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All Votes Matter

WASHINGTON — Many find politics frustrating because problems that seemed to be solved in one generation crop up again years or decades later. The good thing about democracy is that there are no permanent defeats. The hard part is that some victories have to be won over and over.

And so it is with the Voting Rights Act of 1965, a monument to what can be achieved when grass-roots activism is harnessed to presidential and legislative leadership. Ending discrimination at the ballot box was a way of underwriting the achievements of the Civil Rights Act passed a year earlier by granting African-Americans new and real power to which they had always been constitutionally entitled.

“The results were almost unimaginable in 1965,” writes Ari Berman in Give Us the Ballot: The Modern Struggle for Voting Rights in America, his timely book published this month. “In subsequent decades, the number of black registered voters in the South increased from 31 percent to 73 percent; the number of black elected officials increased from fewer than 500 to 10,500 nationwide; the number of black members of Congress increased from five to 44.”

And, yes, an African-American was elected president of the United States in 2008 and re-elected in 2012. He was powered by the ballots of Americans of color who would not let anything turn them around from their polling places.

President Obama’s victory has been routinely cited by those who were already insisting that the Voting Rights Act was outdated. They turned out to have a powerful ally in Chief Justice John Roberts, whose record on the issue Berman analyzes closely. If the United States could elect a black president, wasn’t that a sign that there was no longer a need for a strong Voting Rights Act?

Berman quotes Ed Blum, a tireless activist in the effort to weaken the Voting Rights Act. Before the House Subcommittee on the Constitution, Blum referred to Birmingham, Alabama’s legendary commissioner of public safety as a figure of the past: “Bull Connor is dead. And so is every Jim Crow-era segregationist intent on keeping blacks from the polls.”

In fact, Obama’s election called forth a far more sophisticated approach to restricting voting. Republicans closely examined how Obama’s political organization had turned out large numbers of young African-Americans who had not voted before. Their participation was facilitated by early voting, and particularly Sunday voting.

So legislatures in many states where Republicans had full political control went to work to make it harder for African-Americans, Latinos, and young people to vote. Of course, that is not what they said they were doing. They invented a scarecrow, “voter fraud,” to justify voter ID laws. These laws disadvantage inner-city residents and favor suburbanites who get driver’s licenses as a matter of routine. They also used all kinds of excuses to roll back early voting.

“No matter how much evidence emerged to the contrary, the voter-fraud myth would never die,” Berman writes. Indeed. The fraud specter is so useful to those who want to restrict voting that the facts don’t trouble them. As a result, a non-problem is invoked to create a massive new problem of obstructing legitimate votes.

Earlier this month, the 5th U.S. Circuit Court of Appeals ruled that Texas’ voter ID law “has a discriminatory effect” and amounted to a poll tax. But it also sent the case back to a lower-court judge asking her to meet a high standard of showing that the law was passed with an explicitly discriminatory intent. You can bet that the Texas voting case or another in North Carolina, or both, will make their way to a Supreme Court that has already gutted the Voting Rights Act once in a 2013 decision written by Roberts.

Will he do it again? And will voters in 2016 realize just how important a president’s power to name future Supreme Court justices is to the very right they will be exercising on Election Day?

It would have been lovely if Berman’s book could simply have celebrated the 50th anniversary of the Voting Rights Act. Instead, it is even more useful as a guide to what still needs to be done. He tells the story of the charismatic leader of the North Carolina NAACP, the Rev. William Barber II, who led the state’s innovative Moral Monday protests.

“What do we do when they try to take away voting rights?” Barber asked at a rally.

The crowd responded: “We fight, we fight, we fight.”

There is no alternative.

E.J. Dionne’s email address is Twitter: @EJDionne.

Photo: Light Brigading via Flickr

Weekend Reader: ‘Give Us The Ballot: The Modern Struggle For Voting Rights In America’

Fifty years after the passage of the Voting Rights Act — “the crown jewel of the civil rights movement” — and the most fundamental democratic exercise continues to come under attack.

Give Us The Ballot by The Nation contributing writer Ari Berman, is an exhaustive history of the triumphs and setbacks of the movement to expand and protect the rights of all Americans to vote — from the streets of 1960s Selma, Alabama to the courthouses of today.

You can read an excerpt below. The book is available for purchase here.

In December 1964, Lyndon Johnson was in a jubilant mood. He’d just routed Barry Goldwater by twenty-three points, winning 486 electoral votes to Goldwater’s 52, the most lopsided victory in U.S. presidential history to date. Five months earlier, on his daughter Luci’s seventeenth birthday, he’d signed the Civil Rights Act of 1964, a sweeping law that desegregated schools, restaurants, hotels, parks, and many other public places. When John F. Kennedy’s advisers urged LBJ not to push the bill following the assassination, the new president replied, “Well, what the hell’s the presidency for?”

Johnson’s commitment to civil rights surprised his critics on the left and the right. He was the first southern president since the Civil War. His first vote in the House of Representatives in 1937 came against an antilynching law. His first major speech in the Senate was a defense of the filibuster, which had been used so often by southern Democrats to block civil rights legislation. He’d voted against every civil rights bill in Congress from 1937 to 1956. JFK put him on the ticket to win the southern segregationist vote.

Yet LBJ hadn’t had a change of heart so much as a change of circumstances and constituency. He was no longer a congressman or senator from Texas, but the president of the United States. He was now free to say what he believed.

Johnson could be crude and manipulative, but he was also unexpectedly compassionate. After graduating from Texas State University–San Marcos, LBJ taught fifth through seventh grades at a segregated Mexican-American school in the south Texas town of Cotulla, where his students showed up barefoot because they were too poor to afford shoes. LBJ cried when he told the story. “It was a genuinely uncontrolled emotion,” said Deputy Attorney General Ramsey Clark, a fellow Texan. “It was pretty deep and pretty impressive.”

Now Johnson wanted to cement the civil rights revolution by giving African-Americans and other long-disenfranchised minority groups the right to vote, a goal that previous civil rights legislation in 1957, 1960, and 1964 had not accomplished. The ballot, the president believed, would give Mexican-Americans in Cotulla and blacks in Selma the power to change their circumstances. The vote was “the meat in the coconut,” he liked to say.

“I want you to undertake the greatest midnight legislative drafting that has happened since Corcoran and Cohen wrote the Holding Company Act,” the president instructed the acting attorney general, Nicholas Katzenbach, on December 14, 1964, referring to an obscure New Deal bill in 1935 regulating electric utilities that was written by two senior aides to Franklin Roosevelt. LBJ wanted “a simple, effective method of gettin’ ’em registered.” He urged Katzenbach and the top lawyers in the Justice Department to “scratch their tails” and “get me some things you’d be proud of, to show your boy, and say, ‘Here is what your daddy put through in nineteen sixty-four, -five, -six, -seven.’”

Katzenbach, who’d succeeded Robert Kennedy as the nation’s top law enforcement official after Johnson’s archrival left to run for the U.S. Senate in New York in the summer of 1964, was not thrilled with the new assignment. He’d spent eight months on Capitol Hill lobbying for the Civil Rights Act, which endured a fifty-seven-day filibuster by southern Democrats, the longest in Senate history. The office of Senate Minority Leader Everett Dirksen of Illinois had practically become his second home. Strong voting rights provisions were stripped from the bill to win congressional support.

“The 1964 Civil Rights Act was exhausting,” said Ramsey Clark. “It about expended our goodwill with the Senate and the House. President Johnson insisted we were going to have another round of civil rights legislation, this time on voting … There was no enthusiasm in the Justice Department, but Johnson insisted on it.”

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At the end of December, after consulting with lawyers from the Appeals and Research Section at the DOJ, Katzenbach sent LBJ three options, in order of preference, “to overcome voter apathy and discrimination.” Katzenbach’s top choice, a constitutional amendment prohibiting states from employing devices like literacy tests and poll taxes that disenfranchised minority voters, “would be the most drastic but probably the most effective of all the alternatives,” he wrote. It was also the most “cumbersome,” he admitted, because a constitutional amendment needed to be ratified by two-thirds of Congress and three-fourths of states. The second option would be to create a federal commission that would appoint federal officers to register voters for federal elections. The third option would be for the federal government “to assume direct control of registration for voting in both federal and state elections in any area where the percentage of potential Negro registrants actually registered is low.”

Civil rights activists favored the last option. “This approach would quickly provide political power to Negroes in proportion to their actual numbers in areas in which they are now disenfranchised,” Katzenbach wrote. “On the other hand, its effects on general voter apathy would be relatively minimal … Moreover, its constitutionality is more dubious than that of the preceding suggestion.”

In his State of the Union address a week later, Johnson vowed to “eliminate every remaining obstacle to the right and the opportunity to vote.” Inside the White House, a debate raged among Johnson’s inner circle over how and when to push voting rights legislation. “Certainly I have absolutely no problem with the desirability of such legislation, but I do have a problem about the timing and the approach,” Lee White, one of LBJ’s top advisers on civil rights, wrote to the special assistant Bill Moyers on December 30, 1964. The Civil Rights Act was less than a year old, White argued, and the prospects for passing voting rights legislation did not look particularly favorable. White proposed that 1965 “be a year of test” on civil rights.

Horace Busby, a Johnson aide since 1946 from Texas, was less charitable. “To southern minds and mores,” he wrote to White and Moyers, “the proposals of this message would represent a return to Reconstruction.”

The mercurial Johnson wanted to keep his legislative options open. Four days after talking with Katzenbach, LBJ met at the White House with Martin Luther King, Jr., who’d been awarded the Nobel Peace Prize that week. King told Johnson that he would soon be launching a voting rights campaign in Selma, where only 2 percent of blacks were registered to vote. He asked the president for his support.

“Martin, you are right about that,” Johnson replied. “I’m going to do it eventually, but I can’t get voting rights through in this session of Congress.” The president’s ambitious Great Society agenda took priority. “I need the votes of the southern bloc to get these other things through,” Johnson said. “And if I present a voting rights bill, they will block the whole program. So it’s just not the wise and the politically expedient thing to do.”

King left the meeting dispirited. His voter registration drive in Selma would be aimed as much at the federal government as at the segregated South. “I think we’ve got to find a way to get this president some power,” King told Andrew Young as they departed the White House.

Excerpted from Give Us the Ballot by Ari Berman, published in August 2015 by Farrar, Straus and Giroux, LLC. Copyright © 2015 by Ari Berman. All rights reserved.

If you enjoyed this excerpt, purchase the full book here.

5 Worst Voting Rights Attacks Since 2000

When George W. Bush became the first person to lose the popular vote and still take the White House since 1888 — with huge assists from Jeb Bush, John Roberts, Ted Cruz, and the Supreme Court — it proved to conservatives that it was too easy to vote in America.

And W.’s administration, filled with several officials who had built careers on opposing the advances of civil rights, went to work to fix that.

Ari Berman’s new book Give Us the Ballot, which is being released on Tuesday — just two days before the 50th anniversary of the passage of the Voting Rights Act — tells of the rise and what could be the fall of America’s second reconstruction. It’s the story of a revolution that begins in a nation where black women and men literally had to risk their lives to overcome hurdles to register and vote. It spans five decades in which a singularly successful piece of temporary legislation found a permanent foothold to help ground an expansion of the right to vote in places it had been denied for nearly all of American history. And it ends after the election of the first black president inspired a conservative movement rebuilt on a Southern Strategy to strike a blow to the “crown jewel of the civil rights movement” by again shrinking the most fundamental right in a democracy.

The through line of Berman’s inspiring but gut-wrenching history of the last century’s struggle for voting rights is the life of John Lewis, the youngest speaker at 1963’s March On Washington and current congressmember from Georgia. Lewis was beaten in Selma and has been a witness to or an active participant in every effort to expand ballot access in the last five decades. And his testimony provides the most stirring indictment of the right wing’s mission to retain power over a “coalition of the ascendant” with legislation that exists only to discourage the votes of minorities, students, and the poor.

You need to read this book to understand what has been won and what we risk losing. But to get a sample of the assaults on the right to vote in what he calls “counterrevolution,” here are 5 of the worst attacks on voting rights from the right since George W. Bush quite literally took office.

1. Ohio 2004.
The only reason the 2000 election even ended up in the Supreme Court was because Florida’s purge of the voting rolls left 12,000 citizens, 44 percent of them African-American, unable to vote. “We did think it was outcome determinative,” the Civil Rights Commission reported. Democrats went into 2004 determined to not forget what had happened in Florida. But on Election Day in 2004, history repeated itself, Berman suggests.

Republicans in Ohio didn’t need to purge voting rolls or stop the count, they just needed to make sure that John Kerry’s voters didn’t have easy access to the polls. “Overwhelmingly Democratic precincts in Columbus received seventeen fewer voting machines in 2004 than 2000, while heavily Republican precincts got eight more machines.” The result? Democrats had to wait hours longer to vote than Republicans. In the end, an estimated 174,000 Ohioans left their lines before voting. Bush won the state by 118,000 votes.

2. Bush’s Department of Justice fires U.S. Attorneys for not inventing voter fraud.
Beginning in 2002, the Department of Justice, led by Attorney General John Ashcroft, was on a mission to find voter fraud — while massive mortgage and securities fraud that would lead to the financial crisis went largely unattended. In the end all they proved was that they’d been wasting their time. Of more than 300 million votes cast, they’d nailed 86 convictions. Not a single case involved voter impersonation or had swung an election. Meanwhile administration officials helped suppress an Ohio State/Rutgers University study that found voter ID laws reduced Latino turnout by 10 percent and black and Asian-American turnout by 6 percent in 2004. In other words, they worked just as conservatives had designed them to. Republican donors refused to accept that there was no evidence to justify new voting restrictions and demanded that someone be punished for not finding it. After the 2006 election, respected U.S. Attorneys David Iglesias — the basis for the character Tom Cruise played in A Few Good Men — and John McKay were forced out of their jobs for failing to indict anyone for fraud Republicans were sure existed.

“It’s very frightening, and it doesn’t exist,” Iglesias said, comparing voting fraud to the bogeyman parents say is in the closet to keep kids in bed. “U.S. Attorneys have better things to do with their time than chasing voting fraud phantoms.”

3. Trying to steal the 2012 election — and failing.
If Bush losing the popular vote proved access to the polls was a problem, Obama’s landslide election had proven it had become an epidemic. In 2011 and 2012, 27 new laws in 19 states, nearly all Republican, put new limits on voting. Voter ID laws backed by The American Legislative Exchange Council (ALEC) were introduced in 37 states, all nearly identical. In addition, five states — including the two crucial swing states with the worst records of voting integrity, Ohio and Florida — cut early voting time. The Department of Justice used Section 5 of the Voting Rights Act, which requires certain states and counties to pre-clear all changes to voting laws, to prevent the most egregious attempts to suppress the vote. But if 2012 had been as close as 2004, as many suggested it would be, it wouldn’t have mattered. Voters in Florida reported that they were forced to wait several hours and often make two trips to the polls in order to vote. But a backlash to the new restrictions so baldly targeted at minorities resulted in their turnout rising over the 2008 election. For the first time ever, a higher percentage of black voters showed up at the polls than white.

4. Gutting the Voting Rights Act.
A major subplot in Berman’s book is Chief Justice John Roberts’ passion for limiting voting rights. And ironically, President Obama’s re-election helped him build that majority he needed to do it. In his majority decision for Shelby County v. Holder, Roberts praised the law, which he had claimed was constitutional during his confirmation hearing. “But history did not end in 1965,” he wrote. Deploying the logic of “equal sovereignty” that had not been used by the Court since the Dred Scott decision deprived all black people of citizenship, he gutted Section 5 of the Voting Rights Act by throwing out the formula used in Section 4. His argument was the formula, which allows for state counties that show a strong commitment to voting rights to opt out, was not reflective of current realities.

“These men never stood in unmovable lines,” John Lewis wrote in his reaction to the decision. “They were never denied the right to participate in the democratic process. They were never beaten, jailed, run off their farms or fired from their jobs. No one they knew died simply trying to register to vote. They are not the victims of gerrymandering or contemporary unjust schemes to maneuver them out of their constitutional rights.”

5. Shelby opens the voter suppression floodgates.
The speciousness of Roberts’ argument was proven by how several of the states freed from Section 5 immediately reacted to its gutting. Texas immediately put its voter ID law into effect. Pre-Shelby this had been blocked because over half a million Latinos lacked ID and might have to pay, adjusted for inflation, more than the poll taxes that had been outlawed by the VRA, just to secure the papers needed. North Carolina was already in the process of enacting the worst set of voter suppression laws since Reconstruction. After Shelby, it toughened its voter ID law to make it more restrictive than Texas’. Voters in 14 states faced new restrictions during the 2014 elections, the first without the full protection of the VRA since 1965 and, coincidentally, the election with the worst turnout since before World War II ended.

Our voting rights landscape, Berman notes, now resembles the period before 1965. The first Reconstruction fell to violence legitimized by the Supreme Court. Whether our second reconstruction meets the same demise depends on the enduring strength of the remaining sections of the law, and the hopes of fixing it before conservatives construct permanent legislative and judicial majorities that make it possible. And while demographics may be on the side of the ascendant, the cunning effectiveness of a movement so delusional that it can only process failure as fraud presents a fearsome opposition.

“How many of you are going to leave here and remember the blood of the martyrs?” William J. Barber, the architect of North Carolina’s Moral Mondays movement that rose up in part to oppose the right’s attack on voting rights, asked a crowd in 2014.

Berman’s book is asking us that same question.

Photo: Bill Selak via Flickr