The Right to Vote: Bending Toward Justice, or Backsliding?

August 25, 2011
Guest Post

This post is part of an ACSblog symposium in honor of the unveiling of the Martin Luther King Jr. National Memorial. The author, Daniel Tokaji, is a Professor of Law at the Ohio State University Moritz College of Law. Professor Tokaji is also a member of the ACS Board of Directors.

Martin Luther King, Jr. wrote that “the arc of the moral universe is long, but it bends toward justice.” But as he understood better than anyone, progress on civil and political rights is neither inevitable nor constant.  It takes hard work, courage, and perseverance.  Otherwise, injustices will fester and grow. The result will be stasis or, even worse, backsliding.

So it was with the right to vote, which African Americans exercised for a brief period after the Civil War only to see it taken away until the 1960s. And so it is now, as many state legislatures move to enact laws that would impose new burdens on this most fundamental right. As we celebrate Dr. King’s legacy, we must also remember that the fight for civil and political rights continues. We cannot simply hope that the arc of justice will bend on its own. It is our responsibility to make it happen.

If the history of voting rights teaches us anything, it is that articulation of a right is one thing, realization of that right quite another – and far more difficult – thing. The Fifteenth Amendment to the U.S. Constitution, ratified in 1870, states in no uncertain terms that “[t]he right of citizens of the United states to vote shall not be denied or abridged ... on account of race, color, or previous condition of servitude.” For a time, this promise was honored. African Americans voted in large numbers throughout the country, including in the states of the former Confederacy. Many African Americans also served in elective office during this period, with over 300 black legislators elected from southern states in 1872.

With the end of Reconstruction, however, southern states adopted a battery of now-infamous devices to keep African Americans from voting. They amended their constitutions to impose new barriers to voting, like the literacy test and poll tax, and adopted primary elections from which African Americans were excluded. Those who even tried to exercise their right to vote were subjected to threats and violence. The ultimate result was the almost total disenfranchisement of African Americans throughout the South, starting in the late 19th Century and persisting for most of the 20th Century.

Although we lawyers like to think of courts as heroes, judges looked the other way during this period of mass disenfranchisement. The Supreme Court refused to strike down state constitutional amendments that impeded voting, even though their clear purpose was to deny the right to vote on account of race in violation of the Fifteenth Amendment. Although the Court did eventually strike down the White Primary, the major impetus to electoral reform came not from the judiciary but from the People.

The Voting Rights Act of 1965 changed the face of the country. It abolished devices like the literacy test and almostly instantly increased African American registration and voting rates throughout the South. This transformative law did not appear out of thin air. It was instead the product of many years of hard work by Dr. King and his allies. The heroes of this movement included now-Congressman John Lewis who was beaten while marching for voting rights in Alabama, and Fannie Lou Hamer, the child of Mississippi sharecroppers who vividly described being beaten for simply for trying to register and become a “first-class citizen[].” Through their lengthy struggle, the right to vote was ultimately realized.

As we look back toward the sacrifices of Dr. King and countless others, it is incumbent upon us to remember that their struggle continues. Just this year, we have seen new efforts across the country to make it more difficult for eligible citizens to vote. Several states have adopted measures that would require voters to have government-issued photo ID, despite the utter lack of evidence that in-person voter impersonation fraud is a serious problem.  These laws will pose a disproportionate burden on people of low income and racial minorities, who are least likely to have the required identification. We have also seen efforts to roll back early voting and to make it more difficult to register new voters. There is no missing the fact that the predominant purpose behind these laws is to make it more difficult for some citizens to participate in our democracy. Yet for the most part, progressives have been passive if not completely silent in the face of these threats.

When it comes to the fundamental right to vote, then, there is a serious question about whether this country will bend toward justice or backslide. We cannot be lulled into believing that progress is inevitable, nor can we wait for the courts to save us. If we do, those seeking regressive changes are sure to prevail.  We must instead learn from the example of Dr. King and his allies. We must speak out against these new burdens on voting, and demand reforms like Election Day Registration that will make it easier for all eligible citizens to participate in our democracy. Making the right to vote a reality is, in the end, our responsibility.