Why Democrats Can’t Wait on Voting Rights

Delaying or giving away too much will hurt politically and morally.

On June 6, 1960, Bibb County Superior Judge Oscar L. Long greeted a new grand jury in his courtroom in Macon, Georgia. The judge had also invited local reporters, who received a printed copy of the instruction he was about to give to the jurors. Judge Long—and the two other judges of the Macon Circuit—had something important to say, and wanted it heard far and wide.

Black people in Bibb County were voting. Not in proportion to their numbers, mind you—that would have been unthinkable in 1960. Bibb County’s population was about one-third Black, while the Black vote accounted for only about 15 percent of the county’s total. But there were enough Black voters to sway a close election. (In Bibb County, “Negro” and white voters used separate ballot boxes and their votes were totaled in separate columns.)

The three judges had jointly decided that the new grand jury (Georgia grand juries, selected by clerks as “upright and intelligent” citizens, were always overwhelmingly white), was to investigate the “inane and inexplicable pattern of Negro bloc voting.” Like political figures all over the segregated South, Long found it inexplicable that Black voters would band together into political organizations and vote together for candidates they chose.

The investigation, Long explained, was sparked by “persistent rumors and accusations concerning the methods used in the solicitation of the Negro vote and the alleged bartering of the bloc vote.” He asked the jurors to investigate this suspicious activity: “Was the Negro vote delivered in bloc to any candidate or candidates . . .What money was involved, if any?…What promises did the candidate make, if any, in order to obtain the bloc vote?” And Long added that the grand jurors’ job went beyond mere criminal charges; whether they indicted anyone or not, they should, Long said, also “bring to light those practices which, while not technically in violation of any law, are yet so immoral or corrupt as to be destructive of the purposes of our system of elections.”

Even though the Civil Rights Act and the Voting Rights Act still lay in the future, Long was right to be nervous; there were rumblings of change in Bibb County. The state’s venerable “county unit” system (akin to the national electoral college) was under challenge. County voters would, a few years later, elect their first Republican legislators. Sheriff James I. Wood, like Judge Long, was an elected official. The details of Bibb County politics are hazy, but he seems to have come from a different political faction, and indeed may have benefited from the Black vote; at any rate, he felt less unfriendly toward Black voting than the Superior Court judges did. The day after Long delivered his instructions, Wood issued an open letter to the grand jury protesting the instruction. “This is the type of political-legal action which brings down ridicule and demands for civil right legislation against the South,” he warned. “Negro people will find little difference in principle between attempted intimidation of their people by judicial summons and inquiry and attempted intimidation by physical demonstration such as used by the K.K.K.” He added that if the judges wanted an investigation of “bloc voting,” they should investigate “that gigantic ‘bloc vote’ which is controlled by a handful of men known as the Bibb County Democratic Executive Committee.”

The Superior Court (which had issued the instruction) promptly slapped Wood with three counts of contempt and interference with a grand jury, each carrying a sentence of 20 days in jail and a $600 fine. The U.S. Supreme Court overturned the contempt convictions. In his majority opinion, Chief Justice Earl Warren wrote that Sheriff Wood was simply engaging in “the types of activity envisioned by the Founders in presenting the First Amendment for ratification.”

Wood v. Georgia is a very minor First Amendment precedent; but Judge Long’s instruction to the grand jury is worth careful study. It elegantly states a persistent racist Southern belief: When Black people vote, there is probably vote fraud; when Black-supported candidates win, there is definitely corruption. If not an exchange of money, then “influence” on Black voters, who (unlike whites) don’t really think for themselves. Are the “rumors and accusations” true? Maybe and maybe not, but at any rate white people don’t … well, gosh darn it, they just don’t feel good about it. And when white people don’t feel good, that’s a crisis.

The U.S. has just held an election that every objective authority—executive, legislative, or judicial—has found to be (in the words of one Trump appointee) “the most secure in American history.” Millions more voters than expected—Republicans and Democrats, Biden and Trump voters alike—defied the dangers of the pandemic and the troubles of the Post Office to cast their votes either in person or by mail. State officials—Republicans and Democrats—carefully counted those votes, then conducted recounts that revealed few, if any, errors in the count. Federal and state judges—Republicans and Democrats—examined every shred of evidence and found no fraud anywhere. For all its flaws, in other words, the 2020 election was a triumph of democracy.

Now powerful forces want to make sure that never happens again.

In Georgia, the Republican legislative majority is advancing bills to tighten ID requirements, limit absentee ballots to travelers, the disabled, and those over 75 (making it “a more respectable form of voting absentee,” the sponsor explained), require photocopies of voters’ ID for mail ballots, do away with ballot drop boxes, ban “mobile precincts” such as those used by Fulton County in 2020, and sharply limit early voting on Sundays (when many Black churches bring members to the polls). Meanwhile Republican Secretary of State Brad Raffensperger has announced a new interpretation of Georgia law: it is now a criminal offense to provide free food and water to voters in line at the polls.

It is, however, not just in Georgia that the vote-restriction frenzy is underway. The Brennan Center so far has tracked more than 250 current legislative proposals in 43 states that make voting harder. That the bad feeling among some white voters has spread across the country is not surprising. To understand why, we have to take a quick look at the history of voting in America.

The history of the right to vote in the U.S. is not one of majestic, unbroken progress; it actually consists of advances followed by fierce counterattack; periods of expansion followed each time by sharp contractions engineered by worried elites. During Reconstruction, Black Southerners gained political power in the former Confederate states; once federal protection for voting was withdrawn, the white South adopted an explicit policy of “disfranchisement,” designed to do away with Black voting altogether.

They called this process “redemption.” The North did not protest. As documented in Alexander Keyssar’s masterful 2009 study, The Right to Vote: The Contested History of Democracy in the United States, Northern leaders now led a redemption of their own. Their target was immigrant voters in the growing industrial cities in the North and Midwest. As Keyssar explains, “Respectable middle-class and upper-class citizens found it easy to believe that fraud was rampant among the Irish or among new immigrant workers precisely because they viewed such men as untrustworthy, ignorant, incapable of appropriate democratic behavior, and not a little threatening.”

Thus was born a wave of Northern vote-suppression measures, including the Australian ballot (meaning that voters would not bring in the pre-printed party ballot many of them were used to relying on, and instead had to read and mark the ballots themselves, which many, semi-literate or new to English, found forbidding), restrictive voter registration rules, a switch from single-member to at-large districts, and a ban on “fusion” tickets that allowed third parties to gain influence in close races. During the 1920s, participation in presidential elections fell nationwide by a full 25 percent. In the South, the fall was more precipitous (only 20 percent of the eligible were voting by the 1920s). But the effect was sharp in the Northern cities too. Keyssar quotes one Pittsburgh official as rejoicing that by 1907, total registration there had fallen by half.

North and South, the vote restrictionists believed they were safeguarding “real” democracy, and the votes of “real” Americans, from fraud—defined not as ballot-box stuffing but as voting by the wrong kind of people.

Flash forward to 2020, when Donald Trump told his supporters that the election had been stolen, that the vote totals were faked. Where did this crime occur? Well, just where a vote restrictionist would expect—large cities inhabited by Black and immigrant voters. Over and over the nation heard tales of boxes of ballots, of rigged voting machines, of vote totals mysteriously changing in the dead of night. Court after court threw these lies out; but Trump and his courtiers repeated them over and over. Trump himself said that “Democrat-run cities, like Detroit and Philadelphia, two of the most politically corrupt places in America, cannot be responsible for deciding the outcome of this race.” Rudy Giuliani told the nation that there had been suspicious activities in “ten different crooked Democratic cities.” Monica Palmer, the Republican chair of the Wayne County Board of Canvassers, helpfully offered to break a standoff about the 2020 election returns by suggesting that the board certify all the county vote totals—except the ones from Detroit. (She later agreed to certification of all the county’s returns.)  As Michigan Attorney General Dana Nessel, a Democrat, said a few days after the election, the Trump message was “Black people are corrupt, Black people are incompetent and Black people can’t be trusted.”

And remember that, evidence or not, white people’s bad feelings are important. “Many, many citizens in Missouri have deep concerns about election integrity,” Sen. Josh Hawley (R-MO) said in an op-ed explaining his vote against certifying the election of President Biden. “They want Congress to take action to see that our elections at every level are free, fair, and secure. They have a right to be heard in Congress.”

Of course, these whites believe it. Of course they are expressing concern about “election security” to their conservative representatives.  They’ve been told to believe it, they’ve been told to express concern, they’ve been told to “fight like hell.” And as Judge Long knew, white anxiety in and of itself, “rumors and accusations” without more, are traditionally all that’s needed to spark a cutback on voting.

But the sincere ignorance of some voters shouldn’t mask the hypocritical cynicism of politicians like Hawley. The best statement of what is really going on came from conservative super-lawyer Michael Carvin, who on March 2 argued in front of the Supreme Court in favor of restrictive Arizona voting laws. Justice Amy Coney Barrett asked Carvin why his client, the Republican National Committee, objected to the counting of ballots cast by registered voters accidentally in the wrong precinct. Carvin’s answer: “Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game, and every extra vote they get through unlawful interpretations of [the Voting Rights Act] hurts us.”

Even the shameless Carvin did not allege these ballots were fraudulent. They were “unlawful,” meaning the Republican party opposed them. They hurt the GOP; therefore, they must not be counted.

The fight is in the red-state legislatures, which are meeting now.

As University of Kentucky law professor Joshua A. Douglas pointed out on this site in January, citizens who approach their legislators can have sometimes have an effect in limiting the worst excesses of these bills. Everyone concerned with voting rights in red states should be loudly protesting any restrictive new rules—not just writing but calling or even visiting their state houses. But the hard fact is that in many Republican-led states, the GOP base wants a major cutback on the right to vote, and protest from the non-base public won’t distract their legislators from locking up the vote for 2022 and beyond. The courts don’t offer much help either. During the run-up to the election the new conservative Supreme Court majority eagerly struck down lower-court orders adapting voting rules to the pandemic and the travails of the Post Office.

Only one thing can block another rollback of the ballot—action by Congress. Currently pending before the House are the For the People Act of 2021 and the John Lewis Voting Rights Advancement Act. The first would require states to expand voter registration and early voting, stop “purging” state voter rolls, and inhibit gerrymandering by requiring states to set up independent redistricting commissions. The second would revive the Voting Rights Act requirement of “preclearance” of election practices by communities (like, say, Georgia) with a history of racist discrimination in voting.

Passing them will be near impossible; the GOP is unlikely to provide support for such sweeping measures. A filibuster in the Senate may be a roadblock.

Democrats are hearing warnings that doing away with the filibuster will make Republicans and their voters feel bad. They can soothe those feelings by letting these voting-rights bills die. But they should consider the fate of the Southern Republican Party after the Black voting purge of “redemption”: It disappeared.

It disappeared because Northern Republicans stopped protecting it. It took a century for Republicans to win again in the South.

History suggests that a political party that cannot or will not protect its own voters will not hold power again for many years.

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Garrett Epps

Garrett Epps is the Legal Affairs Editor of the Washington Monthly and a professor of law emeritus at the University of Baltimore. He is the author of American Epic: Reading the U.S. Constitution and four other books about the Constitution.