Ballot Blocked

The Political Erosion of the Voting Rights Act

Jesse H. Rhodes

• Publisher: Stanford University Press
• Year: 2017
• ISBN:
  9781503603530
• Edition: 1
• Topic: Jura
• Subtopic: Bürgerrechte

Voting rights are a perennial topic in American politics. Recent elections and the Supreme Court's decision in Shelby County v. Holder, which struck down key enforcement provisions in the Voting Rights Act (VRA), have only placed further emphasis on the debate over voter disenfranchaisement. Over the past five decades, both Democrats and Republicans in Congress have consistently voted to expand the protections offered to vulnerable voters by the Voting Rights Act. And yet, the administration of the VRA has become more fragmented and judicial interpretation of its terms has become much less generous. Why have Republicans consistently adopted administrative and judicial decisions that undermine legislation they repeatedly endorse?

Ballot Blocked shows how the divergent trajectories of legislation, administration, and judicial interpretation in voting rights policymaking derive largely from efforts by conservative politicians to narrow the scope of federal enforcement while at the same time preserving their public reputations as supporters of racial equality and minority voting rights. Jesse H. Rhodes argues that conservatives adopt a paradoxical strategy in which they acquiesce to expansive voting rights protections in Congress (where decisions are visible and easily traceable) while simultaneously narrowing the scope of federal enforcement via administrative and judicial maneuvers (which are less visible and harder to trace). Over time, the repeated execution of this strategy has enabled a conservative Supreme Court to exercise preponderant influence over the scope of federal enforcement.

1

Liberal Ascendance and Enactment of the Voting Rights Act of 1965

THE WINDS OF CHANGE ARE FRESHENING IN THE DEEP SOUTH, where hundreds of Negroes are being allowed this week, for the first time, to register to vote,” the Boston Globe grandly announced on August 12, 1965. “The segregationists scowl and mutter darkly; but their hands, which have so often interfered in the past, are stayed by the knowledge that the might of the Federal government is solidly on the side of the Negroes.”¹ Setting aside the purple prose, the conclusions of the anonymous editorialist were broadly correct. The Voting Rights Act of 1965, which President Lyndon B. Johnson had signed into law only days earlier, marked a decisive break with past federal civil rights laws that attempted, albeit feebly, to address the problem of widespread black disenfranchisement in the South.

Whereas previous acts of Congress had established litigation as the sole method of federal voting rights enforcement, the VRA authorized executive branch officials to intervene in southern states without the prior blessing of the federal courts. The Act suspended literacy tests in jurisdictions with low black registration and electoral participation, and it empowered the Department of Justice both to register African Americans frustrated by local registrars and to monitor the conduct of elections in jurisdictions in which racial discrimination was rampant. More radically, the VRA called for advance federal approval—or “preclearance”—of changes in election rules and regulations in jurisdictions with histories of low black electoral participation.

Enactment of the VRA resulted from the confluence of three critical developments: intense frustration among civil rights activists and, increasingly, executive branch officials with the transparent failures of existing voting rights law; the ascendance of an organized and militant civil rights movement with the capacity to dramatize the nation’s worst racial injustices; and the election to the federal government of a coalition of civil rights liberals—based primarily but not exclusively within the northern Democratic Party—with the political will to carry through strong civil rights reforms in the face of strident resistance from southern Democrats and conservative Republicans. The convergence of these three developments finally permitted the transcendence of the political, legal, and institutional obstacles that had long thwarted effective federal voting rights enforcement.

Even as the cause of civil rights liberalism surged to full tide, however, institutions with more limited exposure to the pressures of social movement activism and electoral politics played a critical—if contradictory—role in shaping the VRA. Away from the gaze of the public, officials within the Johnson administration made conscious choices that blunted the transformative potential of the Act. The Department of Justice limited the scope of federal registration and election-monitoring efforts to areas with the worst civil rights records and declined to exercise vigorous oversight of changes to election regulations in southern jurisdictions covered by the Act. Yet at almost the same time, the liberal justices of the Supreme Court ratified the major provisions of the VRA and—more radically—interpreted the preclearance provisions of the Act to apply to a broader range of election changes and structures than was clearly contemplated in the text of the statute. These crosscutting developments altered the meaning of the law in unforeseen ways, establishing important gaps between what the VRA seemed to require on its face and the way it operated in practice.

At a broader level, the enactment of the VRA gave rise to a new voting rights politics. Before 1965, national Democratic Party officials sought to suppress ever-expanding conflict over civil rights between the party’s northern-based coalition of African Americans, left-leaning workers, and progressives and its traditional center of power in the segregated “Solid South.”² But the party’s embrace of the VRA in 1965 signaled a new era in Democratic politics, in which the northern wing and civil rights liberalism became permanently ascendant. As national Democratic Party officials publicly embraced the cause of civil rights, Republican elected officials increasingly adopted conservative positions on racial matters, both to better reflect the preferences of existing coalition partners and to appeal more effectively to whites alienated by the Democrats’ racial liberalism. Ironically, just as the VRA was beginning to transform southern electoral politics, shifting party alignments threatened to destabilize the foundations of political support that had made adoption of the Act possible.

The Kennedy-Johnson Years and the Limitations of Voting Rights Enforcement

The modest achievements of a massive southwide registration drive conducted by civil rights organizations between 1962 and 1964—and the increasing incidence of white violence against organized voting rights campaigns—drew mounting public attention to the suppression of black citizenship and clearly established the necessity of more effective federal machinery to protect minority voting rights. Although both the Kennedy and Johnson administrations delayed voting rights reforms to avoid outraging southern Democrats, Johnson (under overwhelming pressure from pro–civil rights coalition partners and liberal members of Congress) belatedly adopted the cause as his own.

The Kennedy Administration’s Approach to Voting Rights Enforcement

The waning years of Republican Dwight Eisenhower’s presidency witnessed the passage of the first two civil rights measures since the end of Reconstruction—the Civil Rights Acts of 1957 and 1960. The 1957 Act protected the right to vote in federal, state, and local elections against obstruction by both state and private action, and it authorized federal civil suits against individuals who sought to hinder registration or voting because of “race, color, or previous condition of servitude.” It also created both the United States Commission on Civil Rights (USCCR), which was authorized to study racial matters and investigate civil rights violations, and the Civil Rights Division, a new unit within the Department of Justice with the power to scrutinize and prosecute alleged abuses. Under the Act, the Department could seek injunctions in federal court against actions intended to “interfere with the right to vote in any election in which a federal official is to be elected.”³

The 1960 Act modestly strengthened its predecessor. To check obstruction of federal investigations by recalcitrant southern officials, it required localities to maintain voter registration records and make them available for review by federal officials. The 1960 Act also authorized federal district courts to appoint voting referees to review rejected registration applicants in jurisdictions in which county registrars engaged in patterns or practices of discrimination.⁴

Relatively cautious in its approach to racial matters, the Eisenhower administration declined to enforce the 1957 and 1960 Acts in a vigorous fashion.⁵ The election of Democrat John F. Kennedy, who had campaigned actively for black votes, to the presidency in 1960 raised expectations among civil rights activists that progress on the voting rights front would be forthcoming.⁶ But these hopes were soon dashed. Convinced that a push for further civil rights advances would shatter the Democratic Party and obstruct his reelection, Kennedy insisted “that new civil rights legislation was neither needed at the present time nor feasible,” recalled James Farmer of the Congress on Racial Equality (CORE).⁷ (Kennedy and top administration allies went so far as to insist that proscription of the use of poll taxes in federal elections, which everyone knew were used by southern states to deny African Americans the ballot, could be accomplished only by constitutional amendment, even though the Fourteenth and Fifteenth Amendments seemed to provide ample basis for eliminating them by statutory means.)⁸ As an alternative to new legislation, Kennedy prioritized litigation and executive action, which he hoped would permit incremental progress without infuriating southern whites.⁹ Civil rights activists scoffed at this piecemeal approach; Roy Wilkins of the NAACP charged the administration with “smooth[ing] Unguentine on a stinging burn even though for a moment (or for perhaps a year) it could not bind up a joint.”¹⁰

Wanting to forestall the escalation of racial disturbances in southern states instigated by the 1961 Freedom Rides, however, the Kennedy White House sought new means to advance African American voting rights. Kennedy’s assistant attorney general for civil rights (and later attorney general) Nicholas Katzenbach explained that administration officials privately cherished the notion that if they could “get [African Americans] voting fast enough [they would] not have these other [civil rights] problems.”¹¹ With this objective in mind, Kennedy administration officials connected major civil rights organizations, including the NAACP, Southern Christian Leadership Conference (SCLC), Student Nonviolent Coordinating Committee (SNCC), and CORE, with private philanthropic funding to finance suffrage campaigns in southern states.¹² Although some activists feared that collaboration with the administration would undermine the independence of the movement, the major civil rights organizations eventually agreed that the risk was worth it. SCLC officials argued that this approach could transform scattered registration drives into “well-oiled machinery in voter registration” that could help relieve “our Southern dilemma.”¹³

Thus, in early 1962 these organizations joined forces under the aegis of the Southern Regional Council’s Voter Education Project (VEP) to organize “greatly enlarged registration programs in the South,” according to civil rights lawyer Wiley Branton, who directed the Project.¹⁴ At least twenty-seven VEP campaigns—led by professional staff but energized by thousands of youthful volunteer “shock troops”—were in the field by September 1963. Under the watchful gaze of hostile whites, campaigners organized citizenship training schools, distributed political literature, orchestrated registration rallies, and attempted to register voters in communities throughout the Deep South.¹⁵ Whereas Kennedy administration officials treasured the naïve belief that these projects would supplant more provocative tactics, some movement leaders hoped they would ignite serious racial confrontations that would force the federal government to intercede on behalf of black would-be voters.¹⁶

The Limitations of Federal Voting Rights Laws

Despite the heroic efforts of voting rights activists, however, the accomplishments of the registration drives were modest. To be sure, as the Baltimore Afro-American reported in late 1964, “the numbers of registered voters in 11 Southern states . . . doubled, from 1.1 million to more than 2 million since the 1960 presidential election,” so that black registration in that region reached approximately 43 percent.¹⁷ But as Harvard Sitkoff, David Garrow, and others have shown, this good news was tempered by the continuing disenfranchisement of millions of African Americans in the conservative strongholds of the Deep South. Indeed, black registration rates for Alabama, Louisiana, Mississippi, and South Carolina were 23 percent, 32 percent, 6.7 percent, and 39 percent, respectively.¹⁸

These discouraging results were attributable to the intensity of ongoing white resistance to black enfranchisement in the Deep South, the unwillingness of the Kennedy and Johnson administrations to aggressively enforce the law, and the structural deficiencies of the 1957 and 1960 Acts. In many southern counties, both subtle and blatant obstruction of black registration and voting continued unabated. States throughout the South enforced prerequisites to voting—such as rules that voters exhibit the ability to read, write, and provide a “reasonable interpretation” of provisions from the US Constitution or state constitutions—that were difficult for many disadvantaged black (and white) citizens to attain. These rules also invested white county registrars with enormous discretion to determine whether applicants passed or failed their assessments, and registrars employed this power in aggressive fashion to deny African American applicants access to the ballot.¹⁹

The discriminatory administration of election laws was frequently accompanied by threats—and execution—of economic coercion and physical violence against African Americans seeking to exercise their rights as citizens. Because the economic circumstances faced by the vast majority of southern blacks were precarious, the mere threat of e...