Voter Rights

The Voting Rights Act of 1965, signed into law by President Lyndon B. Johnson, aimed to overcome legal barriers at the state and local levels that prevented African Americans from exercising their right to vote as guaranteed under the 15th Amendment to the U.S. Constitution. The Voting Rights Act is considered one of the most far-reaching pieces of civil rights legislation in U.S. history.

Selma to Montgomery March

Lyndon B. Johnson assumed the presidency in November 1963 upon the assassination of President John F. Kennedy. In the presidential race of 1964, Johnson was officially elected in a landslide victory and used this mandate to push for legislation he believed would improve the American way of life, such as stronger voting-rights laws.

After the Civil War, the 15th Amendment, ratified in 1870, prohibited states from denying a male citizen the right to vote based on “race, color or previous condition of servitude.” Nevertheless, in the ensuing decades, various discriminatory practices were used to prevent African Americans, particularly those in the South, from exercising their right to vote.

During the civil rights movement of the 1950s and 1960s, voting rights activists in the South were subjected to various forms of mistreatment and violence. One event that outraged many Americans occurred on March 7, 1965, when peaceful participants in a Selma to Montgomery march for voting rights were met by Alabama state troopers who attacked them with nightsticks, tear gas and whips after they refused to turn back.

Some protesters were severely beaten and bloodied, and others ran for their lives. The incident was captured on national television.

In the wake of the shocking incident, Johnson called for comprehensive voting rights legislation. In a speech to a joint session of Congress on March 15, 1965, the president outlined the devious ways in which election officials denied African-American citizens the vote.

Literacy Tests

Blacks attempting to vote often were told by election officials that they had gotten the date, time or polling place wrong, that they possessed insufficient literacy skills or that they had filled out an application incorrectly. Blacks, whose population suffered a high rate of illiteracy due to centuries of oppression and poverty, often would be forced to take literacy tests, which they sometimes failed.

Johnson also told Congress that voting officials, primarily in Southern states, had been known to force black voters to “recite the entire Constitution or explain the most complex provisions of state laws,” a task most white voters would have been hard-pressed to accomplish. In some cases, even blacks with college degrees were turned away from the polls.

Voting Rights Act Signed into Law

The voting rights bill was passed in the U.S. Senate by a 77-19 vote on May 26, 1965. After debating the bill for more than a month, the U.S. House of Representatives passed the bill by a vote of 333-85 on July 9.

Johnson signed the Voting Rights Act into law on August 6, 1965, with Martin Luther King Jr. and other civil rights leaders present at the ceremony.

The act banned the use of literacy tests, provided for federal oversight of voter registration in areas where less than 50 percent of the non-white population had not registered to vote, and authorized the U.S. attorney general to investigate the use of poll taxes in state and local elections.

In 1964, the 24th Amendment made poll taxes illegal in federal elections; poll taxes in state elections were banned in 1966 by the U.S. Supreme Court.

Did you know? In 1965, at the time of the passage of the Voting Rights Act, there were six African-American members of the U.S. House of Representatives and no blacks in the U.S. Senate. By 1971, there were 13 members of the House and one black member of the Senate.

Voter Turnout Rises in the South

Although the Voting Rights Act passed, state and local enforcement of the law was weak, and it often was ignored outright, mainly in the South and in areas where the proportion of blacks in the population was high and their vote threatened the political status quo.

Still, the Voting Rights Act gave African-American voters the legal means to challenge voting restrictions and vastly improved voter turnout. In Mississippialone, voter turnout among blacks increased from 6 percent in 1964 to 59 percent in 1969.

Since its passage, the Voting Rights Act has been amended to include such features as the protection of voting rights for non-English speaking American citizens.

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Citation Information

Article Title

Voting Rights Act of 1965

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Statement of Stacey Y. Abrams Founder & Chair, Fair Fight Action On Continuing Challenges to the Voting Rights Act Since Shelby County v. Holder Before the House Judiciary’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties June 25, 2019

Chairman Cohen, Ranking Member Johnson, Committee Members, thank you for allowing me to address this important hearing today, marking six years since the U.S. Supreme Court issued its decision in Shelby County v. Holder, a decision that has dramatically undermined access to full participation in our democracy by effectively negating the core mechanism for preventing voter suppression as enshrined in the 1965 Voting Rights Act. In so doing, the Shelby decision created a new channel for the troubling practice of voter suppression, during a time of dramatic demographic change, and thus has permitted the proliferation of laws and practices that seek to stymie a fundamental exercise of citizenship. However, no assault on democracy will ever be limited to its targets. As the franchise is weakened, all citizens feel the effects and even the perpetrators eventually face the consequences of collateral damage—an erosion of our democracy writ large. I come today because I was raised in Mississippi, where my parents joined the civil rights movement as teenagers and where, in the wake of the Voting Rights Act, they cherished their right to vote and instilled in their six children a deep reverence for the franchise. I came of age in Georgia, where I registered voters in college, served as House Democratic Leader and founder of a voting rights organization, and where I stood for office as the Democratic nominee for Governor in 2018, an election plagued by voter suppression tactics all too common in a post-Shelby world. Jurisdictions formerly covered under Section 5 have raced to reinstate or create new hurdles to voter registration, access to the ballot box, and ballot counting. New states facing changes to their voter composition have likewise taken up this opposition to full citizen participation by implementing rules that, while facially neutral, result in a disturbingly predictable effect on voter access among minority citizens. Among the states, however, Georgia has been one of the most aggressive in leveraging the lack of federal oversight to use both law and policy to actualize voter suppression efforts that target voters of color. I. VOTER REGISTRATION IMPEDIMENTS As founder of the New Georgia Project, one of the state’s largest voter registration organizations, I learned first-hand how insidious Georgia’s post-Shelby obstacles to voter registration have become. Our organization conducted voter registration across 159 counties, well aware that for low-propensity voters, this type of in-person registration is most effective. Third-party voter registration is a critical path to engaging citizens of colors in the democratic process, and minorities are twice as likely to register through a voter registration drive than are whites. In its report, State Restrictions on Voter Registration Drives, which focuses on the challenges posed across the country, the Brennan Center highlights research about the importance of third-party voter Abrams,

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registration for racial and ethnic minorities—namely nearly double the likelihood of registration from these efforts.1 Specifically, “[i]n 2004, while 7.4% of non-Hispanic whites registered with private voter registration drives, 12.7% of Blacks and 12.9% of Hispanics did the same. In 2008, African Americans and Hispanics nationally remained almost twice as likely to register through a voter registration drive as whites. While 5% of non-Hispanic whites registered at private voter registration drives, 11.1% of AfricanAmericans and 9.6% of Hispanics did the same. [In] the 2010 election, 4.4% of non-Hispanic whites registered at private drives, as compared to 7.2% of African-Americans and 8.9% of Hispanics.” These registration efforts not only create new registrants but also serve to create new and active voters. Research completed by Dr. David Nickerson2 at the University of Notre Dame sought to understand the impact of drives on voting. To this end, the researchers conducted experiments run in Detroit and Kalamazoo, Michigan and Tampa, Florida, the results of which demonstrate that 20% of low-income citizens who register in a door-to-door drive actually go out and vote. Their findings control for type of election year (municipal, Presidential, midterm) as well as turnout activities, and serve as a baseline to understand what we can expect from a voter registration drive focusing on under-represented groups. There is no doubt a direct correlation between the effectiveness of such efforts, and the Post-Shelby legislation and efforts in states like Georgia, Tennessee, North Carolina, Texas and Florida to impede these activities. a. Lack of Transparency—Blackout Periods and Exact Match Through our project and in cooperation with other organizations that work to increase registration among communities of color, we tracked the processing of forms, and we proactively attempted to collaborate with the office of the Secretary of State. In response to our efforts, which submitted thousands of verified forms, then-Georgia Secretary of State Brian Kemp, and those he oversaw as the state’s election superintendent, refused to process registration forms in a timely manner. As a result, we uncovered unpublished internal rules such as the 90-day blackout period during which no voter registration forms were processed and which resulted in untimely delays. Only due to a federal lawsuit in 2017 during a special Congressional election were citizens able to effectively challenge and eliminate this secret policy. Under a fully functional Voting Rights Act, no such period would be permitted without preclearance and transparency. Due to the unprecedented number of applications submitted from primarily voters of color, we also uncovered the racially discriminatory effect of the “exact match process” that disproportionately captures voters of color. Exact match requires perfect data entry by state employees to secure a proper registration in Georgia. In 2009, under preclearance requirements, the Justice Department summarily rejected exact match as presenting “real,” “substantial,” and “retrogressive” burdens on voters of color.3 1http://www.brennancenter.org/sites/default/files/legacy/publications/State%20Restrictions%20on%20Voter%20Registration%20Driv es.pdf 2 https://www3.nd.edu/~dnickers/files/papers/Nickerson_Registration_temp.pdf 3 https://www.justice.gov/crt/voting-determination-letter-58 Abrams,

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Post-Shelby, the policy took effect and led to more than 34,000 applications being suspended under the system, including thousands submitted in 2014. Once the use of exact match was uncovered, in 2016, a group of organizations filed suit in federal court. Mr. Kemp agreed to a settlement and processing of those delayed applications. However, in the following state legislative session, another iteration of exact match passed through the Georgia legislature despite his 2016 federal court settlement. This use of exact match led to 53,000 voter registrations being held hostage in 2018, 80 percent of whom were people of color and 70 percent of whom were black voters, who comprise roughly 30 percent of Georgia’s eligible voters. In 2018, Georgia officials lost another lawsuit pertaining to exact match. In the period between 2015-2018, federal courts admonished both blackout periods and multiple iterations of the exact match process; however, absent a robust preclearance process, these remedies came too late for participants in the 2014, 2016 and 2018 state and federal elections, as well as other elections where voters had no notice of these processes. b. Excessive Voter Purges The right to vote begins with being able to get on the rolls, but remaining on the voter rolls has also been implicated by the gutting of the Voting Rights Act. Post-Shelby, the former Secretary of State misappropriated practical devices approved to maintain accurate voter files and instead undermined lawful access to the franchise. Under his regime and without the oversight of the Justice Department, facially neutral rules for removing voters who have died or left the state, as demonstrated by tracking voter behavior, have instead become tools for voter purges, where long-time voters find themselves cast from the rolls, forced to prove their rights against an indifferent bureaucracy. During his tenure, in a state with 6 million voters, the former Secretary of State removed over 1.4 million voters from the rolls. In July 2017, four years free from preclearance scrutiny, he removed more than halfa-million voters from the rolls in a single day, reducing the number of registered voters in Georgia by 8 percent.4 An estimated 107,000 of these voters were removed through a “use-it-or-lose-it” scheme, under which eligible Georgia voters were designated for removal merely for not having voted in prior elections, something that is a First Amendment right.5 The process for removal is also shrouded in inefficiencies and challenges, as a number of those removed could demonstrate regular voting patterns. Of 159 counties in Georgia, 156 counties removed a higher rate of voters from the rolls post-Shelby, which resulted in an increase in the number of voters being forced to cast provisional ballots.6 While the availability of provisional ballots may be seen as a remedy, the operative concern is why the vast majority of counties, with the tacit approval of the Secretary of State, forces citizens to traverse a gauntlet of additional obstacles to exercise a fundamental right. II. OBSTACLES TO BALLOT ACCESS AND BALLOT COUNTING As vital as preclearance had been to access to registration, the most pernicious effect of its absence can be found in the very act of casting a vote. Section 5 provided an effective check against hyper-local suppressive tactics that often fly under the radar, like the proposed closing of 7 of 9 polling places in a 4 https://www.apmreports.org/story/2018/10/19/georgia-voter-purge 5 Id. 6 https://www.brennancenter.org/sites/default/files/publications/Purges_Growing_Threat_2018.pdf Abrams,

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majority-black South Georgia county last year, or the erroneous institution of “challenge” proceedings against voters of color, including troubling cases in 2015. 7 These groups are forced to scramble considerable resources and organize from a defensive posture. Even in ostensibly positive actions, like inperson early voting, some jurisdictions have opted to locate the sole venue in the police department/judicial complex, where poor relations with law enforcement serve as a chilling effect on engagement. Section 5’s restoration would require a clear-eyed and thoughtful calculus not currently mandated. Last election cycle, Georgia officials lost a series of lawsuits pertaining to access to the ballot and the counting of votes. Over several days, separate federal courts ruled against policies for rejecting absentee ballots and ballot applications under trivial pretenses, for implementing a haphazard and inconsistent provisional balloting system, and for improperly disallowing access to translators in the polling booth. However, these practices have proliferated since the suspension of Section 5, and while these lawsuits brought remedy to some, thousands more may have faced similar discrimination without the resources or the knowledge to gain relief. The core value of the Voting Rights Act was to, at last, create equal access to the ballot, irrespective of race, class or partisanship.

Yet, by denying the real and present danger posed by those who see voters of color as a threat to be neutralized rather than as fellow citizens to be engaged, Shelby has destabilized the whole of our democratic experiment. Rather than a Justice Department that prevents discriminatory voting policies from taking effect in the first place, the Supreme Court created a system of disproportionate impact, one in which justice could prevail in select instances and only after multiple federal courts intervened. As a result, post-Shelby, groups dedicated to expanding the franchise for voters of color instead must traverse an obstacle course of discriminatory voting practices, through resource-intensive litigation and advocacy work often aimed at yet another permutation of the same discriminatory policies like exact match, targeted poll closures or rejected absentee ballots. This anti-voting system has the concomitant effect of harming taxpayers, as voter suppressors nonchalantly expend tax dollars to defend voter suppression in court. At the end of the 2018 contest, I acknowledged the legal result of an election marred by widespread election irregularities. The rules of the process permitted some dubious actions, ignored unconstitutional behaviors and encouraged an abdication of responsibility by too many charged with the guardianship of this sacred trust. Therefore, I have redoubled my commitment to voting rights through the creation of Fair Fight Action. Fair Fight has filed a federal lawsuit against the Georgia Secretary of State, asking for Georgia’s preclearance requirement to be reinstated under Section 3 of the Voting Rights Act. Our groundbreaking lawsuit involves numerous co-plaintiffs including Ebenezer Baptist Church, the ancestral congregation of the Rev. Dr. Martin Luther King, Jr. We are hopeful for judicial relief from voter suppression, including the prevention of any future racially discriminatory voting changes. Costly litigation bankrolled by taxpayers should not be necessary, and 7 https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf at 139. Abrams,

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members of Congress from both parties should fulfill their responsibility to protect voters of color in Georgia and across the country. The currently proposed Voting Rights Advancement Act and Voting Rights Amendment Act represent considerable promise towards restoring the preclearance protections of the original Voting Rights Act, including needed modern-day protections like requiring nationwide preclearance to prohibit known discriminatory practices.8 I urge Congress to act on them as top priorities. Thank you again for this opportunity to appear today.

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