How Fannie Lou Hamer Created a Tool To Fight Voter Suppression Today

By Marc Elias

May 25, 2021

A geometric black-and-white collage featuring Fannie Lou Hammer and various scenes from civil rights protests

In 1964, civil rights leader Fannie Lou Hamer had a bold idea. A Black woman, she would run for Congress in the Democratic primary in Mississippi. Her opponent would be the pro-segregationist, white incumbent Jamie Whitten. At the time, Black citizens comprised 52.4% of the congressional district’s population, but less than 3% of its registered voters.

While she lost the primary 35,218 to 621, she set in motion one of the most consequential House election contests in history. And she may well have set the stage for the use of that process to fight voter suppression today.

After losing the primary, Hamer, along with Annie Devine and Victoria Gray, unsuccessfully sought to qualify for the November 1964 congressional ballot as third-party candidates under the banner of the Mississippi Freedom Democratic Party. Then, after the general election, Hammer, Devine, Gray and the Mississippi Freedom Democratic Party filed an election contest in the U.S. House challenging the seating of the Mississippi congressional delegation on the grounds that their elections were marred by voting discrimination and unconstitutional disenfranchisement of Black voters. 

The election contest was an evidentiary rout. Hamer and her team compiled 10,000 pages of witness testimony from more than 400 people. Depositions were taken in 30 Mississippi counties and hearings were held in 12 states. All of it told the story of disenfranchisement of Black voters in the 1964 elections by means of refusals to register Black voters, physical intimidation and other forms of overt, state-sponsored discrimination. The white congressmen claimed that they had no “personal knowledge” of voting discrimination taking place in Mississippi and complained bitterly of their lack of resources and inability to mount an evidentiary defense.

But what the congressmen lacked in evidence they more than made up for in the composition on the committee considering the challenge. After a 3-hour hearing — closed to the public, press and even other members of Congress — the House Administration Committee, which was dominated by southern Democrats, voted 20-5 to recommend that the House dismiss the contest. 

Among the reasons for dismissal was the fact that Hamer and the others could not show that they would have won the election even if Black citizens had been permitted to register and vote. But this issue had come up before — in the late 19th century. Between 1867 and 1901, the House decided more than 40 contests where violations of the 14th and 15th Amendments were found to be sufficient grounds for a contest to prevail, even without evidence that the election outcome would be different.

As the matter proceeded to the House floor for a vote in September 1965, some members — particularly those from the northeast — were under pressure to support the election contest. The images from Freedom Summer and the brutality of southern states towards Black citizens trying to register to vote were fresh in members’ minds. So too was the recently enacted Voting Rights Act (VRA).

It turns out that the passage of the VRA in August 1965 presented an opportunity for a “compromise” that would allow the Mississippi delegation to retain their seats. Opponents of the election contest made a two-part argument.  

First, they argued that the discriminatory conduct was only rendered illegal in 1965, nine months after the challenged elections. They noted that no court had struck down Mississippi’s voting laws as unconstitutional before the November 1964 election, even though Mississippi’s governor had accepted in 1965 that they did, in fact, violate the 15th Amendment. They further argued that the new VRA would have made illegal the tactics used in the 1964 elections to prevent Black voters from registering and voting. In other words, they argued that the new rules as of August 1965 should not be retroactively applied to 1964 elections and thus the contest should be dismissed.  

The second — and most critical — part of their argument was that, moving forward, violations of the VRA and 15th Amendment would be sufficient grounds to maintain and prevail in an election contest regardless of proof of the number of affected voters or the margin of the election.  

The majority thus sought to essentially block the challenge in 1964 by promising that from then on discriminatory voting laws and practices would be sufficient grounds to overturn an election in the House. 

As one member from New Jersey said while announcing his support to dismiss the contest: “The record of this debate…will constitute a clear precedent that the House of Representatives will no longer tolerate electoral practices in any State or district which violate the legal or constitutional rights of citizens to register, vote, or to become candidates for office.” The House will “use the power to unseat in the future, if there is corroborative evidence of the violation of the Voting Rights Act of 1965.” 

Ultimately the House voted in favor of permanently seating the Mississippi congressmen and against Fannie Lou Hamer and her effort by a vote of 228 to 143. The concession on future violations of the VRA and the Constitution worked.

That should not be an empty promise. 

As Republican legislatures enact new voter suppression laws, Congress should reaffirm the House’s promise in 1965 to refuse to seat, or to unseat, members who benefit from discriminatory voting laws.  It is beyond question that the House has the absolute right to adopt such a rule — since it alone is the “Judge of the Elections, Returns and Qualifications of its own Members.” So, the only barrier to this approach is the House itself and its reticence to invoke its constitutional power. 

If ever there was a need for it to do so, it is now.

Republicans in Arkansas, Florida, Georgia, Iowa and Montana should be on notice now that members’ elections are subject to House contest if either a court or the House determines that the member benefitted from discriminatory voting laws. And before they pass their own discriminatory laws, states like Texas, Ohio and New Hampshire should consider that the result could be the unseating of their Republican congressional delegations.

The right to vote is under attack. The House should be reminded of Fannie Lou Hamer’s courage in 1964. She may have lost that election contest, but she won a valuable tool for fighting voter suppression that is still relevant today.

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“Aligning Black Policy Priorities Into the Game of Electoral Politics” ::: S.C. Professor Emeritus, Willie Legette :: Sat., March 6, 2021 :: 10 pm ET

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“Aligning Black Policy Priorities Into the Game of Electoral Politics”

Professor Willie Legette

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The coalition Democrats brought together in 2020 was enough to beat Trump—but it’s insufficient for the long-term fights ahead. If 2020 was, as Biden put it, a fight “for the soul of the nation,” the next task for the progressives is even harder: build a multiracial working-class majority big enough to win a transformative agenda that lifts America out of 2020s roiling crises and truly transform people’s lives. That’s how progressives win for the next generation.

We talk with Professor Willie Legette, political analyst, as to how we might resolve the conflicts and problems of voting for who we “like”, votes that are often divorced from policies that address our political, economic, and community needs. Are we voting electoral race politics and needing class-basis policies? Just how does the “Black vote” calculate? Though we think of ourselves as on a winning team, are we winning? Is there credence to what we call “ the Black vote”? What does it mean? A whole new way of thinking is required. That and a “resistance campaign” against voter suppression.

With his co-author, Adolph Reed, Legette writes that “The disjunction between candidate choices and issue concerns reflects how people are accustomed to making their short-term electoral calculations and how they understand the issues that affect their lives. People take different criteria to candidate selection than to their estimations of the issues that most concern them. In part that is the result of decades of bipartisan neoliberal hegemony in which electoral politics has been drained of serious policy differences. For more than forty years neither Republicans nor Democrats have sought to address Americans’ decreasing standard of living and increasing economic insecurity. Both parties have subordinated voters’ concerns to the interests of Wall Street and corporations. Therefore, in states like South Carolina Democratic party politics is fundamentally transactional, where people are habituated to making electoral choices based on considerations like personal relationships or more local concerns that do not center so much on national policy issues. In effect politics—or at least electoral politics—has been redefined as not the appropriate domain for trying to pursue policies that address people’s actual material concerns like health care, education, jobs, and wages, or housing.

Legette asserts that a narrow view of politics was on display regarding the “black vote” in particular in the runup to the 2016 South Carolina primary when Congressmen James Clyburn (D-SC), John Lewis (D-GA), and Cedric Richmond (D-LA) denounced calls for free public higher education as “irresponsible” because “there are no free lunches.” When Clyburn endorsed Biden in 2020, he took a swipe at Medicare for All, another issue with strong black American support, indicating that the choice this year is Biden vs. Medicare for All. (It may be worth noting that Clyburn, between 2008 and 2018, took more than $1 million from the pharmaceutical industry.)”

“. . . is not the election of a president but the transformation of the country into a place that is more egalitarian, just, and humane, a society where poverty is not possible and where real freedom is enjoyed by all… The kind of popular pressure we need to advance some of the best of Sanders’s platform—free higher education, postal banking, public works, a single-payer health care system, stronger financial regulation, and so on—cannot be built in an election cycle.” – Cedric Johnson, Jacobin magazine,” Fear and Pandering in the Palmetto State”

Johnson problematizes that “black politics” as a framework for understanding either black Americans’ electoral behavior or their class and political interests. He points out that “voting for a presidential candidate… is only a proxy for political interests, which are again multifaceted and shifting.” Black politics, in fact, is a historically specific phenomenon, as Johnson argues elsewhere. It is a label attached to the racialized black interest-group politics that consolidated after the great victories of the 1960s. It is thoroughly a class politics that rests on a premise—and one asserted with increasing intensity as class differences among black Americans become clearer in political debate—that all black Americans converge around a racial agenda defined arbitrarily by political elites and others in the stratum of freelance Racial Voices. We talk with Professor Legette about these assertions and more. As well, I continue to ask where is the Black political infrastructure to move us either in or out of the game?

ABOUT Professor Legette

Willie Legette is Professor Emeritus of Political Science, South Carolina State University; Lead Organizer, Medicare for All-South Carolina; Labor Party candidate for SC Senate;

Common Dreams contributor; journalist and activist.






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Report: More than 1600 Polling Places Have Closed Since the Supreme Court Gutted the Voting Rights Act – Mother Jones

The consequences of the Shelby County decision were immediate: States that had previously fallen under the jurisdiction of the VRA immediately passed tough voter restriction laws and restructured election systems. But a new report released today by the civil rights coalition The Leadership Conference on Civil and Human Rights adds another dimension to the picture of how this 2013 ruling has undermined voter access by analyzing the number of polling place that have been closed since the ruling. According to the report, entitled “Democracy Diverted: Polling Place Closures and the Right to Vote,” 1,688 polling places are now shuttered in those areas. The report, which is a follow-up to a 2016 analysis, looked at 757 counties and found that 298 of them, or 39 percent, reduced their number of polling places between 2012 and 2018.

“Next to the ballot itself, the most identifiable element of our democracy’s voting process is the polling place. It should—and it must—be accessible to all,” the report states. “When it is not, the barriers to participation can be high. Moving or closing a polling place— particularly without notice or input from communities—disrupts our democracy.”

Source: Report: More than 1600 Polling Places Have Closed Since the Supreme Court Gutted the Voting Rights Act – Mother Jones

Millions of Black Voters Are Being Purged From Voter Rolls, Often Illegally: Report

Millions of Black Voters Are Being Purged From Voter Rolls, Often Illegally: Report

Residents cast their votes at a polling place on November 4, 2014, near Ferguson, Mo.       Photo: Scott Olson (Getty Images)

As the end of Barack Obama’s presidency grew closer, election officials began preparing for the next election. Instead of strengthening the security of voting machines and making voting more accessible to citizens, states did the exact opposite. But they didn’t just make it harder to vote. For hundreds of thousands of registered, eligible voters across the nation, they made it impossible.

Voter Purges (pdf), a new report by the Brennan Center, highlights the systematic purging of voters from rolls by state and local officials around the country. These are not random, isolated cases. It is a methodical effort that disproportionately affects minority voters. Even worse, no one seems to care.

In 1993, Congress passed the National Voter Registration Act (NVRA) which was an attempt to make registering to vote easier by offering driver license applicants the opportunity to register to vote. The law also prevented states from purging voters unless they met certain requirements.

But the Brennan report highlights how states have skirted the law and purged voters without punishment. And after the Supreme Court dismantled the requirements for voter pre-clearance with the Shelby v. Holder rulingstates with histories of voter discrimination no longer required federal pre-clearance before purging rolls.

Between 2014 and 2016, 16 million registered voters were removed from state rolls, 33 percent more than were moved between 2006 and 2008. For the election of 2012 and 2016, the Brennan Center estimates that two million fewer voters would have been purged if those states had to apply by the provisions of the Voting Rights Act.

Some of the egregious highlights of the report include:

  • In June 2016, the Arkansas secretary of state gave a list of 7,700 names to county clerks to be removed from the rolls because of supposed felony convictions. That list included people who had never been convicted of a felony and formerly convicted persons whose voting rights had been restored.
  • In 2013, Virginia deleted 39,000 names from its voting roster. In some counties, the mistakes on the list were as high as 17 percent.
  • A federal court halted a purge after Hurricane Katrina after justices found that one-third of the purged names came from a majority black parish in of New Orleans.
  • After the Shelby v. Holder decision, Texas purged 363,000 more voters than it did the election cycle before the case. Georgia purged 1.5 million more voters.
  • Alabama, Indiana and Maine have illegally instituted the widely ridiculed Crosscheck system (on which Charles D. Ellison previously reported on for The Root) that purges voters without federally-mandated notification.
  • In 1986, one Louisiana official remarked that a voter purge effort “could really keep the black vote down considerably.”
  • Instead of checking out inequities, Jeff Sessions’ Department of Justice has been urging states to do more purging.

Almost every type of voter purge disproportionately affects black voters and voters of color. Some states purge rolls based solely on names but non-whites are more likely to have the same names. According to the U.S. Census Bureau, 16.3 percent of Hispanic people and 13 percent of black people have one of the 10 most common surnames, compared to 4.5 percent of white people.

Black and Hispanic voters are more likely to move, often in the same jurisdiction, but voter purges based on address eliminate them from voting. Officials also use “voter caging” which intentionally sends mail to verify addresses in a format that cannot be forwarded, leading to the disenfranchisement of hundreds of thousands of eligible voters.

African Americans are also more likely to have felony convictions, and elderly and minority voters are more likely to be incapacitated, all reasons for which someone can be purged from a voter roll.

Almost every study ever done on this issue shows that in-person voter fraud is almost nonexistent. Instead, these purges are intentional efforts to restrict voting rights.

Some of the easily-implementable recommendations to rectify this travesty include:

  1. Public notifications of impending voter purges.
  2. Making purge lists available to the public, including at polling places.
  3. Accepting provisional ballots from purged voters.
  4. Universal voter registration forms and rules.
  5. Stop using failure to vote as a reason to purge voters.

All of these policies seem like they would be universally-accepted fixes for a flaw in our democracy.

But then again, not having a Russian agent for a President seems like a smart thing too. How’s that working out?


Michael Harriot

World-renowned wypipologist. Getter and doer of “it.” Never reneged, never will. Last real negus alive.    Posts

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Bruce A. DixonBruce Dixon is the GA State Chairman of the Green Party, Co-Founder and Managing Editor of The Black Agenda Report and journalist. Bruce was a rank and      file member of the Illinois Chapter of the BPP in 1969 and 1970. He has long been considered a voice of wisdom an encouragement in the Black left, progressive left movement in this country since the 1960s.  Tonight we talk with him about the State and Future of Black America.




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Voter Repression Is a Serious Problem: It Is Time for a New Freedom Summer | Portside

Voter Repression Is a Serious Problem: It Is Time for a New Freedom Summer

Republicans have created immense obstacles to registration – reduced the number of days for early voting, eliminated same-day registration – all with the clear and unadulterated aim of sinking, if not eliminating the Democratic electorate. What is striking is that, not very far behind their bogus arguments regarding alleged voter fraud, Republicans are close to admitting, or will outright admit, that their aim is to get potential Democratic voters to remain home.
Bill Fletcher
June 5, 2016

I found myself reading about the impact of voter suppression, i.e., the efforts to inhibit voter registration and voter participation that have been orchestrated by Republican-dominated state legislatures since 2009.  Voter suppression actually has a long and ignominious history in the USA, but the 1965 Voting Rights Act cramped such efforts.  The US Supreme Court’s neutering of the Voting Rights Act, Shelby County v Holder , opened up myriad possibilities for Republican shenanigans in the electoral arena.  Republicans have created immense obstacles to registration –  reduced the number of days for early voting,  eliminated same-day registration – all with the clear and unadulterated aim of sinking, if not eliminating the Democratic electorate.  What is striking is that, not very far behind their bogus arguments regarding alleged voter fraud, Republicans are close to admitting, or will outright admit, that their aim is to get potential Democratic voters to remain home.

    Voter registration, instead of being encouraged and made more accessible, has become exceedingly difficult.  In the Commonwealth of Virginia, for instance, registration forms have to be submitted within a certain number of days after they have been filled out, otherwise those who have conducted the registrations are penalized.  Registration forms can only be submitted to the clerk in the county of residence of the registrant rather than being submitted elsewhere and channeled appropriately.  And, in this age of identity theft, registrants are required to provide their full social security number.  In each state where voter suppression efforts are underway there are similar stories.

    Contemporary voter suppression parallels the practices carried out when Reconstruction was overthrown in 1877 and the ‘counterrevolution of property,’ to use W.E.B. Dubois’s term, succeeded.  In many states, possession of property was established as an eligibility requirement to cast a ballot. This counterrevolution resulted in the disenfranchisement of African American voters and, with them, many poor whites.  This was precisely the objective of “property” when faced with a populist rising against the gross inequalities of the Gilded Era and the post-Reconstruction period.

    Today’s voter suppression gained traction in the aftermath of the election of Barack Obama as President.  For the right-wing it was an “OMG” moment that they sought to undermine by any means necessary.  As we are now aware, Senator Mitch McConnell united the Republicans around a strategy of obstruction in Congress, aiming to derail any Obama initiative.  In the field, however, the objective was deeper and more demonic.  The aim was to shrink the electorate.  Some Republican ideologues went so far as to argue that the electorate should be reduced and that there were certain people who should not be able to vote because of ignorance or poverty.  But the mass of Republican legislators crafted a strategy that based itself on the argument that there was voter fraud that had to be blocked through new and challenging initiatives in voter registration and voting.  The arguments were as absurd as they were racist.  There was no evidence of anything approaching significant voter fraud, yet the Republicans played upon racist myths and fears among many whites to create an atmosphere where such measures were taken seriously.

    There have been repeated and significant efforts to block voter suppression efforts.  Litigation has been the main tactic and, in some cases, there have been victories.  But with every victory, the pox still spreads as the Republicans prove, once again, to be relentless in their pursuit of total power in the electoral arena.  The question that progressives face is one of what to do?


    Progressives and leftists have often not taken matters of voter registration particularly seriously, at least in the post-1965 Voting Rights Act era.  Voter registration and voting rights more generally were relegated to the liberals and non-partisan do-gooders.  While there were leftists, such as Richard Cloward and Frances Fox Piven, who saw the importance of voting rights and registration, they tended to be more the exception than the rule.  Added to this problem, the Democratic Party establishment regularly downplayed voter registration, ignoring the importance of expanding the electorate.  Only in certain campaigns, e.g., during the Black-led electoral upsurge of the 1980s and the Obama campaign in 2008, was voter registration recognized to be of strategic importance in shifting the balance of forces.

    In election years 2010, 2012 and 2014 various organizations, including but not limited to labor unions, mobilized against selective voter suppression efforts, particularly those conducted on Election Day.  Yet the waves of assaults by the Republicans have not ceased and, with the crippling of the Voting Rights Act, the blood lust of the Republicans has become enhanced.  For these reasons, the approach of progressives towards voter suppression needs to be reconsidered.

    The battle for voting rights in the 20th century was not one mainly handled in the courts; it was handled in the ‘court’ of public opinion, specifically the streets.  The dramatization of such efforts in the commercial media whether in the film Selma or in the recent HBO film All the Way reminds us of how repressive election laws once were in many parts of the USA (including but not limited to the South and the Southwest).  It was the work of activists, most especially those associated with the Southern Christian Leadership Conference and the Student Non-violent Coordinating Committee (SNCC) that made a tremendous difference.  Their work included the development of Citizenship Schools (done in conjunction with the Highlander Folk School), registration efforts and outright protests.  This was exceedingly dangerous work making the courage of the activists that much more exceptional.

    After 1965, there was an assumption in much of the liberal and progressive world that the Voting Rights Act was largely untouchable and that this would be a fortification to restrain the advances of the barbarians of the political Right.  Unfortunately, the barbarians circumvented the fortifications and are now in an all-out assault on democratic rights.  A reliance on court action will be insufficient.

    Which brings us to an approach in the 2016 election year.  Perhaps what is needed is a “Freedom Summer + Fall,” i.e., a major, multi-pronged mobilization that openly challenges voter suppression.  Such an effort would necessitate large numbers of volunteers and the collaboration of organizations.  Yet it is eminently do-able.  Consider:

  1. This effort would need to run from this very moment through Election Day (actually though the certification of the elections).

  2. Voter suppression statutes would need to become the subject of litigation on a very broad scale.  The undemocratic nature of them would need to be demonstrated and court action would be one particular platform.

  3. Voter registration efforts would need to be enhanced with shuttles to get communities to registration sites.  Student volunteers would need to be enlisted as part of a massive registration initiative.

  4. Where local officials obstruct or block registration, there would need to be protests.  Such protests might take the form of well-publicized sit-ins, or they might be massive stand-ins.

  5. Coordinated days of actions would be needed in states raising the issue of voter suppression, particularly documenting the lack of evidence to justify any such efforts.

  6. Absentee voting would need to be encouraged.  This is very important particularly in those states where early voting has been eliminated or cut altogether.

  7. There would need to be a focus on obtaining appropriate documentation.  This might be among the most difficult challenges since there are many people who do not have birth certificates; lost their birth certificates; or for whatever reason are lacking the requisite information.  Create media events that highlight the plight of those who do not have and are unable to obtain the appropriate documentation.

  8. In states that permit gun identification in order register to vote, organized efforts would be needed to secure such identification.

  9. Weekly demonstrations at the Republican National Committee would need to be mounted to raise awareness of this assault on democracy.

  10. Pressure would need to be brought on governors to issue executive orders restoring voting rights to the formerly incarcerated in those states that permanently eliminate them, e.g., the April 2016 executive order by Virginia Governor McAuliffe.

A tremendous danger facing us is that of passively accepting the results of voter suppression efforts.  Longer-term the counterattack on voter suppression will need to be at the level of state legislators.  Progressive candidacies will need to run on the platform of overturning such efforts.  Yet this will only happen when there is the sense of a mass movement.  To the extent to which voter suppression is treated more like a nuisance that is addressed exclusively by litigation, we will lose the battle for democracy and the forces of authoritarianism will have their day in the sun.

Bill Fletcher, Jr. is a talk show host, writer and activist.  He is the author of ‘They’re Bankrupting Us!’ And Twenty Other Myths about Unions. Follow him

Source: Voter Repression Is a Serious Problem: It Is Time for a New Freedom Summer | Portside

Witness From the Bridge l OH State Senator Nina Turner


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Ruby Sales, SNCC and Civil Rights Movement Veteran, Freedom Warrior, Director, Spirit House Project

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What Happens If The Voting Rights Act Loses In The Supreme Court

What Happens If The Voting Rights Act Loses In The Supreme Court

By Ian Millhiser

Feb 26, 2013

We do not have to guess what the states currently subject to a key provision of the Voting Rights Act will do if the Supreme Court grants their wish to have that provision declared unconstitutional — top Republicans in those states have already told us. In a brief filed last August, Republican attorneys general from six of the states covered, at least in part, by Section 5 of the Voting Right Act complained that this landmark legislation is all that stands between them and implementing a common method of disenfranchising minority voters. Two of those states, South Carolina and Texas, admit that the Voting Rights Act stopped them from implementing a voter suppression law their governors already signed.

Of course, the voter suppression law at issue here are so-called “voter ID” provisions that require voters to present photo ID at the polls. Their supporters clam publicly that these laws are needed to prevent voter fraud at the polls, but this claim is absurd. Voters are more likely to be struck by lightning than to commit in-person voter fraud. A study of Wisconsin voters found that just 0.00023 percent of votes are the product of such fraud.

What these laws do accomplish is disenfranchisement; even conservative estimates suggest that they prevent 2 to 3 percent of registered voters from casting a ballot. This voter disenfranchisement is particularly pronounced among low-income voters, students and — a fact that is particularly salient for any discussion of the Voting Rights Act — racial minorities.

The Voting Rights Act, of course, protects against laws that expose minority voters to greater burdens than other voters. Section 5, the provision that the Supreme Court will consider tomorrow, requires parts of the country that have historically engaged in voter suppression to “pre-clear” any new voting laws with the Justice Department or a federal court in DC to make sure they do not impose racial burdens. Thus, voter suppression laws such as voter ID can be blocked before an election is held, preventing officials from being elected to office by an electorate that has been unlawfully culled of minority voters.

Lest there be any doubt, voter ID laws are just one of many tactics Republican lawmakers have turned to in order to reshape the electorate into something more likely to elect their favored candidates. Cuts to early voting days did not simply lead to long lines in states like Florida, they were also a direct attack on minority voters. As one Republican consultant admitted after last November’s election, “I know that the cutting out of the Sunday before Election Day was one of [the Florida GOP’s] targets only because that’s a big day when the black churches organize themselves.” Voter purges targeted Latino voters. Republican laws restricting voter registration also cut into the minority vote, as “Hispanic and African-American voters are approximatelytwice as likely to register to vote through a voter registration drive as white voters.”

As President Lyndon Johnson warned when he originally proposed the Voting Rights Act to Congress, vote suppressors will bring “every device of which human ingenuity is capable” to deny the right to vote. This is why it is so important that Section 5 exist. Advocates of disenfranchisement are smart, nimble and capable of subtlety. The law must have a mechanism to block their efforts from taking effect before an election is held using illegal, vote suppressing procedures.

Indeed, it is deeply distressing that the Supreme Court would consider weakening the Voting Rights Act at the exact moment that Republican lawmakers are engaged in what President Bill Clinton called the most “determined effort to limit the franchise” since Jim Crow. What America needs today is not weaker voting rights. At the very least, we need to keep the protections we already have and expand Section 5′s coverage to include many Republican-controlled states that are not currently subject to its rule — an expansion the Voting Rights Act explicitly contemplates under what is known as the “bail-in” provision of the law. The lawmakers who reauthorized the Voting Rights Act in 2006 could not have anticipated that Republican lawmakers in many states would begin a voter suppression campaign a few years later, but the drafters of the act were wise to include a provision that enables it to adapt to these circumstances.

Above all, it is hard not to escape the fact that, at the exact same time that the Republican Party is leading the charge to enact state-level voter suppression laws, the five justices most likely to strike down much of America’s most important voting rights law are the Court’s only Republicans. It will be difficult for the Roberts Court to maintain the perception that it places politics before the law if hands such a gift to Republican lawmakers bent on disenfranchisement.



On Voter Suppression: Supreme Court rejects 30 year GOP effort at Voter Intimidation

On Voter Suppression: Supreme Court rejects 30 year GOP effort at Voter Intimidation

January 14, 2013


The Republican effort to end a 30 year old court order which attempts to prevent intimidation of minority voters  was unsuccessful. The Supreme Court has rejected their appeal without comment from the Justices.

Image: Think Progress

Image: Think Progress


The AP reports, “The order stems from a lawsuit filed by Democrats in New Jersey in 1981 that objected to a “ballot security” program the RNC ran in minority neighborhoods. Republicans said the order hampers efforts to combat voter fraud, but U.S. District Judge Dickinson Debevoise said voter intimidation remains a threat and preventing it outweighs the potential danger of fraud. The court action is unrelated to legal challenges to Republican-inspired voter identification laws in the 2012 campaign.”

This is a big win against voter suppression. The ballot security program posted armed officers in the task force, from the ranks of off-duty county deputy sheriffs and local police, placing them at the polls with foreboding signs, who prominently displayed revolvers, two-way radios, and BSTF armbands. BSTF patrols challenged and questioned voters at the polls.

This sounds similar to True the Vote, sans the armbands. With partisan efforts to secure the polls and question mostly minority voters while claiming it’s only an effort to combat voter fraud, seems disingenuous — especially when True the Vote is a Tea Party concept which only identifies Democrats in voter fraud.

In short: GOP, you’re not the police of me!

Thanks to Barbara Arnwine, National Director, The Lawyers’ Committee for Civil Rights Under Law for passing this piece over to us.  Barbara is an OUR COMMON GROUND Voice, along with other members of the LCCRUL staff.



Votes Behind Bars l The Boston Review


Votes Behind Bars

Pamela S. Karlan

123RF Stock Photo

Nearly half a century ago, Isaiah Berlin delivered an extraordinarily influential lecture called “Two Concepts of Liberty.” The negative concept consists in freedomfrom—“warding off interference” from external forces. By contrast, the positive concept consists in freedom to—to be “a doer—deciding, not being decided for.” Democracy requires both forms, but current constitutional doctrine adopts an unduly negative approach.

This is especially the case when it comes to political voice. The Supreme Court has resisted attempts to constrain the political impact of money, most notoriously inCitizens United v. Federal Election Commission (2010). But just as telling is Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011), where the Court hobbled the states’ ability to construct public financing systems. Adjusting the funds available to candidates who accept public financing somehow burdens privately financed candidates’ freedom, according to the justices.

The Court’s rationale in campaign finance cases calls on protection of free speech, which invokes a negative concept of liberty because the freedom of speech guaranteed by the First Amendment is largely exercised without government assistance. Political speech, the Court points out, is “an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” True enough.

Yet voting is surely an equally essential mechanism of democracy, and arguably a more direct means for holding officials accountable, but the Court has upheld laws that burden casting a ballot, a positive liberty. In Crawford v. Marion County Election Board (2008), the Court rejected a challenge to an Indiana law requiring already-registered voters to present government-issued photo identification at the polls. (Disclosure: I helped to represent the plaintiffs in the case.) The justices did not agree on every element of the case, but they accepted Indiana’s argument that ID prevents fraud (after recognizing that Indiana could not point to a single example, ever, of impersonation that an ID requirement would have stopped) and enhances “public confidence” in the election process, a rationale the Court has essentially rejected in the political-spending context.

The Court’s strikingly different treatment of burdens on political spending and on voting reflects this positive/negative divide. Effective exercise of the right to vote depends on affirmative government support. A citizen who is handed an official ballot written in a language she does not understand may effectively be denied the right to vote. If the government uses unreliable voting machines or staffs polling places with badly trained workers, citizens may effectively be prevented from voting by the press of other responsibilities that preclude waiting in line for hours. Voter ID laws disenfranchise individuals who find it difficult or impossible to obtain government-issued documents.

A superficial reading of the Constitution might support the Court’s opinions. Although the Constitution is filled with provisions mentioning the “right to vote,” the most explicit protections are phrased almost entirely in negative terms: they prohibit particular forms of disenfranchisement. The Fifteenth and Nineteenth Amendments, for example, forbid denial of the right to vote “on account of race” or “sex”; the Twenty-Fourth, “by reason of failure to pay any poll tax.”

In light of this language, in 1875 the Supreme Court declared itself “unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one.” To be sure, the equal protection clause provides one important qualification: the government cannot arbitrarily treat voters unequally. This fall a federal court of appeals relied on the clause to hold that if Ohio permitted military voters to cast early ballots the weekend before the November election, it had to make early voting available to other voters on the same terms. But the court was careful to acknowledge that Ohio had not been constitutionally required to offer early voting at all.

As of 2010, more than 5.85 million American citizens were disenfranchised because of criminal convictions.

The consequences of adopting an essentially negative approach to political voice extend beyond enhanced protection for the political deployment of concentrated wealth and beyond new rules, such as voter ID requirements, that block full participation. The negative approach underwrites a practice that continues to set the United States apart among advanced democracies: disenfranchising millions of citizens due to criminal convictions. Even incarcerated prisoners vote in countries as otherwise diverse as the Czech Republic, Denmark, France, Israel, Japan, Kenya, the Netherlands, and Zimbabwe. In the last dozen years, the highest courts of Canada and South Africa and the European Court of Human Rights have each issued opinions recognizing the voting rights of incarcerated citizens.

As of 2010 more than 5.85 million American citizens were disenfranchised as a result of criminal convictions. Only a quarter of those individuals were then incarcerated. Roughly 30 percent were on probation or parole. The remaining 45 percent were ex-offenders, many disenfranchised for life as a result of felony convictions involving small amounts of drugs or nonviolent crimes that never resulted in prison sentences.

Such extensive disenfranchisement would be distressing in any event, but it becomes even more troubling in light of the dramatic effect that offender disenfranchisement has on the black community. More than 2 million African Americans currently are stripped of their right to vote. That’s more than the number of African Americans who gained the franchise in 1870 thanks to the Fifteenth Amendment. Precedent permits offender disenfranchisement unless challengers can show that states adopted or have maintained their practice for purposefully discriminatory reasons, a nearly insurmountable hurdle. In 2005, for example, the Supreme Court refused to review Florida’s lifetime offender disenfranchisement provision even though the ban had been adopted in 1868 precisely for the purpose of disenfranchising newly freed slaves. Lower federal courts acknowledged this unconstitutional motivation but held that the taint somehow had dissipated by 1968, when Florida renewed the ban without giving any reasons for doing so.

Offender disenfranchisement statutes impair the voting rights of people beyond the offenders themselves. Flawed records and negligent purges result in thousands of eligible voters being excluded. More than 2,400 black voters in Florida were erroneously purged before the 2000 election, dwarfing George W. Bush’s 537-vote margin of victory. And punitive offender disenfranchisement statutes deprive the black community as a whole of political power, which in turn skews election results to the right and creates legislative bodies hostile to civil rights and economic justice for the franchised and disenfranchised alike.

Faced with these problems, some activists and scholars suggest the need for a new constitutional amendment recognizing the affirmative right to vote. I think a better approach lies in reviving the late legal scholar Charles Black’s approach to constitutional reasoning. Black argued that the overall structure of the Constitution presupposes free and fair elections in which all qualified citizens can participate. Individual amendments expanding the electorate reflect this general principle. Abolishing poll taxes, for instance, stands for a fundamental commitment to eliminating barriers to registration and to ensuring that wealth is not the means of accessing politics.

And the Court should apply to offender disenfranchisement statutes a principle it has already recognized elsewhere: whether a punishment violates the Eighth Amendment’s bar on cruel and unusual punishment “is judged not by the standards that prevailed in 1685 . . . or when the Bill of Rights was adopted,” but instead by “the evolving standards of decency that mark the progress of a maturing society.”

Today, continuing to disenfranchise millions of our fellow citizens cannot survive that test.

Pamela S. Karlan is Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford Law School.


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