The GA election and the Voting Rights Act

June 17, 2020

(Director’s note: Orville Vernon Burton is the inaugural Judge Matthew J. Perry Distinguished Chair of History and Professor of Pan-African Studies, Sociology and Anthropology, and Computer Science at Clemson University, and the Director of the Clemson CyberInstitute.  A recognized expert on race relations and the American South, and a leader in Digital Humanities, Burton served as vice-chair of the Board of Directors of the Congressional National Abraham Lincoln Bicentennial Foundation, 2009-2017.  In 2007 the Illinois State legislature honored him with a special resolution for his contributions as a scholar, teacher, and citizen of Illinois.  Elected to the Society of American Historians and was one of ten historians selected to contribute to the Presidential Inaugural Portfolio (January 21, 2013) by the Joint Congressional Committee on Inaugural Ceremonies.  Burton received the Governor’s Award for Lifetime Achievement in the Humanities from the South Carolina Humanities Council in 2017.  This is Clemson Humanities Now.)

On June 9, voting in Georgia was frustrated and infuriating.  Long lines, some with five hours wait time, and malfunctioning machinery were only part of the problem.  Because of the pandemic, fewer precincts were open for the election, and the problem was more pronounced in minority neighborhoods in the metro-Atlanta area.  Absentee-mail in ballots also went awry.  According to Stacey Abrams, “voter suppression has gone beyond Jim Crow to these labyrinthine administrative rules that trip up anyone who doesn’t have a law degree and a phalanx of lawyers at their side to help them get through the process if they are one of the intended targets.”  Official Jim Crow may have ended with the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  But that legislation has been misinterpreted and unenforced as of late.

Two things have changed the modern South:  air conditioning and the Voting Rights Act.  Sadly, Americans understand better how air conditioning operates than how the Voting Rights Act works.  Partly this is due to the better science education than the Humanities in our public schools.  The Voting Rights Act is especially interesting for Historians of democracy and public policy because it was enacted to address a specific evil in our history, that is the evil of slavery, segregation, the lingering effects of racism and discrimination, and especially the abridgement of the franchise to African Americans.  The Voting Rights Act began as a non-partisan measure, pushed by both Republicans and Democrats in Congress.

When South Carolina, first in nullification and first in secession, challenged the constitutionality of the Voting Rights Act, the Supreme Court upheld the law in 1966.  Chief Justice Earl Warren explained the new departure:  “Congress felt itself confronted by an insidious and pervasive evil.”  The Supreme Court dismissed the complaint, “Hopefully, millions of non-white Americans will now be able to participate for the first time on an equal basis in the government under which they live.”  The Court summarized the history of disfranchisement, including disfranchising constitutions, grandfather clauses, and white primaries, all accompanied by wholesale fraud and violence.  The Chief Justice noted the long history of racial discrimination in the voter registration process in South Carolina, directly quoting some of the more outrageous remarks of “Pitchfork” Ben Tillman. Tillman had declared, “The whites have absolute control of the government, and we intend at any hazard to retain it” and “the only thing we can do as patriots and as statesmen is to take from them [black voters] every ballot that we can.”

The new Act was precision-targeted at the worst-behaving states.  In those states, the chief dirty trick was the bad-faith use of the literacy test to reject African Americans no matter what the test result was –  just as intended.  For example, in 1940, one local registrar in South Carolina explained to a newspaper reporter, “If a coon wants to vote in the primary, we make him recite the Constitution backward, as well as forward, make him close his eyes and dot his t’s and cross his i’s.  We have to comply with the law, you see.”

The heart of the new law, therefore, stripped away from those states their right to use literacy tests at all.  The Act contained an objective formula to identify these states, which were called “covered states.”  Under the formula, the covered states turned out to be seven of the eleven states of the former Confederacy (as well as certain counties throughout the nation).  In other words, the Act accurately singled out states that were guilty of the most egregious voting discrimination.

The Voting Rights Act went into effect on August 6, 1965, and was effective from the start.  More than a million African Americans registered to vote in just two years.  Black registration doubled in Georgia and Louisiana, tripled in Alabama, and multiplied by almost ten times in Mississippi – from 28,000 to more than a quarter of a million.

White officials did not sit idly by; they shifted tactics.  Unable to keep African Americans from voting, they manipulated the rules and election machinery to maintain control and to keep African Americans from exercising influence or winning office.  In heavily black counties, offices were changed from elective to appointive. In Charleston County, South Carolina, for example, the school board of trustees changed from elected to appointed positions, but only in predominantly African American districts.  White school districts continued to elect their board members.  Majority black cities suddenly annexed white suburbs to keep white residents in the majority.  Gerrymandering was rampant.  A Mississippi legislator introduced one of these bills with the words, “This is needed to preserve our southern way of life.”  These methods went by the collective term “vote dilution,” i.e., making black votes worth less.

The Voting Rights Act, however, recognized that the tactics would change.  The “preclearance” remedy of the Voting Rights Act was Congress’s way of trying to anticipate future discriminatory tactics.  The covered jurisdictions had to get prior approval of changes in their voting procedure.  Over the next 45 years the pre-clearance remedy enabled African American voters to elect candidates of their choice and to be a real part of the political process in states where they had for so long been kept away from the ballot box.

In 2013 the Supreme Court took it back.  Shelby County v. Holder struck down the heart of the Voting Rights Act, ending the pre-clearance remedy.   That very day, Texas instituted a voter ID law that had previously been declared discriminatory.  Now we are back to old tricks like closing precincts in minority districts and tactics we have not yet even seen.  We have to ask if Georgia’s election debacle is part and parcel of the new plan to keep minorities from voting.