Color It Wrong

If the mainstream media can be believed, the nation witnessed a hotly contested but generally acceptable election last November 2. George W. Bush won the White House in balloting that pulled our democracy back from the brink of illegitimacy and global embarrassment. Even electionline Weekly, the must-read journal for election-reform insiders, pronounced it abundantly clear that Election Day 2004 was a success.

But was that the full story of the 2004 election? From the perspective of the individual voter -- especially the voter of color -- our collective experiment in democracy last November was no resounding success. Across the nation, the right to freely cast a ballot without harassment or intimidation, and to have that vote properly counted, was sorely tested. For many African American, Asian American, Native American, and Latino voters, the 2004 election was another skirmish in a centuries-old struggle for equality and justice.

The days of lynchings, poll taxes, and white primaries have passed, yet the votes of citizens of color are stealthily manipulated and suppressed. As my fellow contributors detail in these pages, today's tactics are subtler. Savvy party operatives launch organized misinformation campaigns to suppress the vote. Aggressive teams of partisans stake out minority voting precincts, challenge the eligibility of would-be voters, harass harried poll workers, and sow confusion. People walk away without casting a ballot. Election authorities send too few voting machines and polling staff to inner-city wards, forcing many residents there to endure hours-long waits at the polls -- or leave. Meanwhile, voting in suburban districts proceeds smoothly.

For some, the 2004 election elicits strong feelings of déjà vu. Many of the dirty tricks and vote-suppression tactics directed at voters of color this time mirrored those witnessed in the last presidential election.

In an analysis of balloting problems in Florida in 2000, the U.S. Commission on Civil Rights found a widespread disenfranchisement and denial of voting rights. In particular, the commission reported, Disenfranchisement of Florida's voters fell most harshly on the shoulders of black voters & [who] were nearly 10 times more likely than white voters to have their ballots rejected.

A 2001 commission formed by the House Democratic Caucus found serious problems, too. Reported incidents included unauthorized vehicle checkpoints set up by the Florida Highway Patrol near heavily African American polling places on election day, black voters being directed to the wrong polling places, and others being told they could not vote if they had traffic tickets or criminal offenses. Individuals dressed in Immigration and Naturalization Service uniforms to scare off Latino voters were sighted in south Texas.

Incidents like these fit into a long and bitter battle to extend the vote. And while the arc of history may bend toward justice, it tends to wobble back and forth along the way.

More than a million former slaves were enfranchised by the Reconstruction Act of 1867 and the 14th and 15th Amendments, yet these advances were short-lived. Within a few years, white elites gamed the system through gerrymandering, precinct reorganization, and polling-place closures. They reduced the franchise through poll taxes, literacy and residency tests, and racist constitutional provisions. And they unleashed white terror. Black turnout in the South fell to single digits, while in the North, proposals for enfranchising African Americans were defeated by more than 15 states and territories by 1870, most in public referenda.

Of course, blacks weren't alone. Over decades, Chinese immigrants were denied the right to vote in several western states, while Mexican Americans were disenfranchised by law in Texas and California. The struggle for the right to vote is perhaps most ironic for America's Indians. These first Americans were the last to be recognized as U.S. citizens -- in 1924, when Congress finally granted them citizenship. Still, states with large Native American populations used various rationales to continue disenfranchising Indians. Only in 1957, when Utah repealed its statute interpreting Indians as residents of reservations and not of the state, were Native Americans fully enfranchised.

The greatest milestone in the struggle for the vote was passage in 1965 of the Voting Rights Act (VRA). After enduring hundreds of years of official suppression and violence, America's minorities secured rights that had been promised, briefly enjoyed, and then negated. Black registration in Mississippi jumped from below 10 percent before the VRA to almost 60 percent by 1968, and from 24 percent to 57 percent in Alabama. More than 60 percent of all blacks across the country were registered to vote within a few years of the law's enactment.

The act also provided legal advocates a means for challenging racial gerrymandering and other devices to dilute or deny the vote. Just as importantly, it has been used as a means for courts or the federal government to intervene directly in the local administration of elections. It was used during the 1960s and early 1970s to empower the U.S. Department of Justice to challenge intransigent districts in the South that were flouting the act's new protections. The Justice Department literally sent in federal examiners to register black voters and federal election observers to ensure that the law's promise was being fulfilled.

More recently, the law was used in Berks County, Pennsylvania, in 2003, in a suit brought by the Justice Department on behalf of Latino voters. The Justice Department charged that local election officials had employed poll workers who were hostile toward Latinos, prevented or discouraged them from voting, and imposed on them tougher identification requirements, all in violation of the VRA. Eventually, Berks County agreed to the appointment of federal examiners to oversee balloting, county appointment of bilingual poll officials, and transmittal of the county voter-registration list to the Justice Department.

But each progressive enactment in U.S. history has been met with resistance. In recent years, remedial redistricting plans have come under attack, courts have retreated, and the federal government has pulled back from strict enforcement of the law.

The Ashcroft Justice Department is a case in point. Since President Bush's first attorney general took office, federal enforcement of civil-rights laws like the VRA has declined precipitously. According to the Transactional Records Access Clearinghouse at Syracuse University, the Justice Department filed 84 criminal charges alleging civil-rights violations in 2003, down from 159 in 1999. Justice Department challenges of racially discriminatory voting cases have virtually halted. And the center of gravity in the front office at the Justice Department has shifted away from voter access to voter integrity -- a pursuit of vote fraud that has historically resulted in new barriers to the ballot and the suppression of minority votes.

With broad authority under the VRA to combat efforts to intimidate, threaten, or coerce any person for voting or attempting to vote, the Justice Department could have mounted an aggressive assault on the kinds of abuses we saw in 2004 and 2000 alike. It was certainly clear before November that efforts were afoot to depress the vote in communities of color. Florida's secretary of state was doggedly pursuing a seriously flawed felon purge, law-enforcement officials were intimidating elderly African American voters in Orlando, and GOP operatives in several states were hatching challenges to urban voters. Voter harassment on Native American reservations and noncompliance with the bilingual balloting mandates of the VRA foreshadowed additional problems.

Where the Ashcroft Justice Department did take a stand, it weighed in against voters. In legal briefs against restrictive provisional balloting in Ohio, Michigan, and Florida, the Justice Department argued that individual voters could not seek a remedy in the courts. In this instance, only the Justice Department could sue -- a step that it had declined to take. J. Gerald Hebert, a 21-year veteran and former chief of the department's voting-rights section, told the Los Angeles Times in October, This is the first time in history that the Justice Department has gone to court to side against voters who are trying to enforce their right to vote.

The Justice Department could have undertaken an aggressive pre-election outreach campaign to state and local election officials seeking to ensure full voting access and compliance with the VRA. With thousands of federal attorneys at his disposal, the attorney general could have mounted an extensive field campaign and rapid response to election-day irregularities. Instead, Washington ceded responsibility for protecting the vote to the volunteer election-protection projects, like the one coordinated by the Lawyers' Committee for Civil Rights, the People for the American Way Foundation, and numerous allied organizations. Together, they deployed 25,000 volunteers to field 125,000 calls to a nationwide hotline and respond to thousands of election-day problems.

* * *

The avoidance of a protracted vote count or constitutional meltdown notwithstanding, the 2004 election failed many Americans. Our system for registering voters and counting ballots is understaffed, overly partisan, and frequently incompetent. But the flaws run deeper. As reflected in hundreds of cases of voter intimidation and vote suppression, highly organized political operatives and their patrons work diligently to thwart full enfranchisement. Outright racial animus and the willful manipulation of minority voting rights for partisan ends colluded to deny the vote to many.

These efforts must be resisted with the same fervor that ended the poll taxes and literacy tests of an earlier era. Policy-makers of conscience, working closely with community activists and legal advocates, must find courage to take up the fight. In addition to the critical reforms detailed by Miles S. Rapoport and others in this report, some key steps could target special concerns over civil rights. To begin with:

President Bush and the new attorney general must install a new regime at the Department of Justice. The Justice Department must recommit itself to ensuring equal and open access to voting. The nation's law-enforcement authorities must vigorously pursue and prosecute lawbreakers who undermine the rights conferred by the Constitution and statutes.

Congress and the states must enact stiffer penalties for voter intimidation and vote suppression. Twenty years ago, the Republican National Committee entered into a consent decree in federal court in New Jersey to stop a systematic campaign of vote challenging. Yet the very same tactics highlighted in that court case were repeated in Ohio, Florida, and elsewhere in 2004. Penalties against election-day dirty tricks are weak and ineffective. They must be strengthened.

Our political leaders must again elevate the long-term struggle for full enfranchisement to the top of the nation's agenda. The enforcement provisions of the VRA, which are set to expire in 2007, must be renewed and strengthened. Felon-disenfranchisement laws and practices must be disavowed, so that America no longer stands out among the world's democracies in conditioning rights of citizenship for those who run afoul of the law. And the centuries-old debate over voting as a right or a privilege must be put to rest. A 28th Amendment, proposed by Jesse Jackson Jr. in Congress, would establish a constitutional right to vote. It must be embraced and adopted.

Millions of Americans volunteered time, energy, and resources in 2004 in a protracted campaign to energize and mobilize the vote. And they succeeded: Turnout rose sharply. But hard to reach, infrequent voters -- for whom the system has delivered the least and whose political participation is most tenuous -- will be unapproachable next time around if the injustices of the last two presidential elections are not addressed. Political leaders at all levels of government must work closely with community activists and residents to ensure free access to the vote. If this is achieved, America can indeed boast success.

Steven Carbó is a public-policy advocate and attorney who has worked to expand voting rights for communities of color. He directs the Democracy Program at Demos.

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