The Voting Rights Act, passed in 1965, is one of the most venerated statutes in American law. Its provisions guaranteed the right to vote and ended the subterfuges used by Jim Crow-era politicians to deny the franchise given to Black Americans by the Fifteenth Amendment. It required, for instance, multiple states famous for voter suppression to seek approval from the federal government before changing election rules. (This provision of the monumental civil rights law was effectively struck down by the Supreme Court in 2013.) The Act outlawed literacy tests, a requirement regularly used to disenfranchise Black citizens.
Several years after the VRA passed, the North Carolina governor, legislature, and state bar worked to revise the state’s constitution. In the late 1960s, the legislature approved seven major amendments on topics from taxes to voting rights that, collectively, rewrote most of the document. It then sent the changes to voters for approval. In the 1970 election, North Carolina residents signed off on each revision, save for one: eliminating the state’s literacy test. Every future attempt to take it out has failed. To this day, Article VI, Section 4 of the North Carolina Constitution requires that voters “be able to read and write any section of the Constitution in English.”
This provision is unenforceable, and so it’s tempting to dismiss it as little more than a pointless artifact. But its very existence is an open wound. “It’s just an insult to the African-American citizens of North Carolina, and to any right-thinking citizens,” said Kelly Alexander Jr., a state representative and former president of the state’s NAACP. He described the text as “along the same vein” as memorials to Confederates. “If a statue is offensive, a provision in the constitution is even more offensive,” he said.
It isn’t just the continued stain of the literacy-test provision that makes it harmful. The durability of Section 4 is echoed by North Carolina’s recent hostility toward voting rights. In 2013, led by a coalition that included Alexander, the state’s House of Representatives unanimously passed a bill to start the process of eliminating the literacy test from the constitution, only to have it die in the Senate. When I asked why the Senate never took it up, Alexander told me that while both chambers are controlled by Republicans, the Senate “is a much more conservative body.” Its leadership, he argued, is not enthusiastic about passing ballot measures that could “energize folks who might vote against their candidates.”
But the Senate’s GOP leadership is enthusiastic about passing measures that would demobilize those folks. Two months after the 2013 literacy test amendment stalled, both the House and the Senate passed legislation that slashed the number of early voting days, eliminated same-day registration, and made photo IDs mandatory to vote. This curtailment of voting rights fell hardest on Black residents. At the time, Black people were 23 percent of N.C.’s population. In 2012, they were 28 percent of its early voters, 33 percent of voters who registered on Election Day, and 34 percent of the population without IDs. A federal appeals court struck the law down, finding that it “target[ed] African Americans with almost surgical precision.” (The Supreme Court declined to review the case.)
In 2017, the N.C. House of Representatives again passed a bill that would begin the process of cutting the literacy test from the constitution. It again died in the Senate. But the state constitution changed in other ways. In 2018, North Carolina residents approved an amendment to Article VI requiring a voter ID law. The legislature quickly passed one. To make voting even harder, it then cut the number of early polling locations.
North Carolina isn’t the only state with a literacy test festering in its constitution. South Carolina, Wyoming, Delaware, and Massachusetts also have constitutions that require, or at least call for, a literacy test. South Carolina’s provision, which says that the General Assembly “may require each person to demonstrate a reasonable ability, except for physical disability, to read and write the English language as a condition to becoming entitled to vote,” was added to the constitution in 1971—well after the Voting Rights Act took effect.
These provisions are legally hollow, but just because they’re present in both red and blue states, the North and the South, Joe Biden’s home as well as Dick Cheney’s, it doesn’t make them any less ugly. They are also reminders that the right to vote is under attack in various forms. Trump, Attorney General William Barr, and many GOP politicians and activists charge that mail-in ballots are rife with fraud. They are suing state officials to stop new efforts to expand voting from home. Jim Crow-era voting restrictions were also justified with claims of voter fraud.
I asked Alexander if he was worried the North Carolina literacy test might one day come back into force, given America’s contemporary fights over the franchise. “It’s possible that could happen,” Alexander told me. He laid out a set of conditions that, while collectively unlikely, are each individually imaginable—“if the Supreme Court goes off the rails if Congress goes completely off the rails, and we re-elect somebody that does not have a sense of the kind of historical progress that the nation has made.”
But Alexander was optimistic we’d avoid this scenario: “Folks of goodwill are fighting awfully hard to try and prevent that from happening.”