained political office in record numbers.”
Roberts’s decision prompted an unusually fiery response from Justice Ruth Bader Ginsburg. In her dissent, she noted that in studying the law’s reauthorization in 2006, “Congress found there were more D.O.J. objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490).” She noted that in a majority of those objections, the Justice Department cited “calculated decisions to keep minority voters from fully participating in the political process.” She pointed to a study that found that covered states and counties accounted for 56 percent of all successful discrimination cases brought under Section 2 of the law — which applies equally in all states — though they contained 25 percent of the nation’s population. And she read from F.B.I. transcripts involving a case in Alabama regarding a possible ballot proposition on gambling that some Republican lawmakers worried would cause a spike in the turnout of blacks, whom they referred to as “aborigines” who would arrive at polls in “HUD-financed buses.
“These conversations occurred not in the 1870s or even in the 1960s — they took place in 2010,” Ginsburg wrote. “ ‘Hubris’ is a fit word for today’s demolition of the V.R.A.”
The effects of the Shelby decision were immediate. Late in the evening of July 22, 2013, the Democrats on the North Carolina General Assembly Rules Committee received their copies of a new version of House Bill 589, which was due for a vote the following day. Three months earlier, the House passed the original H.B. 589. It was a short voter-ID bill, allowing for a wider range of IDs — including state-college IDs — than other laws of its kind, and incorporated provisions that would help those who did not have an appropriate ID to get one free. The bill had been extensively vetted in hearings that took place over weeks but had curiously sat dormant after its passage by the House. Just after the Shelby decision, the senator in charge of the Rules Committee, Tom Apadoca, said, cryptically, “Now we can go with the full bill,” and expressed relief that the “headache” was out of the way.
State Senator Josh Stein was sitting in his kitchen in Raleigh when the email with the new legislation came through. “My jaw hit the table,” he recalled. He quickly understood what Apadoca had meant. The bill had grown to 57 pages from 14, with 48 additional sections that cut the state’s early-voting period nearly in half, taking away one of the two Sundays when black churches run highly effective “souls to the polls” voting drives. It ended same-day registration and invalidated student IDs for voting. In its one act designed to improve voter access, the bill made it easier to vote by absentee ballot. None of this could have been approved under Section 5. The email indicated that the Rules Committee would vote the following morning.
The bill alarmed North Carolina’s black legislators, some of whom had worked for decades to make the state a model for inclusive voting law. They saw in it a reflection of the failed Reconstruction years. “History has a way of repeating itself,” said Representative Henry Michaux Jr., who joined the North Carolina General Assembly in 1972, “and that’s exactly what’s happening here.”
The new bill had many authors, literal and spiritual, among the generations of civil rights antagonists. There was Von Spakovsky, who testified during hearings for the earlier version of the bill that while he was not claiming North Carolina suffered from massive voter fraud, the potential for abuse existed. Tom Farr, a lawyer who spent many years working with the Helms organization, helped drafters of the bill in the House to sort through Department of Motor Vehicles data on distribution of driver’s licenses by race (blacks were more likely than whites not to have one, it showed). The Civitas Institute, which Pope co-founded, had been pushing for the provision ending same-day registration and shortening the early-voting period. (Pope told me he had no hand in the foundation’s work and hadn’t given the new law much thought.) The law’s provision removing student IDs, even those issued by state schools, from the list of acceptable identification had been championed by the newly formed Voter Integrity Project, a local group unaffiliated with Von Spakovsky’s Voting Integrity Project. “We are approaching it from a philosophical position,” Jay DeLancy, the group’s co-founder, told me. “There is fraud. How do you mitigate it?” Emails that would later emerge in court showed that in lobbying for another bill restricting student registration, DeLancy told lawmakers that, if successful, “it will shift the landscape of college-town voting all across the nation.”
Within two days, the law passed both chambers without a single Democratic vote. As he cast his “no” vote on the House floor, Michaux said, “You can take these 57 pages of abomination and confine them to the streets of hell for all eternity.”
The Justice Department, the N.A.A.C.P., the A.C.L.U., the League of Women Voters and a group of college students filed lawsuits, which were joined together in this summer’s trial, under the name of North Carolina N.A.A.C.P. v. McCrory.
To justify the bill’s necessity, supporters pointed to an audit the state conducted last year under a new provision of the law that requires it to crosscheck its voting rolls with those of other states. It had identified 35,000 potential double registrations. The state’s division of elections commissioner, Kim Strach — whose husband is on the state team defending the law — told lawmakers, “It could be voter fraud,” though she acknowledged the possible duplicates could also be related to common bureaucratic errors.
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A few weeks before the case was to go to trial, I stopped into the Statehouse office of State Senator Bob Rucho, a prime supporter of the bill. “When the people start losing confidence in their government, and the electoral process, then something needs to be done to restore it,” he told me. But when I called the Board of Elections recently, a spokesman told me that the number of suspicious registrations was now 11; none had so far produced a criminal fraud charge.
On July 12, the Sunday before North Carolina N.A.A.C.P. v. McCrory was to open, the Rev. William Barber II, president of the statewide N.A.A.C.P. organization, gathered more than 1,200 supporters and allies in the center of Winston-Salem for an evening prayer service beneath the vaulted ceilings of the Union Baptist Church.
Barber, 51, has a striking presence. More than six feet tall, broad-chested and slightly hunched from a congenital spinal condition, he speaks with a booming and practiced moral indignation. For two years, since the Republicans took control of the state, he has been running regular “Moral Monday” protests at the Statehouse. He argues that the nation is in the throes of “a third Reconstruction,” and that new voting laws like the one in North Carolina are an attempt at a third deconstruction. The old-guard members of the state’s civil rights movement view him as their rightful heir. (“He’s doing a great job,” Michaux said.) Republicans view him as a “demagogue,” as Wrenn called him.
As the sun began a hazy descent that Sunday, four generations of civil rights activists filed into the church, led by the grande dame of the trial, Rosanell Eaton, 94, a black N.A.A.C.P. plaintiff who defiantly trumped the system as a young woman by memorizing the preamble of the Constitution and then acing the literacy test in which she was asked to recite it. Wearing a black-and-white church dress, a veiled black hat and full makeup, she told me the new law offended her deeply. “It’s disgusting,” she said, spitting out the word like stale gum.
Barber approached the lectern in a bright fuchsia shirt and red prayer shawl. He ticked through the dramatic, violent history of the 1950s and 1960s that led to the passage of the Voting Rights Act with a religious-political rage. He then led his congregation through the fairly technical business of Capitol Hill lawmaking and Supreme Court law striking.
“After a black president had won two elections, five justices arrogantly said they knew more than the evidence considered by 98 senators,” he said. “Then on June 25 — a day that will go down in political infamy — they voted to gut Section 4 of the Voting Rights Act, and thereby nullified preclearance under Section 5 — which meant, on June 26, 2013, we had less voting rights than they had on August 6, 1965.” The crowd still with him, hooting and clapping, he shouted with the full capacity of his abdomen his catchphrase for the trial: “Like those who answered Dr. King’s call 50 years ago, THIS … IS … OUR … SELMA … NOW!”
Selma, in this case, was a heavily fortified, wood-paneled federal courtroom in Winston-Salem. The next morning it was filled with the lawyers from the five legal teams, including that of the Justice Department. The plaintiff’s lead attorney was Penda Hair, co-director of the civil rights group Advancement Project. In her opening argument, she said the voting laws established in the many decades since the Voting Rights Act had helped blacks and Latinos to vote. Removing those laws would affect those same people disproportionately. Quoting Barber, she repeated, “This is our Selma.”
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The sun was beating down hard when court broke that day. Outside, Barber had gathered a few thousand protesters, including some legends of the old movement, like Joseph McNeil, one of the four students who started the Woolworth’s sit-in, and Bob Zellner, the first white field secretary of the Student Nonviolent Coordinating Committee. As the protest made its orderly way down Main Street, with the police directing traffic, I couldn’t help thinking about the words of Farr’s co-counsel, Butch Bowers. “The history of North Carolina,” he said, “is not on trial here.” These thousands of people certainly did not agree.
They most likely would have found more to agree with in an observation Henry Frye made to me, sitting on his porch two days before the trial started. “It’s not quite what it was a long time ago,” he said. Pondering for a minute, he laughed and added, “It’s more sophisticated now.”
N.A.A.C.P. v. McCrory is now in the hands of U.S. District Court Judge Thomas D. Schroeder, as of Friday. Key Voting Rights Test Now in Federal Judge’s Hands. His ruling is not expected for many weeks and is certain to be appealed.