by Atiba R. Ellis, Professor of Law, West Virginia University College of Law. Twitter: @atibaellis
*This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.
The cornerstone of our democratic republic is the right to vote. The vote allows “We the People” ultimate say over government. The vote allows “We the People” to reject big-money-funded misinformation, the erosion of fundamental rights, and the degradation of public policy. As the Supreme Court has said for over a century, the right to vote is the most fundamental political right because it is “preservative of all other rights.”
To be effective at these (admittedly lofty) goals, we also have to recognize that the diversity of our electorate matters. For government to be legitimate, all citizens should be able to participate. Arbitrary bars to political participation raise questions of the validity of representative bodies. History has shown that in the absence of broad enfranchisement, government only acts for the unrepresentative majority. That majority can (and does) marginalize the minority when it comes to the minority’s status as equal citizens. This describes the majoritarian racial domination that defined the Jim Crow era of the nineteenth and twentieth centuries. The Voting Rights Act of 1965 (the “VRA”), which we celebrate in this symposium, is the Constitution’s weapon against this racial domination.
This state of racial domination had its roots in Reconstruction. The Reconstruction-era Congress, as I note here, sought specifically to protect the vote of freed slaves. The Republican majority in Congress of the late 1860s feared that terrorist tactics and legalized mischief would dissuade African Americans (an important Republican voting bloc) from the franchise. This Congress passed, and the states ratified, the Fifteenth Amendment that constitutionalized the idea of a right to vote free of racial discrimination.
But the Reconstruction Congress’s fears came true in the century that followed. Even with the Fifteenth Amendment, our constitutional structure nonetheless relies heavily on states to define and administer the qualifications for voting. The Jim Crow period was created by a the southern states betraying the Fifteenth Amendment through race-neutral yet nonetheless disempowering tactics like poll taxes and literacy tests that crushed black political power.
Thus, by the time the VRA was passed in 1965 to address these concerns, the democratic legitimacy of the United States was openly questioned. Two Americas existed—a white male America with full civil and political power and a black America where two-thirds of African Americans had been discouraged, dissuaded, and terrorized out of the vote.