Recently, the state of Georgia passed a law that makes it harder for people to vote. President Joe Biden called the law “Unamerican.” Unfortunately, I disagree with the man. Sadly, voter suppression is as American as it gets.
The end of the Reconstruction Era in America represents the most extreme example. Following the Civil War, many states in the South had large Black populations. You know, because those individuals had been enslaved. Indeed, according to data I analyzed from the 1870 census, over a third of people in the three southern Census divisions was Black (compared to numbers as low as 1-2 percent elsewhere). And, given that the South had lost its slavery-inspired revolt against the 1860 presidential election, those individuals — mostly former slaves — were now free. Which means that decisions had to be made with respect to voting rights for these individuals.
To this end, the 15th amendment was ratified in 1870. Section 1 makes it pretty clear about how these new citizens should be treated with respect to voting rights. “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.” And, at first, it worked. In eight southern states, Black turnout was as high as white turnout in the 1880 presidential election.
But, the southern power structure was nothing if not persistent. By 1890, Mississippi Democrats (the party suppressing votes back then) had succeeded in implementing poll taxes and literacy tests explicitly designed to stop Black people from voting. Other states followed suit with their own “Jim Crow” laws. Estimates suggest that prior to the 1960s, in a state like Mississippi, just seven percent of Black voters were registered. The number quickly exploded to 54 percent by the end of the 1960s. What happened?
The Voting Rights Act
In 1965, then President Lyndon B. Johnson signed The Voting Rights Act. The law eliminated discriminatory practices like literacy tests. And lest you think, “well, shouldn’t people be able to read to vote,” these weren’t those kinds of tests. Instead, these tests included questions like “Who is the Georgia Commissioner of Agriculture?” When a constitutional law professor gave one version of the test to colleagues, 70 percent of the answers they gave were wrong. Plus, white people graded the tests of Black voters. So, you can imagine how fair it was. If you click on this link (scroll halfway down the page), you can see one of these ridiculous tests for yourself.
Another big thing that the law did was to introduce something called “preclearance.” Preclearance required jurisdictions with a history of discrimination to get federal approval before changing voting laws. As an example, in May 1978, Harris County Texas proposed consolidating polling stations for two districts. An objection was raised because voters in the majority Black district would have to cross a freeway without a pedestrian crosswalk to go to their new polling place. The idea of preclearnace was to prevent states and localities from doing things like this that explicitly or implicitly targeted Black voters (and minority voters generally).
And, it worked. A 2019 study from Desmond Ang isolated the effect of preclearance on voting. His study found that preclearance increased nonwhite turnout by 10 to 20 percentage points depending on the election year. And, the effect got bigger over time, due to the cumulative effect of all those changes that weren’t made. Indeed, the Figure below shows how the share of Black versus white voters who said they voted changed since 1976 (the first year I had data). Things now look relatively equal.
Figure. Black Share of Individuals 18+ Voting Minus White Share Voting, 1976-2018
The End of Preclearance and Going Forward
On June 25, 2013, preclearance was effectively ended by a Supreme Court decision. Justice Roberts wrote: “History did not stop in 1965. 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.” That’s right John, history doesn’t stop. But it sure as hell repeats itself.
As soon as preclearance was gone, the laws started coming. As just one example, the Brennan Center for Justice reports on a Mississippi Law that now requires a photo ID to vote (minority voters are less likely to have these). The law was passed in 2011, but was held up by preclearance. However, it was allowed to go into effect in 2013 after the Supreme Court’s decision. As Justice Ginsburg said: “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Now it’s raining in Georgia. To be clear, what Georgia passed is not a new Jim Crow. Hopefully, poll taxes and “literacy tests” are behind us. But, the law makes changes designed to make it harder for people, and Black people specifically, to vote. Perhaps the changes that most directly affect Black voters are the requirement of a driver’s license or state ID to get an absentee ballot, and the removal of drop boxes for mail in ballots from convenient locations. The time for mail in voting has also been reduced. These are subtle changes. But, over time, they are likely to add up in the same way preclearance had a bigger and bigger effect over time because of all those changes that weren’t made. Now, they will be made.
So where do we go from here? First things first. The Supreme Court didn’t really strike down preclearance. It just required Congress to develop a new formula to determine which areas should be subject to it. To date, no new formula has been determined. Maybe it’s time to give that new formula a shot. Secondly, Stacy Abrams has a great organization in Georgia called “Fair Fight,” that tries to combat some of these shenanigans. Maybe send them some money. Lastly, all these laws are predicated on the notion that large amounts of voter fraud happen. It doesn’t. Although, that won’t stop some organizations from throwing anecdotal evidence on 1,317 votes your way (it ain’t 7 million, but who’s counting). Maybe we all need to get honest about how big of a problem fraud is versus the problem of disenfranchising our fellow citizens.