It took America almost 200 years to recognize the necessity to making Freedom Enforceable ... and less than 50 years to slit Justice’s throat and leave her to bleed out on the Court House steps.
It took America almost 200 years to recognize the necessity to making Freedom Enforceable ... and less than 50 years to slit Justice’s throat and leave her to bleed out on the Court House steps.
Introduction
You probably don’t know why he's important, but Sylvester Magee died in 1971. He was the last living former Slave of the United States of America. The fact that this man's life over-lapped the lives of virtually every person reading these words now is demonstration of a truth that most of us in the USA don't recognize, that Slavery is just barely out of the realm of living history.
Following the official end of that abomination in January 1865, those who felt entitled to subjugate their brothers and sisters on the basis of color of skin and/or family heritage were able to continue their near hegemony on power by other means. At first, they used terrorism and soon that terrorism helped give birth to the corrupt the Jim Crow Laws. Taken together, they assured that for millions of Citizens that the guarantees of participation in our Democracy as laid out in the Fifteenth Amendment (ratified February 3, 1870, nearly five years after the official end of Slavery) were just as an empty a platitude as “All men are created equal” in our Declaration of Independance, ratified almost one hundred years earlier still.
Another thing you probably don't know is that we live under the beneficence of a Second Constitution. The original was drafted by arduous process between 1786 and 1790, while the radical new one, born in the wake of the Civil War but taking a far longer process to realize, didn't require a single word of the Original Constitution to be changed. This second Constitution was constructed out of a flurry of Amendments to the original born in the Legislature Branch of the Federal Government (three Amendments in a mere five years, a shockingly short period of time, they're often called "the Civil War Amendments") and bolder interpretations of the original text by the Judicial Branch, the Supreme Court of the United States (SCOTUS). The Judicial contributions to this Second Constitution didn't really start appearing until the first half of the 20th century. This Second Constitution has many purposes but one more important than any other: it made it clear that the Original Constitution's restraints on the government power not only applied to the Federal Government, but those of the individual States as well.
1.
Once upon a time, the Federal Constitution could not protect you from most State-based tyrannies. Seven States had within their lesser Constitutions explicit denial of certain people from the right to hold Public Office based on their Spiritual Beliefs, and this explicitly contradicted the Establishment Clause of the Federal Constitution. Those Un-Constitutional Constitutions were not silenced until the SCOTUS stepped in decades after the Civil War was done.
This essay is about the slow evolution of the power of the Fifteenth Amendment, a terrible SCOTUS decision that gutted it five years later, the Amendment's restoration with the passing of the Voters' Rights Act almost a century later, another terrible SCOTUS decision that gutted partially gutted the VRA decades later still, and the on-going attempts by the Legislative to restore that. The Fifteenth reads as follows:
Section 1. The 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.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Only five years after the ratification of the Fifteenth, a less-than-enlightened SCOTUS reached what could only be called an Un-Constitutional Decision, because they deliberately nullified the Fifteenth in the case of USA v Reese. That’s not what they said they did, but that’s exactly what they did.
SCOTUS claimed that the Fifteenth didn't confer the right of “Suffrage,” as Voting Rights are called, it only prohibited exclusion from voting on clearly expressed Racial grounds. The decision encouraged a host of legalistic fictions as long as Racism dare-not-speak its name. Soon we had clearly Racist poll taxes, literacy tests, and grandfather clauses (which excluded the grandchildren of those who couldn’t legally vote from ever getting the right to vote). It also stripped the Federal Government of Enforcement powers regarding the Fifteenth.
The Fifteenth had ended the Black Codes in the South and some places in the North, but Reese made room for the Jim Crow Laws, which were all-but identical.
2.
This undeserved extension of the denial of this Nation's promise, the American Promise, would last almost a full century more. The denial would not be seriously challenged until the passing four key pieces of Civil Rights legislation in the 1950s and 1960s, the most important being the Voting Rights Act (VRA) in 1965. It was only then that all Americans were protected from Voter Discrimination based on “race, color, or previous condition of servitude.”
So, and try to understand this, before the passing of the VRA, there was not one single day in the history of the USA that we could honestly say we were even attempting to be a legitimate Democracy.
The VRA faced bipartisan opposition but passed because of an equally bipartisan coalition that demand that the USA finally become, well, the USA. All those opposed to it were eventually either removed from office, apologized, or switched Political Parties because they were they less welcome where they were than before this titanic Federal Congressional battle.
In a complex political concurrence, the Republican Party started the process of pushing through the most important Civil Rights Bills but needed the Democrats to realize them. This is a linear progression, most the same people fighting the same cause across three Administration of the President of the United States (POTUS), with one Republican and then two Democrats in the Oval Office. The Democrats were in the Federal Senate when this started and were then allied with the Republican POTUS. Though the VRA, specifically, was a mostly a Democratic Party initiative, it was the logical conclusion of what the Republicans began. Moreover, the VRA faced its fiercest opposition from other members of the Democratic Party, so the then-Democrat POTUS required the Republicans to end a protracted Federal House debate just like the earlier Republican POTUS had to turn to the Democrats in the Federal Senate just a few years earlier.
The Democrats who wanted the Bill stopped, called "Dixiecrats" argued that Federal Government had no role in Elections, and true, the Constitution does leave most of the authority to the States, but both Article One (so included in the Constitution from the very beginning) and the Thirteenth through Fifteenth Amendments of the Constitution (known as the Civil War Amendments) make Federal responsibilities pretty explicit.
After the Bill passed about 20% of the Dixiecrats (Southern Democrats who supported Jim Crow and Segregation and who were not on board with the Democrat Party's new Civil Rights Orthodoxy) became Republicans. That was the end of a long process: Starting in 1920s, the pro-Jim Crow and Segregation Democratic Party had started Liberalizing itself, reflecting an in-Party powershift from the rural, deep south, to the urban, northeast. At the same time, starting in the 1960s, the Republican Party of Lincoln, becoming more like what the Democrats once were.
From the moment the Bill passed, Southern Conservatives of both Parties attacked it. It took only a month for the first Constitutional challenge to be filed, from former-Slave and active-Jim Crow State, South Carolina, which was ruled by Democrats at the time.
At the same time, a bluntly racist “Southern Strategy” emerged wherein Republican Candidates, even though who were not especially Racist themselves, actively Race-Baited in their campaigns to tap into the White Rage in the former Slave States -- they were encouraging Democrats who didn't like that Party's New Orthodoxy to switch sides. This was all-but invented by failed Republican POTUS Canidate Barry Goldwater and most effectively mimicked by the more successful by POTUS Canidate Richard Nixon.
Nixon was Eisenhower's Vice-President (VPOTUS), so pro-Civil Rights then, but was apparently resentful that then-Federal Senator John F. Kennedy got the Black Vote during Nixon's humiliating defeat at the hands of Kennedy during the 1960 POTUS Campain. Nixon’s Aide Kevin Phillips was an early Mephistopheles here, he'd joined the Nixon campaign a mere three years after the VRA passed and was the architect of Nixon's version of the Southern Strategy.
After finally winning the 1968 POTUS Election, Nixon's Civil Rights record was dramatically self-contradictory, he expanded Affirmative Action, bringing more Blacks than ever before into the White-Collar Workforce, but he also attempted to weaken their Right to Vote in his failed attempt to weaken the VRA, as he put it, to take the “monkey…off the backs off the South.”
3.
Nixon was forced to resign in disgrace in 1974. His VPOTUS, Gerald Ford, became POTUS. Ford was a VRA supporter, but the next Republican POTUS after Ford, Ronald Reagan, would also attack the law which had been culmination of Republican POTUS Eisenhower's ambitions. Their motive was born of the fact that the Civil Rights Revolution put the Black and other minority constituencies firmly in the Democratic camp -- basically, the Democrats got all the credit for what the Republicans started.
Soon, this spiteful reaction was feeding on itself, every attempt by the Republicans to threaten Black Suffrage succeeded only in guaranteeing that Blacks would even more overwhelmingly embrace the Democrats, perhaps forevermore. This had been predictable since Kennedy's defeat of Nixon and the probable motive for Nixon embracing the Southern Strategy. Soon after, when the VRA got passed, then-POTUS and Democratic Lydon B. Johnson was ugly and smug about it (I'll address that later).
Today, the vast majority of young Americans see look at the Republican Party as "backwards-looking, intolerant, and racist" (as demonstrated in just barely post-2012 Election study by the College Republicans) and then the overwhelming popularity of the Democratic POTUS Canidates in 2016 and 2020 among just-of age voters.
This would become ultimately self-defeating, as articulated by Republican Senator Lindsey Graham. In 2012 he predicted Republican POTUS Canidate Mitt Romney’s humiliating defeat against Democrat Barack Obama even during the celebration of Romney's win during that year's Republican Primary, “The demographics race we’re losing badly. We’re not generating enough angry white guys to stay in business for the long term.”
In the last eight POTUS Elections, a space of thirty-two years, the Republicans carried the Popular Vote only once, through it did win two other Elections based on the Electoral Vote.
4.
So, the Republicans were vital to creating the VRA, then spent decades fighting it, and then, finally, stopping fighting what they had done so much to help create. Ronald Reagan was the last Republican POTUS who tried to weaken it, and he left office before Britney Spears was born. Reagan's VPOTUS, the elder of the two George Bushs, proved to the next POTUS and he embraced it. (One could argue that POTUS Donald Trump is not a fan of the VRA, but for reasons I'll get to, the VRA was less of an issue by the time he was elected in 2016.)
Why this second Republican change? Well, a lot of reasons, but a very important one is that every effort to gut the VRA failed. The law’s Constitutionality was challenged before SCOTUS in 1966, 1973, 1980, 1999, and 2009, and upheld each time. Every time it came up for reauthorization before Federal Congress, 1970, 1975, 1982 and 2006, the margins of support increased. In 2006, the bipartisan support of it became nothing short of breath-taking, the margin in favor was 390-33 in the Federal House and 98-0 in the Federal Senate.
But that, of course, was before the contentious and racially charged Ultra-Conservative revival of the “Tea Party Revolution” in 2010. After that fateful election, the increasingly balkanized Federal Congress all but abandoned the bipartisanship that had made the VRA possible in the first place.
When the VRA was before the SCOTUS in 2009, the Court did demand that Section 4’s formula for establishing which political Districts would fall under Section 5's enforcement powers be updated. Understanding this demand is key to understanding the SCOTUS monstrous decision of 2013.
5.
Before I get to the next part, I've got to tell you something else you probably don't know: You don't have a Constitutional Right to Vote. I know you think you do, but you don’t.
Though several Constitutional Amendments and Federal Laws forbid specific types of voting discrimination, that same Constitution still leaves it mostly up to the States to decide who is or isn't a legitimate Voter, and simply being and American Citizen is not legitimate enough participate in our Democracy in many parts of this country. Both Parties have exploited this weakness in our system, attempting to come up with legalistic excuses to disenfranchise any group they can identify as being more favorable to the other Party. There are hundreds of ways of creating obstacles to a demographic without actually admitting to that the handful of specifically outlined illegal discriminations are in play.
Section 5 of the VRA concerns “Preclearance.” It’s a rule that certain districts must apply to Federal Department of Justice (DoJ) or a three-judge panel of the United States District Court in the District of Columbia before they can make any change to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting..." Preclearance puts the burden of proof on the accused Government (State or Local) to prove that they are not trying to discriminate before they get their way on anything. Enforcement is all important, because the lack of enforcement is what made the Fifteenth Amendment so nearly meaningless for so very long.
Not all States or Voting Districts face Preclearance, that's where Section 4 comes in. Section 4 is how the Federal Government determines which Districts will face Section 5. In other words, if there’s no Section 4, then there’s no Section 5. To fall under Section 4's formula the State or District had to have among the Nation’s worst histories of Voter Suppression in the years before the 1964 election. It includes parts of the Bronx, New York, where I grew up, and Brooklyn, New York, where I later lived. Mostly though, Section 4 targeted southern States.
Section 4 has always the main target of Constitutional challenges of the VRA. As far as I know, neither the Bronx nor Brooklyn have displayed any interest in challenging the VRA any time recently, the challenges almost always came from former Slave-States/Jim Crow states, and I do not believe there’s any coincidence in that.
Had the Federal Congress acted after SCOTUS' 2009 demand, which specifically asked them to review Section 4, the 2013 case never would have happened. But after the 2010 Tea Party Revolution, Congress seemed unable to get anything done.
But maybe no updating was really necessary. The 2009 SCOTUS case was triggered by a DoJ Intervention in Shelby County, Alabama. In the wake of that intervention, Law professors Christopher Elmendorf and Douglas Spencer surveyed data from that election and found that “[The VRA] is remarkably well tailored to the geography of anti-black prejudice.”
Shelby County would then become the center of the 2013 SCOTUS case as well.
6.
Not only the VRA, but all Voting Rights have been deprioritized by SCOTUS for at least a decade prior to 2013, and the Justices who displayed the least respect for Individual Voting Rights were always Republican appointees. Reagan, the last American POTUS to try to weaken the VRA, appointed Anthony Kennedy, Sandra Day O'Connor, William Rehnquist, and Antonin Scalia to the Court. The Conservative Majority was then locked-in when Clarence Thomas was appointed by elder POTUS Bush.
In 2000, this Gang of Five guaranteed that the ballots cast in a POTUS Election by millions of Floridians would not be officially counted, thus rendering the democratic process a complete farce. This was Bush v Gore, wherein George Bush Jr, the son of the former POTUS and the brother of the Florida Governor whose policies created the fiasco. Younger Bush became the first POTUS of the USA after losing the Popular Vote in more than a century; and when the accounting was completely done months later, it was proved that an accurate count would've also given then VPOTUS Al Gore, winner of the Popular Vote, the Electoral Vote as well.
Further repercussions of this decision would include historically high budget-deficits, three or more unfunded wars, legalized torture, the worst financial crisis to 70 years, and continuance of the SCOTUS’s Conservative Majority with the appointment of Samuel Alito and John Roberts. Roberts is especially significant because, as a young lawyer in the DoJ during the POTUS Reagan Administration, he was part of the team that had worked aggressively to weaken the VRA. Roberts would eventually become Chief Justice of SCOTUS.
In 2008 this Gang of Five, with its newish line-up of Kennedy, Roberts, Scalia, Alito, and Thomas, overturned a piece of bi-partisan anti-corruption legislation that restricted the amount Corporations could invest in a Political Campaign in the Citizen's United case. This newly legalized bribery-light has ushered in an era of unlimited, and frequently anonymous, Corporate spending and the wide distribution of dishonest attack-ads that the Candidate's couldn't be held accountable for. It’s worth noting that at least two of these Justices, Roberts and Thomas, received financial remunerations from the very groups that benefited from the Citizens United Decision. Had any other judge in the country sat on a case that they received money from one of the interested parties, he/she would face disbarment, but the Supreme Court is exempted from those rules.
And 2013, barely more than three years after the last time VRA was heard before the SCOTUS it was put on trial again. Returning to an issue so quickly is unusual and was clearly a result of a combination of political lobbying and the do-nothing Federal Congress’ failure to follow up on the SCOTUS 2009 directives.
Where this was going to go was obvious during oral arguments when Justice Scalia said the following:
“Well, maybe it was making that judgment, Mr. Verrilli. But that’s — that’s a problem that I have. This Court doesn’t like to get involved in — in racial questions such as this one. It’s something that can be left — left to Congress.
“The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term.
"Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
When Scalia stated that having protection under the law from demonstratable institutional racism was a “racial entitlement,” there were audible gasps among Journalists. Scalia's theory seems to be that the SCOTUS should stay out of questions of racial injustice unless, at long last, the Federal Congress finally something about it, but his convoluted logic tried to make Congress's increasing support of the anti-discrimination law evidence of a discrimination. It would be an over-statement to say this was 1875 all over again, but it certainly stank of it.
That day, Justice Sonai Sotomayor (one of the SCOTUS's Liberal) challenged Scalia's theories with her own line of questioning, making headlines as she implicitly (or maybe explicitly-implicitly) underlining Scalia poorly-disguised racism. She pointed out that the plaintiff in this case, Shelby County, Alabama, “may be the wrong party bringing this” as Alabama rates remains even today as one of the worst offenders of Federal Voting Right Laws in the USA.
Then Justice Elena Kagan (another Liberal) picked up the torch by reciting Alabama’s current record under existing Civil Rights Laws, noting that the State would be the No. 1 offender in one category, and the No. 2 in another. “Under any formula that Congress could devise [for coverage under Section 5], it would capture Alabama.”
But the four Liberals, Sotomayor and Kagan, along with Ruth Bader Ginsburg and Stephen Breyer, do not a Majority make. The Gang of Five not only overturned a piece of legislation that had bipartisan support, but also almost 50 years of SCOTUS prescient. They stripped the VRA of Section 4, and Thomas went as far as declaring Section 5 also unconstitutional – no one else went as far as that, they were satisfied by merely rendering it meaningless.
In the Majority Opinion, Roberts argued that the formula in Section 4 was "based on 40-year-old facts having no logical relationship to the present day ... Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, ‘[v]oter turnout and registration rates’ in covered jurisdictions ‘now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels... [We] cannot justify the considerable burdens created by Section 5.”
7.
Not for nothing, Robert’s statements concerning “Blatantly discriminatory evasions of federal decrees are rare” are demonstrably false.
Starting with the 2010 “Tea Party Revolution” there has been an unprecedented (or at least since 1965 unprecedented) wave of voter suppression laws passed nation-wide. Six of nine states fully covered by Section 4, all in the South, passed new voting restrictions. Almost all were pushed through by suddenly empowered Republican State Legislatures in the lead-up to the 2012 election in an attempt to unseat the dark-skinned Incumbent POTUS Obama. It was a campaign where the race-card was played openly by Republican Candidates and Corporately funded Super-PACs that only legally existed because of the tender mercies of the Gang of Five and Citizen's United. In the three years prior to this decision, thirty-one discriminatory Voting Suppression Laws had been blocked under now Section 5, now suddenly rendered toothless. In other words, we need the VRA more than we had in more than a generation.
And it is not as if we’ve ever not needed it. Going back not three, but 25-years, the NAACP provided a short list of the most important VRA victories:
1987–A Mississippi law dating back to 1892 that enacted a dual voter registration system 'to disenfranchise Black voters' was struck down (that victory was under Section 2, not 5).
1990--Dallas County, Alabama, sought to purge its voter rolls of many Black voters. DoJ challenged the purge as discriminatory, noting that it would have disqualified many citizens from voting 'simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.' (This one has a more than passing resemblance to Florida’s uninhibited voter-suppression, which directly contributed to the fiasco of the 2000 POTUS election, but unfortunately, Florida is not under the former auspices of Section 4 and therefore didn't face Section 5's preclearance).
1992–Mississippi again, when it attempted to reenact dual registration with a law near-identical to the overturned in 1987. It was knocked down again, this time under section 5.
1993--the City of Millen, Georgia, proposed to delay an Election in a Black-Majority District by two years, leaving that District without Representation on the City Council while the neighboring White-Majority District would have three Representatives. DoJ blocked the proposal.
Same year, and same district--The county then sought to move a polling place from a predominantly Black-Majority neighborhood in the City to an inaccessible location in a White-Majority neighborhood outside City limits. Again, blocked by the DoJ.
2000--Albany, Georgia, proposed a Redistricting plan that DoJ found to be 'designed with the purpose to limit and retrogress the increased black voting strength…in the city as a whole.’
2001--Kilmichael, Mississippi, the Mayor and all-White five-member Board of Aldermen of abruptly canceled the town's Election after 'an unprecedented number' of African American Candidates announced they were running for Office. DoJ required the Election be held and this to the first Black Mayor and three Black Aldermen.
2003–Charleston County, South Carolina, after Black Canidates won a majority of the Seats on the School Board for the first time in history, the County proposed an at-large voting mechanism for the Board. The proposal, made without consulting any of the Black members of the Board, was found to be an 'exact replica' of an earlier voting scheme that a federal court had already determined violated the VRA.
2004--Waller County, Texas, after vainly threatening Criminal Prosecution of two Black Students because they announced their intention to run for Office, the County then attempted to reduce the availability of Early Voting sites near a Historically Black University.
2005--Texas, after the Republicans took a Majority of the seats in the State House for the first time since Reconstruction, they engaged in a controversial Redistricting project. DoJ concluded that the final map violated the VRA, "the redistricting plan illegally diluted black and Hispanic voting power in two congressional districts." Texas appealed to the SCOTUS, which upheld DoJ’s determination in one of the two districts, the 23rd Congressional District, was racially Gerrymandered, apparently to try to protect a Hispanic Republican representative. The District map had to be redrawn with oversight by the SCOTUS.
2006--Texas again attempted to redraw a different Congressional district, this time to reduce the strength of Latino voters. DoJ found "the mark of intentional discrimination that could give rise to an equal protection violation," and ordered the District map redrawn.
Same year, same state--In retaliation, Texas sought to undermine that Court's order by curtailing Early Voting in the District. DoJ blocked this with a Section 5 Preclearance.
2008--Shelby County, Alabama, discussed above. DoJ launched an investigation based on a complaint by a Citizens Group. Though the initial complaint proved unfounded, the investigation unveiled a cesspool of other discriminatory practices, and the County was blocked from eliminating the only Black-Majority City Council District in the city of Calera. This Section 4 & 5 victory was the one that set-up the 2013 VRA defeat in another Shelby case.
2012–Texas, a law that would have required Voters to show photo identification was knocked down, ruling that the legislation would impose “strict, unforgiving burdens” that potentially disenfranchising as many as 800,000 already registered Voters who lacked government-issued photo ID.
Same year, same state -- Redistricting maps were found to discriminate against Black and Hispanic voters, effectively killing the new Districts before they could take effect for the up-coming POTUS Election.
Though discriminatory laws can still be challenged in court, the process had become lengthier and the burden of proof was shifted off the accused Government and onto the aggrieved Citizen and the DoJ. The 2013 Shelby ruling came after the POTUS election, and during his second term, POTUS Obama insisted on the DoJ give greater focus on Voting Rights protection even after, and because, the VRA and was weakened and with it, the DoJ's power, so now the DoJ had to work that much harder.
But Obama stepped down in 2017, and the next was POTUS Donald Trump. Though there's no evidence he directly attempted to additional weaken the VRA, there's plenty Trump's DoJ was not being as forceful on this issue as Obama. Challenged on this in 2020, the Trump's DoJ provided lists of cases Voter Rights it had prosecuted to Journalists. But when the Journalists showed these lists to Attorney William Yeomans, a formerly of the DoJ's Civil Rights Division and with more than two decades of this specific experience, he was unimpressed:
“The list is an embarrassment. It documents that the voting section has abdicated its responsibility to enforce the Voting Rights Act. There is little of substance here ... This is pathetically little production for a very large section of lawyers.”
Not even two hours after the ruling, Republican Texas Attorney General Greg Abbott (later Govenor) vowed to implement a 2012 voter ID law that had been blocked by VRA. He fired off tweets, “Eric Holder can no longer deny [voter ID] in [Texas].” He went one step farther, “Redistricting maps passed by the Legislature [which in the past had been blocked by the VRA] may also take effect without approval from the federal government.”
Meanwhile Democratic Federal Representative John Lewis, who was, back in the early 1960s was a street-level activist agitating for the passage of the VRA and other Civil Rights legislation and nearly beaten to death by racist thugs because of his activism, had a different reaction:
“Today, the Supreme Court stuck a dagger into the heart of the Voting Rights Act of 1965...
“These men never stood in unmovable lines. They were never denied the right to participate in the democratic process. They were never beaten, jailed, run off their farms or fired from their jobs. No one they knew died simply trying to register to vote. They are not the victims of gerrymandering or contemporary unjust schemes to maneuver them out of their constitutional rights.”
In the North Carolina Statehouse, leading Republicans like Bill Cook, Norman Sanderson, Ronald Rabin, Neal Hunt and Shirley B. Randleman co-sponsored a piece of Legislation, State Senate Bill 666 (I'm not kidding about that number) aimed at stripping selective Citizens of their right to Vote, or punishing them for exercising it, like stripping parents of a $2,500 Dependent Child Tax Deduction if their child voted in the Town or City other than that of the parents. It obviously targeted young men and women attending college. It is clearly an attempt to throw off the Voter representation in counties like Watauga and Orange, where college-age Voters had been a key part of the Democratic Party's dominance. (How very similar this is to Waller County, Texas in 2004).
This same bill would've cut a week off of the Early Voting period and forbid Counties from having more than one location for Early Voting -- no matter how large they were. As had been established in Voter Suppression lawsuits in other States, curbing Early Voting is a tactic to marginalize the working poor, especially people of color voters, who are more likely to vote Democratic (again, how very similar this is to Waller County, Texas in 2004).
Oh, yes, there will also be new Voter Identification rules. It was estimated 500,000 North Carolinians lack the ID needed to vote under the threatened law, and a third those were African Americans (one more time, how very similar to Texas).
There is no justification for these provisions except to stop people from voting.
In the months that followed, state-wide protests against 666 led to hundreds of North Carolinian Citizens getting arrested but also the defeated of the law. But every year in the decade since, related Bills have been introduced, some have passed, and some survived Court challenges.
In 2013, the SCOTUS Conservative Majority was only 5 - 4, but as I write this, it's now 6 -3. In 2013, those Conservatives were not as balkanized and they would later become. In one case where some Conservatives joined the Liberals, the Court struck-down a sixteen-year-old anti-Homosexual law, the Defense of Marriage Act and required Gay Marriage be legalized in the whole of the USA. In that case, Justice Scalia wasn't in the Majority and in his outraged Dissent seemed ridiculously hypocritical, "We have no power under the Constitution to invalidate this democratically adopted legislation."
Dear Mr. Scalia, what to hell do you think the VRA was?
9.
Anytime over the last decade, the Federal Congress could've fixed this by up-dating Section 4 or better still, making Section 5 apply Nation-wide. But there was no will in Congress: Both Senate and Houses had split Majorities for almost for the whole decade, and the Majorities within either Chamber have mostly been narrowed, so little boldness has been on display expect in the increasingly heated rhetoric. Repeated predictions of a transformative "Red" or "Blue" waves haven't taken place either.
Georgia 2020 is instructive here. Former POTUS Trump continues to be in legal hot water over trying to pressure Georgia's Governor, Brian Kemp, and Secretary of State, Brad Raffensperger, to illegally doctor Vote Counts in Trump's favor. Both Kemp and Raffensperger are Republicans and were (at least then) Trump supporters, but neither would break the law for him. Good for them, but they were being pulled in another direction too:
Their Party, the Republicans, was at risk because the State's population was expanding, and the new Citizens often fell into traditionally Democratic demographics. Add to that, an anti-Trump rage had energized the State's up-and-coming Liberals. So, the Governor and Sectary of State stood up to Trump in November 2020, but almost immediately thereafter protected their Party (let's say every Republican except Trump) with headline-grabbing Voter Suppression laws. Now lines are getting longer because Voting sites have been shut down by the hundreds in 2021 - 2023, something that the VRA used to empower the DoJ to stop.
Throughout the whole the USA, there's been a post-2020 surge in Voter Suppression Laws that made the post-2013 surge pale in comparison. This trend was studied by the Brennan Center back in 2018 (so in the wake of the 2013 surge, but before the 2021 one) and there was a clear pattern, the States previously covered by Preclearance rules, the "Shelby States" like Georgia, had increased the purging of Voters while most of the "non-Shelby States" purge rates mostly stayed the same.
Well, Federal Congress didn't act, but in Georgia, in 2020, the Republicans lost both of its Seats in the Federal Senate, both of the Canidates were Incumbents to boot, an unthinkable turn of events had Anti-Trump Rage not been part of the equation.
Georgia's Republicans loss of those two Federal Senate seats gave in-coming Democrat POTUS Joe Biden an extremely thin Majority in both of the Federal Congress' Chambers. POTUS Biden had been Obama's VPOTUS and entering his new role, he chose to double the size of the DoJ's division devoted to Voting Rights, reversing Trump's indifference to the same.
10.
Biden unveiled two new Voting Right Bills, Freedom to Vote Act and the John Lewis Voting Rights Advancement Act (eventually merged into one Bill) to combat the State-level Voter Suppression Laws which had become so much more common in the wake of his defeat of Trump, and were now fueled by Trump's paranoid, false, and I say traitorous, claims that the Election he lost was rigged.
These Bills would restore some of the power lost to the VRA: Some Preclearance would be re-established, minimum standards for the availability of Early Voting would be set, so would standards for what forms of Voter Identification would be accepted at Polling Places, standards were set for the easing of the Voter Registration processes, and some of the more extreme abuses of Redistricting would be forbidden.
These Bills needed only simple Majorities to pass in the Chambers where Biden's Party held Majorities but, of course, nothing is actually simple in this world.
Initially it looked promising. The Democrats had the Majority, and sixteen of the sitting Republican Senators had voted to Reauthorize the VRA in 2009, so Bipartisanship was not an absurd wish. But the Republican's new Orthodoxy of opposing Federal Voting Laws was underestimated. Only one Republican stood by the Bill, one who wasn't in office in 2009. The Republican Senators seemed to be following the push by their State Legislatures to additionally suppress. The Republicans were arguing the exact same thing the Dixiecrats did in the 1960s, that the Federal Government had no role in Elections, even though the Constitution is explicit that it does.
These Bills needed only simple Majorities to pass in the Chambers where Biden's Party held Majorities but, of course, nothing is actually simple in this world. The Republicans banded together in a powerful Filibuster.
A Filibuster is something that isn't in the Constitution, but still has a long history. Before a Bill can be voted on, the Debate of the Bill must end, and a Filibuster is a mechanism invented in 1841 where a Minority can keep the Debate going for the sole purpose of blocking the Vote from taking place. Most Filibusters are grand-standing act by singular Senators that collapse in a couple of days (Republican Federal Senator Rand Paul is especially famous for that) but a well-organized Filibuster can block a vote indefinitely, perhaps eternally.
It should also be noted that the most famous Filibuster of all is fictional, in the movie "Mr. Smith Goes to Washington," concerned the title character attempting to prove he was innocent of corruption charges, while in the real world most are dedicated to stopping Voting Rights, Civil Rights and Labor Protection Legislation.
The increasing bottle-necking the Filibusters were causing made it necessary in 1917 to create a mechanism to end Debate, basically a Vote to make a Vote happen. Since then, reacting additional Filibuster crisis, the number of votes needed to make a Filibuster end was reduced and now the Minority is easily over-ruled if they don't have at least 21% of the Senate on their side. But even with those Rule Changes, things just kept getting worse.
Filibusters were actually rare until 2009, but that year the Democrats had a healthy Majority in the Senate and POTUS Obama had just been Elected by a landslide; this embittered the Republican Minority, so the Republicans blocked almost every major piece of legislation. That year saw a record sixty-seven Filibusters in only the first six months. That had never been seen before and no one understood that that record was to be broken again and again thereafter, almost always by Republicans.
As all but one Republican stood together to block the Legislation yet another change in the Senate Rules would be required to end it, unlike ending the Filibuster, the rule change needed only a simple majority.
The Democrats had the majority, but it was so narrow that Biden needed every single Democrat on his side to get the Rule Change and he didn't have them all. Democrat Senators Joe Manchin and Kyrsten Sinema both argued that subverting normal Senate processes would only make the Chamber even more hostile and partisan, a weak argument because Filibusters in general were on the rise, just as they had been in 2009.
Manchin had helped negotiate the Bills with Republicans when things had looked a bit more promisingly, and when he later chose not to break the Filibuster he stated, “Voting is very important. It is a bedrock of democracy. But to break the opportunity for the minority to participate completely, that’s just not who we are.”
Meanwhile, Sinema has since quit the Democratic Party because she knows she'd lose in the upcoming Democratic Primary
This is proving darkly similar to 2009, as the number of Filibusters were on the rise. Then the Democrats had a majority in both Houses of the Federal Congress. In the 2010 Congressional Elections, the Tea Party Revolution, the Democrats lost the House of Representatives, so we had a situation where the majority in one House was siding with the minority in the other, effectively freezing almost everything come the seating of the new Representatives in 2011.
In 2022, a few months after the failure to break the Filibuster in the Senate, the next Federal Congressional Election cost the Democrats their narrow majority in the House of Representatives, and the new Republican majority was siding with the obstructionist Republican minority in the Senate. And that killed all chance of the Voter's Rights Bills passing in the foreseeable future.
And since then, the State level Voter Suppression Laws have continued to mount.
Epilogue
Way back in 1964, in the lead-up to the passage of the VRA, POTUS Johnson, in his patented racism, cynicism, and insight, hit the nail right on the head, “I’ll have those niggers voting Democratic for the next 200 years...These Negroes, they’re getting pretty uppity these days and that’s a problem for us since they’ve got something now they never had before, the political pull to back up their uppityness. Now we’ve got to do something about this, we’ve got to give them a little something, just enough to quiet them down, not enough to make a difference.”
Johnson was the most directly responsible for more Civil Rights legislation actually getting passed than any other POTUS in USA history, but he was also a notorious vulgarian and had supported Segregation before embracing Civil Rights. This quote come from an interview of Air Force One Steward Ronald M. MacMillan by Journalist Ronald Kessler in 1995, so decades after the fact, and MacMillan was repeating what he overheard as two State Governor's as they complained how Johnson mistreated them. The veracity of the quote has been challenged, but still, its nastiness is fully consistent with other of Johnson's memorable fits of profanity and harassment.
The quote is often cited by Conservatives trying to condemn Johnson’s hypocrisy and that's fair enough ... except that these same Conservatives keep on insisting on making Johnson's prediction come true. And it keeps coming true because the VRA did ultimately make a difference.
Like a Black man in the White House level of difference.
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