Private: The Voting Rights Act and Partisanship

by William R. Yeomans, Fellow in Law and Government at American University Washington College of Law and a former acting Assistant Attorney General for Civil Rights

*This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

Access to the ballot should not be a partisan issue. Republicans, however, have teed up ballot access as a defining partisan issue. Just as this emphasis placed renewed pressure on our laws against racial discrimination, five justices fulfilled a longstanding conservative goal by disabling the requirement that states and localities with extensive histories of racial discrimination seek approval of voting changes from the federal government. Shelby County v. Holder lifted the preclearance requirement, unleashing jurisdictions to adopt photo ID laws, restrictive registration measures, shortened voting periods, and other measures that disproportionately restrict the opportunities for minority voters to cast ballots. Jurisdictions have concocted thoroughly debunked allegations of in-person voter fraud and unconvincing administrative cost justifications in support of these restrictions. As a last defense, they have sometimes conceded the partial truth – that these restrictions are designed to discourage Democrats from voting, as if that partisan purpose excuses their racial impact.

How did we reach this point where electoral partisanship is so closely entangled with race? After all, the history of our nation is one of struggle to expand the franchise to incorporate once excluded segments of the electorate. We gradually and often painfully shed voting restrictions on non-property owners, the illiterate, women, and 18-to-20-year-olds. Twice we sought to guarantee the right to vote without regard to race – first through the Fifteenth Amendment and nearly a century later through the Voting Rights Act. The undeniable message of this progression is that the country gradually embraced the notion that every citizen of sufficient age, sound mind and (in too many states) non-felonious criminal record should be permitted to vote.

Yet, partisan consequences already burdened the mind of President Lyndon Johnson when he signed the Voting Rights Act in 1965, noting that he feared his signature would hand over the South to the Republican Party. Indeed, as Democrats nationally became the party of civil rights, the once Democratic leaders of segregated southern states turned to the Republican Party, whose presidential nominee in 1964, Barry Goldwater, had opposed the 1964 Civil Rights Act. The Republican Party, led by Richard Nixon in 1968, saw political advantage in catering through its southern strategy to the backlash against the civil rights movement, Brown v. Bd. of Education and its progeny, and the civil rights laws of the 1960s.

Presidential candidate Ronald Reagan exploited white resentment of civil rights progress. He extolled states’ rights in his first speech as the Republican nominee in 1980 in Philadelphia, Mississippi―made infamous by the slaying of three civil rights workers in 1964. His administration resisted the 1982 strengthening of section 2 of the Voting Rights Act (the young Department of Justice lawyer John Roberts pushed hard against the legislation), cut back on enforcement of civil rights laws, opposed affirmative action, and appointed judges committed to narrowing remedies for racial discrimination―including Justices Scalia and Kennedy, who voted in Shelby County to gut the VRA. They were joined by the majority opinion’s author, Chief Justice Roberts, and Justices Thomas and Alito, all of whom came to legal prominence in the Reagan administration, in no small measure because of their restrictive views of civil rights.

The George W. Bush administration, as part of its unlawful politicization of the Civil Rights Division, hired Republican election lawyers to enforce the VRA. They turned the Division dramatically away from enforcement of the law to protect African Americans and filed the first section 2 lawsuit on behalf of white voters against African Americans in Mississippi. Although President Bush signed the 2006 extension of the special provisions of the VRA, the Bush-era Department of Justice lawyers joined in an amicus brief in Shelby County, arguing that the VRA – the law they had been hired to enforce – was unconstitutional.

Meanwhile, lawyers sympathetic to Republican interests have conducted a focused legal campaign to undermine the VRA by challenging the creation of majority-minority districts and, eventually, the requirement of preclearance itself. They lacked sufficient political support to weaken the law democratically but found fertile ground in a Supreme Court dominated by a conservative majority.

For the past 30 years, the south has trended overwhelmingly Republican. Not surprisingly, African Americans in those states vote overwhelmingly Democratic, in opposition to a Republican agenda built on opposition to African American gains. Republican legislators know that the adoption of voting laws that make it harder for poor people to vote will disproportionately burden African Americans, which means a proportional decline in Democratic votes.

This toxic combination of race, voting, and partisan advantage explains the lack of Republican interest in supporting legislation to fill the preclearance gap created by Shelby County. Not a single Republican senator has signed on to support legislation introduced in the Senate and only a handful of House Republicans are supporters. Too many Republicans see partisan advantage in a weakened Voting Rights Act.

Following the Republican Party’s loss in the presidential election in 2012, the Party establishment issued a soul searching report, recognizing that Republicans had alienated African American and Latino voters and urging improved outreach. The message appears to have fallen on deaf ears as the Party’s leading figures continue to rail against immigrants, oppose the Affordable Care Act and its extension of Medicaid, and support restrictive voting laws while opposing revitalization of the Voting Rights Act. At this point, it is hard to tell whether the party thinks it can squeeze out one more national victory before the inevitability of demography requires change, or whether the Party is running on instinct and reverting to its southern strategy roots.

Regardless, access to the ballot and, as a result, the Voting Rights Act have become increasingly partisan issues to our collective disadvantage.

Civil rights, Democracy and Elections, Racial Justice, Voting Rights