Supreme Court: How the justices revived Jim Crow voter suppression

In 1965, the United States began a grand experiment: We decided to finally have free and fair elections.

Before President Lyndon Johnson signed the Voting Rights Act of 1965, the United States was more or less a white ethnostate. As Johnson explained in an address to Congress proposing that law, “every device of which human ingenuity is capable” was used in the South to deny Black people the right to vote.

The Voting Rights Act, and especially a provision of that act requiring states with a history of racism to “preclear” new voting laws with federal officials before those laws could take effect, may be the most effective civil rights law in American history. On the day the Voting Rights Act was signed, only about 5 percent of Black Mississippians were registered to vote.

Two years later, that number was 60 percent.

Yet in decisions like Shelby County v. Holder (2013) and Abbott v. Perez (2018), the Supreme Court dismantled much of this landmark voting rights law.

The first episode of By the People?, a new podcast miniseries that I’m hosting, lays out what happens when the United States abandons its brief commitment to ending race discrimination at the polls. I spoke with Carol Anderson, a professor of African American studies at Emory University and the author of One Person, No Vote: How Voter Suppression Is Destroying Our Democracy.

In this conversation, we examine the tactics Southern racists used to disenfranchise voters prior to the Voting Rights Act — and the unsettling similarities between those tactics and the methods of voter suppression that have proliferated since Shelby County.

An edited transcript of our conversation follows.

By the People? is a special podcast miniseries associated with Vox’s podcast The Weeds. You can listen to future episodes of By the People? by subscribing to The Weeds wherever you listen to podcasts, including Apple Podcasts, Google Podcasts, Spotify, and Stitcher.


Ian Millhiser

Walk our listeners through how the Voting Rights Act is supposed to operate. And then what happened to it after the Supreme Court got its hands on it.

Carol Anderson

So the Voting Rights Act came into being in 1965 and then was reauthorized several other times.

What made it so different than anything that had been done before, in this area, was that it was a preemptive strike. The previous attempts had been where states would implement a racially discriminatory voting law. Then there would have to be a lawsuit, and years would go by while elections based on that discrimination are going on.

What the Voting Rights Act did was it required preclearance, so that states that had fewer than 50 percent of their age-eligible adults registered to vote and had used one of the devices coming out of a thing we call the Mississippi Plan, which was put in place to disenfranchise Black voters. So if they use the poll tax, if they use the literacy test, it suggested that something was really foul in the way that they were handling their elections.

And so it required, then, that any time that they wanted to make a change to their voting laws, they had to get the okay, first from the US Department of Justice or from the federal courts in DC. What that did was it stopped these nasty laws from being implemented and taking hold and shaping and cauterizing the electorate. And by stopping the bad stuff before it can happen, all of a sudden you saw a change.

In Mississippi, for instance, prior to the Voting Rights Act in early 1960, only 5 percent of Black adults were registered to vote. Two years after the Voting Rights Act, it was almost 60 percent. That’s the power of the Voting Rights Act.

So when you remove that kind of block from the states who are trying to figure out how do we stop Black people from voting, how do we stop Latinos from voting, how do we stop Asian-Americans from voting? When you prevent that kind of short-circuiting of racism, you can allow democracy to work. And that creates this environment that we’re in right now.

Ian Millhiser

So, on that note, I want to read you a quote from Chief Justice Roberts that I think you’re going to recognize. He said that “things have changed in the South. Voter turnout and registration rates” — and here he means between Black and white voters — “now approach parity. Blatant discriminatory evasions of federal decrees are rare, and minority candidates hold office at unprecedented levels.”

The chief would go on to argue that because America just isn’t as racist as it used to be, some of the voting rights measures we implemented to combat Jim Crow are no longer justified.

So what’s wrong with the chief justice’s assessment of racism in America?

Carol Anderson

There were so many things wrong with his decision. One about somehow the — the diminution of racism in America, given the vitriol that the Obamas had to deal with in that time, given the rise of right-wing militias in that time, given the fact that you even had over 700 proposed changes blocked by the US Department of Justice because of racial discrimination.

And the Voting Rights Act didn’t just pick on the South. I mean, that’s a really nice narrative. But there were bail-in and bail-out provisions. So the bail-out provisions basically said all you have to do if you’re already under the preclearance provisions of the Voting Rights Act is not act a fool. [Laughs] Right. All you had to do.

Ian Millhiser

What was it? It’s like 10 years that you had to just not be racist.

Carol Anderson

Try it, try it. You might like it. Right. So that’s all you have to do. And you could get bailed out.

And then there were also bail-in provisions so that there were areas in California, areas in New York, areas in Arizona that were getting bailed in because they were discriminating against their population.

Ian Millhiser

And so bail-in means that it’s a state that wasn’t subject to preclearance. It didn’t have to get its laws approved by people in DC, but because it showed a pattern of racism, they said, guess what, guys, now you’re under preclearance as well.

Carol Anderson

Exactly. And so these weren’t these entire states, but they were jurisdictions within the states like counties and things like that within California, because it was really clear that something really foul and wicked, racially discriminatory was happening consistently.

And so the Voting Rights Act wasn’t this kind of calcified, archaic … you know, you almost get this — this, this image of a grandpa on the porch, you know, a 109-year-old grandpa in the rocking chair who’s arthritic and can’t move anymore when you’re reading John Roberts’s decision. But that’s not the Voting Rights Act. It was vibrant, and it worked. And the moment that the Supreme Court gutted the preclearance provision of the Voting Rights Act, it was bad.

Ian Millhiser

So we’re now about a little more than five years out from Shelby County. Can you tell me what that fallout looks like now that states have had some time to not be under preclearance?

Carol Anderson

You mean, states have had the time to really act a fool without having the US Department of Justice go, oh, you are acting a fool.

Two hours after the Shelby County v. Holder decision, Texas implemented its voter ID law. And it is a voter ID law that has been back and forth in the courts. That same kind of litigation that we had before the Voting Rights Act and the courts have ruled that that voter ID law was racially discriminatory and that it had a racially discriminatory intent. And it’s the way that the laws are written so that it sounds fair. “Everybody has an ID. I mean, how hard is it to show an ID?” I mean, how many times have we heard this? Like, so if you don’t want to show ID, there must be something wrong with you. But it’s not. It’s the way that they write these laws.

Ian Millhiser

What is it about voter ID? I do think that if you’re a middle-class American, it’s just so obvious to you that people have IDs. It takes some explaining for a lot of people to understand how these things function as voter suppression laws. So walk listeners through that.

Carol Anderson

I sure will. And I can go state by state by state. So let’s take Texas first.

So what Texas did in its law, it said you must have a government-issued photo ID, but your student ID from a state university doesn’t count. But your gun registration does.

And so you can see how you can begin to shape your electorate by shaping the kinds of IDs that are eligible, that are viable to access the ballot box and the kinds of ID that aren’t.

The other thing that it did is it knew that one-third of its counties didn’t have a Department of Motor Vehicles. And as the NAACP Legal Defense Fund identified, that affected about 1.6 million voters who were overwhelmingly Hispanic, African American, and poor. Texas, originally in its law, its draft law, realized that because one-third of its counties didn’t have a Department of Motor Vehicles, that people were going to have to make about a 250-mile round trip to get a driver’s license.

And so they had reimbursement language in there. Before the bill passed, they drew a red line through the reimbursement. So now think about this. You don’t have a driver’s license. The nearest driver’s license bureau is 125 miles away. So you’re gonna have to make a 250-mile round trip, but you don’t drive and you don’t have public transportation that can take you 250 miles. How do you get there? How do you get the driver’s license, as an American citizen, for you to be able to vote?

Ian Millhiser

So I’d like to draw out a distinction between racism and just partisan hackery here. You look at student IDs — I actually don’t know, I haven’t seen data on whether Black people or white people are more likely to have student IDs. But I do know that college students, when they vote, are more likely to vote for Democrats.

And this is something I see over and over again. I see laws that have racial implications. But the purpose isn’t necessarily to disenfranchise Black and brown people. The purpose is to disenfranchise Democrats.

I might be asking you to practice law without a license here, but we have a Constitution that forbids race discrimination. We have a Voting Rights Act, what’s left of it, that prohibits race discrimination. There actually isn’t a provision in the Constitution that says that you can’t disenfranchise someone for being a Democrat. So how do you deal with that when you have these provisions that appear to be race-neutral and sometimes are race-neutral, but there’s still voter suppression?

Carol Anderson

Thank you. Thank you. Thank you for that question. Because this is, you know, it’s apocryphal, but they say that Mark Twain said history may not repeat itself, but it sure do rhyme.

When Mississippi in 1890, and so, yes, I’m taking us back to the original massive disfranchisement coming after the Civil War. And in the Mississippi Plan of 1890, Mississippi said, we don’t want Black folk to vote, but we cannot write a law that says we don’t want Black folk to vote because we’ve got this 15th Amendment thing now that says you cannot write a law saying we don’t want Black folk to vote.

So we’re going to use these legacies of slavery. We’re going to use these euphemisms and we’re going to make these keys to access the ballot box while not saying we don’t want Black folk to vote.

And so this is why you get the poll tax, which is based on wealth. And if you’ve had centuries of slavery, followed by the Black Codes, followed by sharecropping, being able to spend 2 to 6 percent of your farm family annual income is well nigh impossible in terms of being able to vote.

But it didn’t say we don’t want Black folk to vote. It just said we want people to be able to pay for the elections.

And so we’ve got to understand that we’re dealing in a world where we’ve mastered the synonyms for race, like the voter ID. It sounds reasonable and like everybody has an ID, but you take North Carolina. North Carolina looked at data and said who has what types of ID by race? And then we’re going to privilege the kinds of ID that whites have, and we’re going to exclude the kinds of ID that African Americans overwhelmingly have.

What we also need to understand is that we’re in this moment because when we’re looking at a lot of voter suppression, a lot of these techniques are coming through the Republican Party. And that is because, again, history. The Southern strategy, where toward the late 1960s, after Lyndon Johnson has signed the Civil Rights Act and the Voting Rights Act, Southern Democrats were apoplectic because they’re like, wait a minute, let me see if I get this right? We’re supposed to be in a party that has the federal government saying they recognize and will enforce the citizenship rights of Black people? What are we supposed to do?

And the Republicans said, come to me. Okay. And the Southern Strategy wooed them in saying that you have a home here.

What happened is that when the Republicans wooed that toxin — a frankly pure, uncut white supremacy — into the Republican Party, the Republicans thought that they could handle it. But that toxin was so virulent that what it’s done is it has driven the moderates out of the Republican Party and the Republicans have moved further and further to the right as America has become more racially diverse.

And so then the question is that you get this weird linkage where by saying we’re only going after Democrats because the Democrats are much more diverse as a party that it looks like, oh, we’re going after Democrats. So this is really just a partisan issue when in fact, it’s absolutely racialized.

Ian Millhiser

One of the most remarkable legal briefs I’ve ever read was Texas was sued over a racial gerrymander. And what they said in their brief is oh, this isn’t a racial gerrymander, we didn’t disenfranchise these people — in this case it was Latinos — we didn’t disenfranchise them because of their skin color. We disenfranchised them because they’re Democrats.

And the Supreme Court said that’s okay.

Carol Anderson

Right!

So, I mean, you think about the punt that the Supreme Court did on extreme partisan gerrymandering up in Wisconsin. Now that extreme partisan gerrymandering, what they were arguing is that this is just political. It’s just political, as the Republicans drew a map that eliminated as many competitive districts as possible, which was going to reduce the voter turnout.

But they also drew the maps with incredible powerful software and almost Cambridge Analytica data about who lived where, in such a way that they said, regardless of the vote, we will always have the majority of the power.

I mean, think about that as a concept in democracy, regardless of the vote, We will always have the majority of the power. And it worked, so that first time that that map ran, Democrats received, I think, 52 percent of the vote and 38, 39 percent of the seats. And it got worse ever since.

But when you looked at those maps, what they were really doing was just diluting the power coming out of, say, Milwaukee, where 70 percent of the state’s Black population lives. So if you can dilute the power where 70 percent of the state’s Black population lives, you can do some damage in the Supreme Court. This really looks like a partisan issue that has nothing to do with, I don’t know, one person, one vote — one of your foundational principles in law. But I digress.

Ian Millhiser

So I wanted, for a moment, to take the conservative argument seriously here.

The argument I hear over and over again is voter fraud. That we need a voter ID law because someone might pretend to be someone else at the polls. We are afraid of voting by mail because someone might gather up a bunch of people’s ballots and not vote for the people that they want to vote for. And so how concerned should I be that voter fraud is poisoning our elections?

Carol Anderson

Thank you for that question.

So first, I’m going to talk about a study done by a law professor out of California, Justin Levitt. And he added up all of the votes cast between 2000 and 2014. And he found that a billion votes — that’s Carl Sagan-ish — a billion votes had been cast in elections in the United States. And there were 31 cases of voter impersonation fraud in that 15-year span with a billion votes.

But if you don’t believe a California law professor, let’s actually listen to the vote suppressors themselves when they have to go into, say, federal court. And they’re arguing for voter ID because we have all this massive, rampant voter fraud — [Texas Gov.] Greg Abbott, and he’s arguing we’ve got massive, rampant voter fraud.

And the judge is like, how many? Massive! How many? Rampant! How many? How many?

Two.

Two cases out of 20 million votes.

You take Kris Kobach out of Kansas who is arguing for the barriers that he put in place to access the vote and that led to 35,000 people being pushed off. And he’s like, we’ve got all of these noncitizens who are just poised to steal our elections.

And the judge said, how many? How many? Massive! How many?

One.

Ian Millhiser

So one problem that I think I hear about after every single election is that there’s always some precinct where there’s a five-hour line. And it seems to happen in one of two places. It happens in communities of color, and it happens on college campuses. So, like I gather from reading your book, this isn’t an accident. And I wonder if you could walk me through how it happens.

Carol Anderson

You know, I’m in Atlanta. I understand why Ray Charles sings Georgia.

How it happens, it deals with resource allocation. So in predominantly minority precincts, you don’t put enough working machines in. You don’t put enough poll workers in. And so it creates these lines that stretch from here to eternity by not having working machines, by not having enough poll workers, by not having enough polling places for the density of the population.

One of the things that happened after Shelby County v. Holder is that Georgia closed over 200 polling places, 75 percent of which were in minority and poor communities. So when you begin to limit the number of places where you can vote and you start funneling a population into fewer and fewer spaces, and then you put fewer machines and fewer poll workers, I liken it to — it’s a couple of days before a big holiday, and you run into the store to get the groceries for the big meal, right? There’s supposed to be 22 cash registers open. Instead, there are four.

Four where they’re supposed to be 22, what do you think that line looks like? And you begin to start making these calculations as you’re looking at these lines of, wow, that line is stretching all the way back into the other aisle.

Ian Millhiser

Yeah, maybe I don’t need Stovetop this year.

Carol Anderson

Right?

So this is how it works. So here, I mean, a recent report has come out that African-Americans and Hispanics spend the most time in line [at polling places]. …

We saw that here in the 2020 primary in an area in Atlanta that is very diverse, the lines were up to about five hours. In Chastain, which is a wealthier, predominantly white neighborhood, the line was six minutes. So five hours, six minutes.

And what that is designed to do, it is designed to say, I don’t need Stovetop. Right? It is designed to dissuade people from standing in that line. And what we know from the research is that not only does it dissuade them, but they’re telling their community, they’re telling their families, they’re telling their friends, you know, “I was in line for five hours.” And it has a depressive effect. That’s what it’s designed to do.

Ian Millhiser

One thing that I really struggle with as a journalist is the research that I’ve seen on when people hear about voter suppression — it suggests that the mere fact that someone is hearing this conversation that we’re having can potentially deter someone from voting. But I feel like we’ve got to tell this truth because nothing will be done if we don’t.

So let’s take this in a somewhat more hopeful direction.

Carol Anderson

Absolutely.

Ian Millhiser

What do we want people to hear so that they know that despite all these obstacles, they can be overcome?

Carol Anderson

To me, the first thing, and one of the reasons I wrote the book — so let me talk about the reason why I wrote the book and then move through there — is that I was watching too many of the pundits after the 2016 election just say, “Well, you know, Black folks just didn’t show up,” you know?

And they just stayed home because, “well, they weren’t feeling Hillary. I mean, you know, she’s not Obama.”

This narrative that those Black folks just didn’t show up — so, yes, Black voter turnout went down by 7 percent. But this was the first presidential election in 50 years without the protection of the Voting Rights Act. And these states, over half of the states in the United States, had some voter suppression law in place. And so part of this is for folks to understand that there is a system that is doing this. And so it’s not just you that somehow individually didn’t get your absentee ballot mailed to you or got kicked off of the rolls and you thought it was just you.

Between 2014 and 2016, I believe the Brennan Center had it — [almost] 16 million people have been purged off the voter rolls. So the first thing is to understand is it’s not a kind of individual thing, but that there’s something out there. And once we know there’s something out there, then we know how to attack it. We know what it is. We know how to go for it.

So I have in the book the special election in Alabama in 2017. Right? So this is that special election for the US Senate. And it has Judge Roy Moore, who’s got [racism and] every -ism dripping off of him? Right. But he’s the frontrunner. The polls show that he’s going to win.

I don’t even know whether it’s despite or because of his -isms. And he’s coming up against Doug Jones, and that Black community that had every method of voter suppression applied against them and civil society rose up.

They understood how the methods worked and how to get around them, over them, through them. It was beautiful. It was beautiful.

They went after the issue of felony disenfranchisement. They went after the issue of poll closures. They went after the issue of wrong information. They did the heavy lifting of democracy. And in that election, John Merrill, who’s the secretary of state, thought that voter turnout would be about 25 percent. Actually was 40 percent, but in the Black Belt counties, it was 45 percent, 5 percentage points higher.

So the folks who had had the most done against them rose up because of all of the grassroots mobilizing and organizing that was happening. And this is why we do not have US Sen. Roy Moore. Thank you, Jesus.

What happens then in these elections? We have to mobilize and organize so that we get policymakers in place who actually believe in democracy. This is part of what we saw happening in Virginia. Virginia had had all of these voter suppression laws in place.

But people organized and mobilized and turned out to vote. Virginia started doing away with felony disenfranchisement, started putting in measures dealing with voter registration and dealing with measures that really opened up democracy. And so it can be done.

And it means that we have to fight that initial battle of moving through all of this voter suppression and basically ridding our system of those who don’t believe in democracy, who don’t believe that American citizens have the right to vote, and who treat the right to vote as a privilege that you have to earn by … figuring out how to go 250 miles to go get a driver’s license or figuring out how to stand in line on a workday for five hours to vote.

So that’s how we win. That’s how we rid this system of this ick. It’s getting people in Congress who believe in voting rights, who will therefore pass the John Lewis Voting Rights Act so we can begin to get the kind of protection we need.

Ian Millhiser

So that’s a great place to stop. I want to ask you one more question, which is — this is the question I’m gonna ask everyone at the end of the podcast — what is your plan that you have planned out in advance to make sure that your vote will be counted?

Carol Anderson

I have decided to go paper.

So I requested my absentee ballot in July for the November election. And I’m tracking it, I’m tracking the status of that request online. And I’m making a screenshot of that request. So I have documentation.

I’m doing it that way. I’m not going to do it via the mail. I’m going to go to the drop box and put my absentee ballot in the drop box. That is my plan to vote, so I can ensure, a) that my vote is counted, b) that I can track it, and c) if all hell breaks loose, that we have an auditable paper trail of the votes. So that is my plan for voting.


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