It's Still a Struggle

AP Photo/Jacquelyn Martin

President Barack Obama, fourth from left, walks holding hands with Amelia Boynton Robinson, who was beaten during "Bloody Sunday," as they and the first family and others including Representative John Lewis, left of Obama, walk across the Edmund Pettus Bridge in Selma, Alabama, for the 50th anniversary of the landmark event of the civil rights movement, Saturday, March 7, 2015. 

This book review appears in the Fall 2015 issue of The American Prospect magazine. Subscribe here.

Give Us the Ballot: The Modern Struggle for Voting Rights in America
By Ari Berman

384 pp. Farrar, Straus and Giroux $28.00

On March 7, 1965, John Lewis helped lead protesters on the historic march over the Edmund Pettus Bridge in Selma, Alabama. Lewis walked side by side with Hosea Williams until the marchers were set upon by Alabama state troopers. The infamous Bloody Sunday assault left Lewis with a fractured skull, one of dozens of civil-rights protesters injured for demanding the constitutional right to vote. Bloody Sunday was also the precipitating event for the well-chronicled efforts to enact a voting rights act that merited the name.

Exactly 50 years later, Lewis returned to cross the Edmund Pettus Bridge once more. Now marching as a 15-term incumbent congressman from Georgia, Lewis walked hand in hand with Barack Obama. Nothing at that commemoration could have better symbolized the dramatic transformations unleashed by black voting rights than the presence of these two political figures. At a time when registration and election participation rates are essentially identical for blacks and whites, the voting rights struggle had seemingly achieved its goals, well beyond what anyone could have envisioned 50 years ago.

But the gathering on the Edmund Pettus Bridge in 2015 was not a moment of unalloyed celebration. Only two years earlier, the Supreme Court, in a case from neighboring Shelby County, had largely undone the centerpiece of the Voting Rights Act. Moreover, voting rights now face new challenges in the states without the benefit of national legislative and judicial support that the struggle had in the past.

Voting rights triumphant, with John Lewis as the central protagonist, provide the powerful opening narrative for Ari Berman in Give Us the Ballot. As in a classic Greek tragedy, however, the rise presages the fall. And the fall in this telling is the counter-mobilization by conservative zealots, who connived to take power in the Department of Justice and the Supreme Court. That story gives the book its clean moral arc, if at the cost of the more complicated intersection of race and politics.

The most riveting part of the story is also the best known. Berman beautifully recounts the struggles for the elemental right to cast a ballot. He avoids the temptation to see the passage of the act as the central piece of the drama, and instead tells of the town-by-town interventions of civil-rights activists and federal registrars, a process that took roughly a decade. The Voting Rights Act contained a wonderful gambit of suspending literacy tests and all other voting “devices” in the South and allowing their reintroduction only if approved (“precleared”) by the Department of Justice. Suspension provided the opening wedge for the civil-rights movement to gain the franchise.

In the real world of politics, however, the Voting Rights Act proved maddeningly insufficient. In the era when blacks were denied the ballot, their exclusion fully explained the lack of black political representation, the indifference of government, and all the pathologies of cradle-to-grave segregation. Political power required representation, and that required translating votes into winning elections. In a 1969 Mississippi decision properly highlighted by Berman, the Supreme Court acknowledged that, to be effective, the Voting Rights Act had to confront the use of election rules that diluted minority voting power, even when black citizens could vote. At the height of Jim Crow, many Southern jurisdictions not only used restrictive registration procedures to limit black voting, they also adopted at-large or multimember voting districts that over-rewarded voting majorities. For example, if a town were divided 60-40 between white and black voters, they allowed each voter to vote for all five councilmembers. A cohesive white voting bloc could then capture all the council seats, as opposed to breaking up the voters into single-member districts where distinct majorities could form.

The struggle against excessive majoritarian power led to a second generation of voting-rights cases. Section 5 of the act, the preclearance provision ultimately compromised by the Shelby County decision, played little role in those cases, as did the Justice Department. Instead, private litigants were buttressed by the 1982 amendment to Section 2 of the Voting Rights Act, and by the Supreme Court’s 1986 decision in Thornburg v. Gingles, which simplified the proof required for claims that minority voters did not get their just due in the electoral process.

To his great credit, Berman well understands this shift to second-generation cases and the redirection of voting rights toward actual political power. In Berman’s terms, Section 2 became the sword, while Section 5 moved to the background as the shield. The ensuing litigation doomed multimember representation in virtually any community with a minority presence. Redrawn district lines then permitted a broad generation of minority representatives to gain office at every level of government.

 

SO FAR, SO GOOD. What Berman misses, however, is the difficult distributional issues that emerged in the second-generation cases. The early voting-rights cases tended to come from places that had not elected a black to office since the end of Reconstruction. Proof that blacks and whites voted differently (termed “racially polarized voting”) and that blacks were geographically concentrated meant that little judicial imagination was required to see that majority-reinforcing multimember districts were keeping the black minority from gaining elective office.

I litigated quite a few of these cases, which dominated the struggle over voting rights in the 1980s. The choice was usually straightforward: Either perpetuate all-white local councils or permit the first minority representatives. The Voting Rights Act admitted of only one choice.

But what happens when the question becomes more complicated, and instead of a choice between zero black representatives and some, the question is how many? The Supreme Court viewed the Voting Rights Act as protecting against a famine, but not guaranteeing a feast. In Johnson v. DeGrandy, a critical 1994 case from Florida that Berman omits, the Court confronted claims by rival sets of minorities that each was entitled to more than proportional representation. Black and Latino voters already each controlled a number of districts proportionate to the group’s share of the population, but they could have had more. Each group demanded a diminution of the other’s electoral share to further its own representation. In the state legislature, one frustrated black representative had asked whose people had been on the Edmund Pettus Bridge after all. The Court found that there must come a point, according to Justice David Souter, where minorities had to “pull, haul and trade” in politics, as any other interest group must in a pluralist democracy, and voting-rights claims had run their course. 

Once the issue in voting-rights cases becomes the allocation of representatives, the game is zero-sum. As districts get created, there are predictable losers, and some folks (whom I have termed the “filler people”) have to be assigned to districts where they will almost certainly be on the losing side. The history of the second generation of voting-rights law is filled with groups that bristle at being put in the position of predictable losers.

The question of who gets how much leads to the much deeper problem of the intersection of race and politics. The dirty little secret of voting-rights law is that the courts never figured out how to deal with partisan realities. In a 1971 case from Indianapolis, Whitcomb v. Chavis, the Court confronted routine electoral losses by a black community submerged in a multimember state legislative district that included neighboring white suburbs. The exclusion of black representation was pressing, but the Court could not find a way to remedy it. Whites voted Republican and blacks voted Democratic. The Court concluded that in our partisan system someone wins, someone loses, and if black voters chose to vote for the losers, there was no constitutional issue. So strong was the taboo against addressing partisanship directly that the entire law of vote dilution developed exclusively in the one-party Democratic South, or later in one-party Democratic urban areas. Even the statistical test for polarized voting foundered once party was introduced as a confounding variable.

In the old one-party Democratic South, the black vote threatened the local political order, but not the national distribution of power. Only after the South began to realign along the national political axis did the Voting Rights Act become a clear political instrument. The opening gambit came from Republican operatives Lee Atwater and Ben Ginsberg, whose “Operation Ratfuck” offered Republican aid to minority candidates in the creation of packed minority districts in the South, thereby diminishing Democratic electoral prospects. Following the 1990 Census, the Republican Department of Justice used the preclearance authority of Section 5 to demand concentrated black districts (what the Supreme Court struck down as the “max-black” plan). In Texas, for example, the state gained three additional congressional seats after 1990 and created three new majority-minority districts. But it then faced an objection from the Justice Department, which wanted greater minority concentrations to minimize prospective Democratic gains. (Disclosure: I helped represent Texas and later Florida in defending their redistricting plans.)

The greatest omission of Berman’s book is his failure to address Georgia v. Ashcroft, a 2003 Supreme Court case that shows the paradoxes of the late-stage Voting Rights Act. As Georgia trended Republican, none other than John Lewis brokered a deal to lower the black percentages of incumbent legislative districts so as to spread around more Democratic votes. The gambit was that some electoral vulnerability for black incumbents was worth the potential gain of holding on to committee chairs as part of a Democratic majority.

The Bush administration Department of Justice, under John Ashcroft, objected that the Lewis initiative was “retrogressive.” In other words, Republican officials would better protect black citizens than the man whose half-century of struggle epitomizes black voting rights. All four liberal Supreme Court justices sided with Ashcroft, while the conservative majority allowed Lewis and the black politicians of Georgia to play the political card. When Section 5 of the VRA was renewed in 2006, however, the one alteration the Republican Congress made was overturning Georgia v. Ashcroft. Packed minority districts were just what Republicans wanted.

By 2013, when the Supreme Court handed down its decision in Shelby County, Section 5 was largely a secondary issue. The Justice Department had been issuing about five objections a year, and even those were concentrated in fraught, partisan redistricting disputes. As voting-rights cases had evolved, Section 5 lost importance. Occasionally invoked, it was rarely central.

But as a result of partisan politics, a new generation of voting-rights conflicts and cases emerged. Florida 2000 taught that voting rules and voter access matter, sometimes dramatically. Then President Obama won handily in 2008 and 2012 with turnout pushing 60 percent. In 2010, by contrast, with turnout 20 points lower, Republicans ran the table. With the parties more polarized and the undecided center diminished to a couple of network studio audiences on election eve, elections became a game of turning out the faithful and demoralizing the opposition.

Suddenly, nearly identical voter restrictions emerged from the same conservative think tank for introduction in Texas, North Carolina, Kansas, Wisconsin, and Pennsylvania—in short, anywhere that Republicans held control. Voter ID requirements, curtailment of early voting, frequent purges of voter rolls—the game plan was the same regardless of whether the jurisdiction had a significant minority population, was covered under Section 5, or had a history of active discrimination.

Using the instrumentalities of power to keep enemies from voting is deeply wrong; no game can allow the players to manipulate the rules. The sources of the politics of voter exclusion are complicated, but they begin with the unique American institution of partisan control of the electoral process. For Berman, the partisan dimension can be quickly overcome by invoking race and the glorious history of the Voting Rights Act, which keeps the moral arc of the story neat. But the simple tale here obscures the deep partisan stakes in matters of claimed voter fraud and voter suppression.  

The warm reception of Berman’s book is a tribute to his craftsmanship in the telling of a great story. But it also reflects the allure of a simple world of moral absolutes. Placing everything in the context of race and then focusing on an evil, anti-democratic cabal diminishes what we can learn from history. As Columbia law professor Jamal Greene writes, “A Voting Rights Act for the 21st century would recognize that racial discrimination may be our original sin, but it is not our only one.” The precision of the Voting Rights Act in targeting certain practices in a certain place and time proved its great strength and its later constitutional vulnerability. Because it worked so well, the Voting Rights Act as created in 1965 exposed the need for a broader legal commitment to the right to vote, one not limited by geography or even by race.  

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