Hiram Revels was the first African American elected to the U.S. Senate, where he represented Mississippi. A Republican elected in the Reconstruction years, Revels was born in North Carolina and decamped to Illinois and Indiana to obtain the education unattainable to him in the segregation-stained Fayetteville of his youth. Already an ordained minister and educator, Revels spent just a year in the Senate — he was appointed to finish the term of a senator who vacated his seat at the start of the Civil War — but spent it advocating for the integration of schools and railroads after the defeat of the Confederacy augured, deceptively, a renewed era in race relations. Ironically, in an attempt to pursue a post-Civil War détente with his white Southern brethren, Revels argued on behalf of a bill that would have guaranteed the franchise — and the right to hold office — to the disenfranchised members of the Confederacy.
The 15th Amendment to the Constitution, following a bruising ratification fight, was adopted on March 30, 1870. The language reads:
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.
While the amendment was ostensibly aimed at granting black men the right to vote, the end of Reconstruction in the late 1870s saw the passage of several discriminatory measures clearly aimed at weakening the statute. By 1894, Congress had repealed much of the law’s power (originally enshrined in The Enforcement Act of 1870), and by 1896, when the landmark Supreme Court ruling Plessy v. Ferguson found “separate but equal” to be constitutional, there was only Justice John Marshall Harlan’s eloquent dissent:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution in color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful….
As thousands recently gathered to commemorate the 50th anniversary of the five-day, 54-mile march for civil rights from Selma to Montgomery, Alabama, the celebration was blighted by a pall that Harlan would have well understood. The march, of course, catalyzed the passage of the Voting Rights Act of 1965, the capstone achievement of the Civil Rights movement. And now, 50 years after Alabama troopers attacked the first group of marchers on the Edmund Pettus Bridge and elsewhere, assaulting them with billy-clubs, whips and tear gas as blood-soaked images were televised to a horrified nation, voting rights across the South and the Voting Rights Act itself remain fraught with danger.
The Voting Rights Act, among other things, enshrined into federal law the ambitions of the 15th Amendment’s prohibition on voting discrimination and literacy tests. But in 2013, the Supreme Court ruled in Shelby County v. Holder against the part of the law — Section 5 — stipulating a special enforcement provision in which a legal eye was kept on mainly southern regions of the country where the likelihood of continued discrimination loomed largest. Under Section 5, certain states and local governments were mandated to obtain federal “preclearance” (from the U.S. Attorney General or the U.S. district court of D.C.) for any changes to local or state voting laws in order to prevent said alterations from having a discriminatory effect. Section 4 contained the crucial formula for preclearance, which would take into account a particular area’s history of discriminatory voting patterns before permitting any changes.
The 5 to 4 Supreme Court vote held that Section 4 was “based on 40-year old facts having no logical relation to the present day,” and decreed that the ongoing requirement of preclearance placed an undue burden on the concept of federalism, thus creating an imbalance between the relationship of the federal government to the rights of the targeted states. The Court did not strike down Section 5, yet with no new formula in place by which to determine preclearance, it will remain toothless until Congress creates one.
Unsurprisingly, our toothless Congress has left the matter in limbo. And it’s worth remembering that it was George W. Bush who signed the reauthorization of the Voting Rights Act in 2006, courtesy of a Congress that largely supported him. In fact, at the time of the reauthorization, Bush not only delivered a warm address to the NAACP, but no Republican senators opposed the legislation. In the wake of the Shelby decision two years ago, replacement legislation was introduced, reflecting at least a theoretical bipartisan commitment to voting rights, but the rancorously right-wing Congress, zealously out to stifle as much of Obama’s agenda as it can, opposes the idea.
Long before President Nixon race-baited with his “Southern Strategy,” long before President Reagan blew dog whistles about “states rights” and “welfare queens,” there existed a faction of Republicans who were arguably more progressive on race than Abraham Lincoln. Known as “Radical Republicans,” their Reconstruction-era reforms enabled men, like Hiram Revels, to hold elective office, supported suffrage for former slaves, and they generally pursued policies allowing blacks to participate fully and freely in American life. Even in the 20th century, the GOP was crucial to the passage of both The Civil Rights Act of 1964 and The Voting Rights Act the following year. (As a former New Dealer turned Barry Goldwater acolyte, Reagan opposed The Civil Rights Act of 1964, felt The Voting Rights Act “humiliated the South” and opposed the portion of The Civil Rights Act of 1968 known as the Fair Housing Act.) Given near-unanimous southern opposition to racial equity, civil rights supporters and President Lyndon B. Johnson needed the support of various GOP members to pass these bills, including then-newbie members of Congress, Gerald Ford of Michigan and Bob Dole of Kansas, and redoubtable parliamentarians like Senator Everett Dirksen of Illinois to counter the “no” votes of segregationist Southern Democrats.
Not so in 2015. Nearly three years before the Shelby ruling, many Republican-dominated state legislatures in Dixie initiated a host of measures to combat an apparition, known as “voter fraud,” that included new voter ID laws, fewer voting sites and reduced numbers of voting days. In the absence of a viable preclearance formula post-Shelby, many of the states that historically defended Jim Crow — including but not limited to North Carolina, Tennessee, Alabama and Arkansas — moved to institute even tighter new rules for voting. Most egregiously, all Alabama voters must now show government-issued voter identification in order to vote — a rule now duplicated by several other states. The results are heavily gerrymandered Congressional districts, and states. mainly below the Mason-Dixon line, where large black populations are represented state-wide by white lawmakers exclusively. Impoverished minority communities, in other words, have been disenfranchised by bureaucratic and expensive red tape requirements for access to the ballot box. The Voting Rights Act, then, is effectively dead. For now.
Republican intransigence in Congress, underlying racial animus and a reflexive hostility to anything Obama have created a undemocratic stew of apathy and injustice so noxious that conservative-led state legislatures have run amok. Sections 4 and 5 of The Voting Rights Act unquestionably placed the onus on states where American apartheid once flourished and where Republicans are celebrating its rebirth. In the years following the original enactment of The Voting Rights Act, the Supreme Court fortified the Section 5 requirement. Not only did the Court uphold the law, but a lopsided majority of justices resolutely maintained that the Fifteenth Amendment’s enforcement clause gave Congress “full remedial powers” to prevent racial discrimination in voting. In and of itself, the Act was a “legitimate response” to the “insidious and pervasive evil” that had denied blacks the right to vote since the Amendment’s adoption in 1870.
Notably, The Voting Rights Act was fiercely challenged in 1966 when South Carolina argued that the law contravened a state’s right to control and administer elections. The eventual ruling, South Carolina v. Katzenbach, saw the justices issue an 8 to 1 decision upholding the constitutionality of Section 5 (and with it, Section 4), and its compulsory federal oversight. As the decision perceptively revealed:
Congress had found that case by case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.
Would that this remained so.