Attacks on voting rights began long before the 2020 election, with moves by Congress and the Supreme Court to gut the 1965 Voting Rights Act. The attacks continue in this electoral cycle, with intimidation of voters, restrictions on absentee voting, and laws designed to make in-person voting more difficult, especially for voters of color and low-income voters.
The 15th Amendment to the U.S. Constitution, ratified in 1870, says: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
For nearly a century, states in the South flouted the law, denying Black people the right to vote through poll taxes, literacy tests, intimidation and assassination. After church bombings, lynchings, assassinations, and other bloody repressions of civil rights activists, Congress passed the Voting Rights Act in 1965 to protect against racial discrimination in voting.
Originally published in the Minnesota Spokesman-Recorder. “This is the fourth and last of MSR’s “Elections Under Attack” series that looks at threats to our elections growing out of the Big Lie that the former president won the 2020 election. Articles in the series look at each of these threats to democratic elections in the United States, with an emphasis on Minnesota.“
It was later amended to include the prohibition of language discrimination as well. In Mississippi, Black voter registration went from less than 7% of eligible voters in 1965 to almost 60% in 1967. By 2012, 90% of eligible Black Mississippians were registered to vote.
A crucial provision of the Voting Rights Act required preclearance of changes in state voting laws in states that had historically discriminated against Black voters. The preclearance process disallowed changes that would disparately affect Black voters.
In Shelby v. Holder, decided in 2013, the Supreme Court eviscerated the Voting Rights Act, saying that the preclearance section was outdated. In Brnovich v. Democratic National Committee, decided in 2021, the Supreme Court further restricted application of the Voting Rights Act.
Immediately after the 2013 Shelby decision, states began changing voting laws in ways that make voting more difficult. Many of these changes have a disparate impact on Black voters. One example: Arizona now requires voters to provide proof of citizenship through a birth certificate or passport, and to report their place of birth on voting registration forms.
Millions of Americans—an estimated 5 to 7%—do not have these documents. Passports are expensive and it takes a long time to get one. Birth certificates also cost money, and may be difficult or impossible to obtain for elderly voters or for people born at home rather than in a hospital.
In Minnesota, Republican Secretary of State candidate Kim Crockett questioned whether people who cannot read or write English and people with disabilities who need assistance in voting should be eligible to vote. She later said her comments were taken out of context, but refused to clarify what she meant.
After each census, state legislatures are required to redraw district lines for state legislatures and Congressional districts. Since the 2020 census, Republican state legislatures have redrawn lines in ways that deliberately dilute the voting power of Black voters, of Hispanic voters, and of Democratic voters. This kind of redistricting, which is based on political considerations rather than logical municipal and county boundaries, is called gerrymandering.
In January, a three-judge federal appeals panel ordered Alabama to redraw its redistricting maps. The federal appellate court said that the state legislature tried to squeeze Black voters into as few districts as possible. This would allow overwhelming White majorities in all but one of Alabama’s Congressional districts.
The judges said that Alabama’s plan violates the Voting Rights Act. The Supreme Court blocked their order, saying that it was too close to the election. In her dissent, Justice Elena Kagan wrote: “Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year.” The Supreme Court will hear this case, Milligan v. Merrill, but not until after the 2022 election.
In Moore v. Harper, a North Carolina state court threw out the legislature’s redistricting plan, saying that it violates the state constitution. Republicans in North Carolina appealed to the U.S. Supreme Court. They are asking the Supreme Court to rule that only state legislatures can decide on voting maps, and that state judges cannot overrule them, no matter what.
Other court decisions leave gerrymandered redistricting plans in place in other states as well.
Criminal convictions disenfranchise voters
In 1998, an estimated 3.9 million U.S. citizens were ineligible to vote because of state provisions barring convicted felons from voting. Of this number, an estimated 1.4 million were Black men. By 2016, some six million U.S. citizens were barred from voting due to past convictions.
State laws are confusing and inconsistent. In some states, a person convicted of a felony can vote after they have completed a prison sentence. In others, they must also be discharged from parole. In some, they must pay all fines and fees, including fees imposed to pay for room and board while imprisoned. In some states, they must apply to the governor or the legislature to have voting rights restored.
The American Bar Association describes the case of Edna Kathleen Lewis, who completed probation for identity theft and theft of property. “She lives with her husband, a disabled veteran, on Social Security and disability benefits. She has been paying more than $100/month on her fines and fees for more than four years but will need to do so for more than another 35 years before they are fully paid off.”
Florida’s laws are particularly confusing, and that confusion trapped 20 Floridians who were told they were eligible to vote again. Two years after they registered and voted in the 2020 election, they were arrested on voter fraud charges. Florida Governor Ron DeSantis trumpeted their arrests as proof of voter fraud.
Several of the men, most of whom are Black, insist they believed they were eligible to vote. They describe being told by voter registration officials that they were eligible to vote, and receiving voter registration cards in the mail, which they believed meant that they were eligible.
In a similar case in Tennessee, Pamela Moses, a Black woman, was held in jail for 82 days on voter fraud charges—despite the fact that her probation officer had told her she was eligible and helped her to register to vote. The Sentencing Project estimates that one in five Black voters in Tennessee is ineligible to vote because of past convictions.
In Minnesota, more than 53,000 people are ineligible to vote because they are serving sentences for felony convictions or are on probation or parole. Extremely long parole terms mean extended periods of loss of voting rights.
The late, great Congressman John Lewis fought for voting rights from Bloody Sunday on the bridge in Selma, Mississippi, in 1965 throughout his 34 years in Congress and right up to his death in 2020. With voting rights still under attack, his words ring true today: “The right to vote is precious, almost sacred. It is the most powerful nonviolent tool or instrument in a democratic society. We must use it.”