by Maria Wood
When the first federal elections were held in the United States only white men who owned property could vote. Since then, the franchise has been expanded three times through the 15th, 19th, and 26th amendments to the U.S. Constitution.
Frederick Douglass, the famous African American abolitionist, recognized the importance of having access to the ballot box. Shortly after the Civil War ended, he said, “Slavery is not abolished until the Black man has the ballot.” After the 14th Amendment, which would give the formerly enslaved birthright citizenship, was proposed in 1866, Douglass said, “Without the vote, my citizenship is but an empty name.”
In February 1870, the states ratified the 15th Amendment, which stated, “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.” To be clear, the amendment referred to the right of Black men to vote. Women would not have that right until the 19th Amendment was ratified in 1920.
After the 15th Amendment was passed, there was a period, during the Reconstruction Era (1865-1877), when many Black men were elected to office. According to History Makers, a research and educational institution focused on African American history, during the Reconstruction Era, more than 1,500 African Americans were elected to various local, state and national political office in the former Confederate states, including seven who were elected as U.S. senators or congressmen.
White Southerners, however, pushed back and devised ways to hold onto control in the South, conspiring to end Reconstruction by making a deal to support the election of Rutherford B. Hayes as President of the United State in exchange for the withdrawal of federal authority in the South. With no federal oversight in the region, by 1877 control of the South fell back into the hands of white men and Reconstruction ended. As a result, by 1905, African American men, for the most part, had been disenfranchised in every Southern state. In addition, the last African American elected to the U.S. Congress was forced out in 1901.
The backlash begins
Soon after the passage of the 15th Amendment, Southern states instituted voting laws that were designed to disenfranchise Black voters. For example, grandfather clauses stated that if you had the right to vote before 1867 or had a “lineal descendant” (in other words a grandfather) who had the right to vote, you would be exempt from “educational, property or tax requirements for voting.” The freedmen only had the right to vote since the 15th Amendment’s adoption in 1870.
In addition, literacy tests, poll taxes, and outright intimidation blocked African Americans from exercising their right to vote. Jon M. Greenbaum, chief counsel and senior deputy director for the Lawyers’ Committee for Civil Rights under Law, a civil rights organization, points to the desire for white people to maintain power in Southern states along with racism for the enactment of those restrictive voting laws. After the Civil War, the plantation system, which the South’s economy had relied on, ended, he says. So, in the late 1800s, there were more Black people than white people in the South.
“If all those Black people are able to vote, they’re going to be determinative about who gets elected,” Greenbaum says. “And that was a real threat. You combine that with racial animus toward Black people and you can see the reasons why in the later 1800s, there were these attempts to undermine the 15th Amendment and to effectively take the right to vote away from Black people, especially in the South.”
The states justified those laws by contending all people were impacted equally. But the laws effectively made it more difficult for Black people to vote. For example, in order to vote, some states charged residents a poll tax. White people could afford the poll tax, while Black people generally could not. While poll taxes are mostly associated with Southern states, some Northern and Western states—California, Connecticut, Maine, Massachusetts, Minnesota, New Hampshire, Ohio, Pennsylvania, Vermont, Rhode Island, and Wisconsin—had them as well.
In addition, several states instituted literacy tests. Although everyone had to take the literacy test, African Americans faced a tougher challenge because at the time they may not have had the same education as white people, says Penny Venetis, a professor at Rutgers Law School in Newark and an expert in civil rights law.
“Officials could say, everybody had to do it, it’s a basic requirement of citizenship, but the impact was greater on the African American community,” Professor Venetis explains. “Voting is how we exercise political power. If you dilute one group’s political voice, they can’t participate in democracy.”
The courts for decades upheld those restrictions—“legitimizing that which was illegitimate,” Greenbaum says. By the 1950s, the fight for expanded voting rights for African Americans began.
Civil Rights Act of 1957
In 1957, President Dwight D. Eisenhower signed into law the Civil Rights Act of 1957, the first major civil rights legislation since the Reconstruction Era. It gave the U.S. Department of Justice (DOJ) the power to prosecute any violation of voting rights.
Advocates launched a series of demonstrations in the early 1960s to push for civil rights, including access to the ballot box. One of those marches took place on March 7, 1965, when John Lewis, who later became a U.S. congressman representing Georgia’s 5th congressional district, led marchers across the Edmund Pettus Bridge in Selma, Alabama. The marchers were met with brutal force by state troopers in an event later termed “Bloody Sunday.” The sight of troopers beating peaceful demonstrators shocked the nation and spurred public opinion in favor of racial justice.
“You had extraordinary measures Black people in the South and others took to fight, and in some cases die, for the right to vote,” Greenbaum says. “It took a period of decades to dismantle the disenfranchisement laws. Many Black people in the South went their entire lives never able to exercise their right to vote.”
Voting Rights Act of 1965
Out of that long struggle came the landmark Voting Rights Act (VRA) of 1965. Signed by then President Lyndon Johnson in a ceremony witnessed by Rev. Martin Luther King Jr., the act outlawed literacy tests and gave the federal government the power to oversee voter registration in states where fewer than 50 percent of the non-white population was registered to vote.
Section 5 of the VRA, known as the “preclearance” provision, mandated that the DOJ or a federal district court review and approve any changes in voting laws in states with a history of voting practices that unfairly blocked African Americans from the ballot box. Section 4 of the VRA set out a formula to decide which states were subject to preclearance.
According to the DOJ’s Civil Rights Division, the original states covered by preclearance were the entire states of Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia, as well as parts of North Carolina. Between 1968 and 1972, the entire states of Alaska, Arizona and Texas were added, as well as parts of California, Florida, Michigan, New York and South Dakota.
The same year the VRA was signed into law, the 24th Amendment to the U.S. Constitution was ratified. The amendment banned poll taxes for federal elections. With the 1966 case of Harper v. Virginia Board of Elections, the U.S. Supreme Court further ruled that poll taxes in all elections—federal, state, or local—are unconstitutional.
The VRA significantly increased African American voter registration. For example, according to the American Civil Liberties Union, in Mississippi, the percentage of African Americans registered to vote rose from 6.7% in 1964 to 59.8% by 1967.
Along comes Shelby v. Holder
Since it became law in 1965, the VRA was reauthorized, with some amendments, five times—in 1970, 1975, 1982, 1992 and 2006. According to the Congressional Research Service, on all those occasions, “the House and Senate agreed that unique federal action was necessary to protect voting rights for racial minorities and members of certain language-minority groups.”
In 2013, the U.S. Supreme Court ruled on a case that dealt with Section 5 of the VRA. The suit began in 2010, when Shelby County in Alabama filed a suit contending Section 5’s preclearance provision was unconstitutional. In Shelby v. Holder the Court ruled that the formula used to determine which states fell under Section 5 preclearance was outdated.
Writing for the majority, Chief Justice John Roberts said the preclearance standards set in 1965 no longer apply. “The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s,” Roberts wrote. “But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”
Almost immediately after the Shelby decision, some Southern states began proposing more restrictive voter registration laws, Greenbaum recalls. For example, Texas announced it would go forward with stricter voter ID laws that had previously been blocked under Section 5 of the VRA, he notes.
While the Court’s decision didn’t strike down Section 5, it invalidated the coverage formula from Section 4, which made Section 5 unenforceable. In addition, the Court left Section 2 of the VRA intact. Section 2 of the act contains a nationwide prohibition on voting
qualifications based on race, color, or language-minority status.
The Court also left open the possibility that Congress could come up with a new preclearance formula. In August 2021, the U.S. House of Representatives passed the John Lewis Voting Rights Advancement Act, which would update the formula to identify states that could be subject to preclearance. To become law, the Act needs to pass in the U.S. Senate as well. So far, it hasn’t been brought to the Senate floor for a vote.
Relying on Section 2 of VRA
In 2021, the U.S. Supreme Court made another important voting rights decision. In Brnovich v. Democratic National Committee (DNC), the Court ruled on two Arizona voting regulations. One regulation required residents to vote in-person on Election Day. The other made it a felony for anyone other than a family member, caregiver, election official, or postal worker to collect an early ballot. Under Section 2 of the VRA, the DNC filed suit against Arizona, claiming the regulations harmed the state’s Black, Native American, and Hispanic voters.
Section 2 of the VRA was amended in 1982 to strengthen oversight and prosecution of voting practices that “tend to enhance the opportunity for discrimination against the minority group.” The U.S. Supreme Court ruled Arizona’s regulations didn’t violate Section 2 of the VRA, as neither regulation made it harder for minorities to vote and that Arizona’s voting system was “equally open” to all.
Professor Venetis says the Brnovich ruling echoes the justification for discriminatory voting laws used to circumvent the 15th Amendment following the Civil War. As long as there was no obvious intent to disenfranchise, then the law could be considered legal even if the real-life impact hindered African American voters.
“Showing intent to disenfranchise is very difficult to do,” Professor Venetis says.
Greenbaum predicts filing voting discrimination suits under Section 2 of the VRA will be more difficult after the Brnovich ruling.
“The ruling suggests if a state starts restricting a particular mechanism of voting that Black voters were more likely to use than white voters that might be okay,” Greenbaum says. “It flies in the face of the intent of Section 2 to ban jurisdictions using mechanisms related to the right to vote that make it more difficult for people to vote.”
Discussion Questions
- Why do you think throughout history such extreme efforts have been taken to suppress African American’s ability to vote?
- In the Shelby decision, Chief Justice Roberts wrote that there is no longer a racial disparity in voting as there was in the past. Do you agree or disagree with his assessment? Explain your answer.
Glossary Words
animus — hostile feeling or animosity.
disenfranchise — to deprive of a privilege or right (i.e., the right to vote).
franchise — a constitutional right reserved to the people, for example, the right to vote.
poll tax—a voting fee, which was used to disenfranchise Black voters.
preclearance—the process of seeking approval from the U.S. Department of Justice for changes related to voting.