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The openMovements series invites leading social scientists to share their research results and perspectives on contemporary social struggles.

Crystal Mason, middle, sitting at the defense table at Tim Curry Justice Center in Fort Worth, Texas, on May 25, 2018. Max Faulkner/Press Association. All rights reserved.

On 27 September 2018, Crystal Mason waved
farewell to her three children and surrendered to authorities in Fort Worth,
Texas. She entered a federal prison, where she would begin a five-year
sentence. Her crime? Attempting to vote in the 2016 US presidential election.

Mason is one of two people –­ both women of
colour – convicted of voting illegally in the city of Fort Worth within the
past year. Her case has become a symbol of escalating voter suppression efforts
enacted by local and state governments since 2013. Mason’s lawyer, Alison
Grinter, emphasized
that her client’s case was not unique: “Make no mistake: this is a clarion call
to our over-policed and over-prosecuted communities of colour. You are not
welcome in the voting booth, and any step out of line will be punished to the
fullest extent of the law.” “Make no mistake:…
You are not welcome in the voting booth, and any step out of line will be
punished to the fullest extent of the law.”

Grinter names voter suppression as one
component of the state’s wide-ranging efforts to prevent people of colour from claiming
their rights as citizens. Those efforts, in turn, stem from the state’s fear
that people of colour would ‘step out of line’, rejecting the authority of a
system that relegates them to second-class status. With this in mind, Grinter’s
assessment would not have been out of place in 1963, when Hartman Turnbow, the
first African-American to register to vote in Mississippi, was arrested after
his house was firebombed by members of the Ku Klux Klan.

The attempt by African-Americans to secure
suffrage, and to lay claim to full citizenship, is a crucial component of the
long civil rights movement. In turn, the recent acceleration of voter
suppression – fuelled by public fear, sanctioned by the judiciary, and
supported by policing – is the latest manifestation of a centuries-long, distinctly
American ideology of white supremacy.

Jim Crow and voter suppression

The right to vote has been bound up with claiming
full citizenship since 1870, when the Fifteenth Amendment extended the whites-only
franchise to black men. This was the capstone of the three Reconstruction-era
Amendments, which also abolished slavery and granted US citizenship to formerly
enslaved men and women. The franchise transformed citizenship from an abstract
status into a substantive claim to rights.

During the Reconstruction years, the ballot
box proved an effective tool for promoting the rights of African-Americans: black
communities established branches of the Union League to organise voter
registration drives, debate their most pressing issues, and to nominate
candidates for elected office. Black women, officially barred from the franchise,
organised through the Woman’s Club movement, which mobilised for local social
and political reforms and supported candidates for national office.

Within four years of the Fifteenth Amendment’s
ratification, fourteen black men were elected to the House of Representatives,
and two to the Senate. The effectiveness of the franchise, in turn, threatened
white hegemony, and has led white supremacists to target black political power
ever since.

The First Vote. Caption: An 1867 cover of Harper’s Weekly depicted African-American men voting for the first time. Some rights reserved. The end of federal support for Reconstruction in
1877 ushered in the Jim Crow era, wherein southern states waged a relentless
campaign of racial terror against empowered black citizens. From the outset,
disenfranchising black citizens was a priority: the Black Codes enforced severe
penalties for minor ‘crimes’, such as vagrancy, and permanently barred
convicted felons from the vote. As these tactics spread, those who imposed them
became increasingly brazen about their purpose: in 1884, the Alabama Supreme
Court upheld
felon disenfranchisement as an effective means to “preserve the purity of the
ballot box”. From the outset, disenfranchising
black citizens was a priority.

With the entrenchment of segregation in the
late nineteenth century, felon disenfranchisement, combined with poll taxes, literacy
tests, and grandfather clauses, effectively disenfranchised virtually all
African-Americans in Southern states.

The absence of black political power enabled
political candidates to exploit white fear for votes, and freed state and local
governments to extract resources from black communities without political
ramifications. Voter suppression proved an effective tool for entrenching the
white supremacist racial order.

Consequently, the Civil Rights Movement that
began anew in the 1950s increasingly honed in on the franchise as the greatest
hope for black empowerment. Many of the movement’s most notorious events – the 1964
murder of three Freedom Riders near Philadelphia, Mississippi, and the brutal 1965
police attack on peaceful marchers near Selma, Alabama – were clashes between black
citizens attempting to claim the franchise and white supremacists maintaining
the racial order.

The Voting Rights Act

In 1965, Congress passed the Voting Rights
Act, hailed as the single most important legislative achievement of the Civil
Rights Movement. Echoing the Reconstruction-era approach, nine states and numerous
counties and municipalities with a longstanding history of voter suppression would
be required to submit any changes to their election laws to the federal
government for preclearance.

The effects were immediate and wide-reaching: whereas
only seven percent of eligible African-Americans in Mississippi were registered
to vote in 1964, the number had jumped
to sixty-seven percent by 1969. Ostensibly colourblind policies, including laws
that would require citizens to present state-issued photo identification before
voting, were blocked because they would disproportionately prevent
African-Americans from voting.

Congress amended and reauthorized the VRA in 1970,
1975, 1982, 1992, and 2006 with decisive, bipartisan majorities. Yet white
supremacy could not simply be legislated away. White southerners resented federal
intervention in local election laws, claiming that they were being targeted
unfairly for policies that had been revoked a half century earlier. A
succession of southern municipalities unsuccessfully challenged the VRA in
court. In the early twenty-first century, the drumbeat of voter suppression grew
louder.

VRA. Caption: Martin Luther King, Jr. and other Civil Rights leaders meet Lyndon B. Johnson at the signing of the Voting Rights Act in 1965. Some rights reserved.In April 2010, Shelby County in Alabama filed
suit in district court, claiming that Section 5 of the VRA – which established
the federal preclearance requirement – was unconstitutional. The district court
of Washington, DC ruled against Shelby County in September 2011, and the county
appealed. In May 2012, the Court of Appeals in Washington, DC upheld the lower
court’s decision. Shelby County then appealed to the U.S. Supreme Court, which
agreed to take the case in November 2012. The case was closely watched by civil
rights advocates, as well as states and municipalities in South Carolina,
Georgia, and Texas that had attempted unsuccessfully to challenge the VRA in
the past.

On 25 June 2013, the Supreme Court issued a
5-4 ruling
on Shelby County v. Holder in favour of the plaintiff. Section 4(b) of
the VRA, which had established the formula for federal preclearance, was deemed
unconstitutional. Although the court upheld Section 5, which established
preclearance as a requirement, the latter section was rendered meaningless
without naming which municipalities were covered.

The majority ruling, delivered by Chief
Justice John Roberts, trumpeted the nation’s progress since the Civil Rights
Movement: “Our country has changed. While any racial discrimination in voting
is too much, Congress must ensure that the legislation it passes to remedy that
problem speaks to current conditions.” Justice Ruth Bader Ginsburg, dissenting,
affirmed Roberts’ statement that racist voter suppression had been rampant when
the law was passed in 1965. She disagreed vehemently, however, with Roberts’
celebration of racial progress, stating that “throwing out preclearance when it
has worked and is continuing to work to stop discriminatory changes is like throwing
away your umbrella in a rainstorm because you are not getting wet.” For
Ginsburg, the state could not be neutral in matters of race. In a white
supremacist society, failing to actively support black political power was
equivalent to endorsing voter suppression.

In the wake of the Supreme Court’s ruling, Congressman
John Lewis, a veteran of the Student Nonviolent Coordinating Committee, decried
the majority’s failure to learn from a century of social movements and
repression. The tremendous gains of the Reconstruction era, he noted, had been
reversed in only a few years. The Supreme Court now risked repeating history by
reversing the gains of the Civil Rights movement.

Indeed, the reaction to Shelby County v.
Holder was immediate: the state of Texas announced that its voter ID requirement,
which had been blocked as discriminatory, would go into effect before the next
election. North Carolina, likewise, introduced a range of new measures,
including a voter ID requirement, a shortened early voting period, a
requirement that voters only cast their ballot in their assigned precinct, and the
elimination of same-day registration and voting – eliminating measures that had
increased voter turnout among African-Americans. The state of Alabama likewise
introduced a voter ID requirement – and then shuttered offices in predominantly
black counties where voters could obtain the required ID cards. By Election Day
2016, there were 868 fewer
poll places available to voters than there had been three years earlier.

Felon disenfranchisement, which waned in the
1960s and ‘70s, has also resurged in recent years. While laws vary from state
to state, only two states currently allow prisoners to vote. Three disenfranchise
convicted felons for life. Most others ban prisoners and parolees from voting. In
Texas, Crystal Mason was disenfranchised because she remained on probation
after serving her prison sentence. Like the poll taxes and literacy tests that preceded
them, laws that disenfranchise convicted felons are colourblind in their wording,
but deeply racialised in their enforcement: in Alabama, felon
disenfranchisement affects fifteen percent of the voting-age black public, compared
to less than five percent of the voting-age white public.

Even more dramatically, in Florida, the
lifetime ban on voting as a convicted felon has disenfranchised twenty percent of
voting-age African-Americans. Nearly one hundred fifty years after the
ratification of the Fifteenth Amendment, felon disenfranchisement has proven an
effective tool to suppress black political power.

Framing the franchise

The right to vote is, understandably, framed
by opponents of voter suppression as an essential right of free citizens. Advocates
have often taken this further, claiming that voting is the patriotic duty of
citizens, and that protecting access to the ballot box enables
African-Americans to fulfil this obligation. Indeed, this was how Crystal Mason
explained her decision to vote: Mason’s mother had persuaded her that it was
her responsibility as a US citizen – and a black woman – to vote in the 2016 presidential
election. Other advocates have emphasized that many of the people barred from
voting because of a felony conviction are military veterans whose patriotism extends to a willingness to
‘die for their country’. According to these arguments, black voters have proven
their loyalty to the state, and protecting black citizens’ right to vote strengthens
the state.

Occupy march. Caption: Supporters of Occupy Wall Street joined an NAACP march for voting rights in 2011. Photo by Michael Fleshman. Some rights reserved.Yet voter suppression is often framed in
strikingly similar terms: supporters proclaim the importance of democracy,
their desire to increase voter turnout, and the franchise as the inalienable right
of patriotic citizens. This was evident when lawmakers in North Carolina
proposed a new voter ID law in June 2018: House Speaker Tim Moore explained,
using terms that few would disagree with, that “protecting our democracy should
be one of lawmakers’ highest priorities.” It was voter fraud – not voter
suppression – that posed the greater threat to democracy. It was voter fraud – not voter suppression – that posed
the greater threat to democracy.

Similarly, state representative David Lewis explained
that the voter ID law would “ensure
everyone who is eligible to vote is able to cast a secure ballot. We want
extraordinary voter turnout.” Increasingly, the federal government is invoking
the same arguments as state and local officials: after claiming
that “millions of people” had “voted illegally” in the 2016 election, Donald
Trump established a Presidential Advisory Commission on Election Integrity. The
Commission was dissolved six months later, after widespread backlash. Yet Trump
has continued
to claim that “illegal voting” is particularly rampant in states with large
populations of (implicitly non-white) undocumented migrants – thereby associating
voter suppression with militarised border control, and implying that both are
essential to the integrity of democracy.

No neutral
state

Both supporters and opponents of voter suppression
appeal to the state in support of their arguments. Indeed, the history of the
franchise demonstrates that when the state actively protects the franchise for black
voters, this has immediate and wide-reaching ramifications for black political
and social power.

Some recent developments are encouraging: a
federal appeals court, for example, blocked
North Carolina’s voter ID law as deliberately discriminatory towards African-Americans
(though voters may instate a new ID law in a November referendum). Yet the
state has enforced white supremacy for far longer than it has promoted racial
equality: from 1790, when the Naturalisation Act offered the possibility of citizenship
to all “free white persons”, until the passage of the Reconstruction Amendments
eighty years later, African-Americans were actively excluded from US
citizenship.

The subsequent gains of African-Americans
during the Reconstruction era were forcefully overturned only a few years
later, to be followed by nearly a century of Jim Crow. Fifty years after the
passage of the VRA, the Trump administration, with the acquiescence of the Supreme
Court, seems intent on mobilising the state anew to suppress black political
power and entrench white supremacy. As midterm
elections approach, charges of voter suppression are proliferating.

As midterm elections approach, charges of
voter suppression are proliferating: in Georgia,
the campaign of Stacey Abrams (who, if elected, would be the first black woman
governor of any state) charges that her opponent, Brian Kemp (who also happens
to be overseeing the election as Secretary of State) has disenfranchised 50,000
black voters. In Ohio,
up to 2.2 million voters may have been purged from rolls because they failed to
vote in the two previous elections and respond to a postcard – a law that the
Supreme Court upheld in June. And in Florida,
Governor Rick Scott (who is running for Senate in November) has slowed to a
trickle the process of restoring voting rights to convicted felons.

Beyond the state, bringing democracy alive

The long view of US history suggests that the
state has, at best, an ambivalent record on civil rights. In the present
political moment, the state is more likely to suppress than uphold hard-fought social
and political rights for African-Americans. Consequently, the future of the
civil rights movement must look beyond the vote, which is bound up with, and
dependent upon, the state. Doing so will draw from a long tradition of
resistance.

In 2005, following Bush nominee Samuel Alito’s
confirmation to the Supreme Court, historian and activist Howard Zinn
entreated citizens not to “despair”. Instead, he wrote, “Knowing the nature of the political and
judicial system of this country, its inherent bias against the poor, against
people of colour, against dissidents, we cannot become dependent on the courts,
or on our political leadership. Our culture – the media, the educational system
– tries to crowd out of our political consciousness everything except who will
be elected President and who will be on the Supreme Court, as if these are the
most important decisions we make. They are not. They deflect us from the most
important job citizens have, which is to bring democracy alive by organizing,
protesting, engaging in acts of civil disobedience that shake up the system.”

For Zinn, democracy transcends, and often
defies, the state. It also defies borders: the long civil rights movement is indebted
to Gandhian nonviolence, anti-colonial resistance, and ‘coloured solidarity’ – and,
more recently, the global reach of the Movement for Black Lives. The social and
political rights of those whose citizenship is contested will not be guaranteed
by appeals to loyalty and patriotism, but by social movements that are not bound
by the state.

How to cite:
Tinsley M. (2018) Civil rights and voter suppression in the US, Open Democracy / ISA RC-47: Open Movements, 17 October. https://opendemocracy.net/meghan-tinsley/civil-rights-and-voter-suppression-in-us