Despite Congress’s efforts to protect the voting rights of all U.S. citizens in the six years after the Civil War, by 1900 state legislatures in the South had disenfranchised African Americans. Two developments made this transformation possible: a combination of actions by both the Supreme Court and southern state governments, and congressional inaction.
Recent actions of the Supreme Court and Republican state governments hint that the United States may be on the same road.
Between 1865 and 1871, Republicans in Congress passed initiatives to protect the voting rights of newly freed African American men. The Fourteenth Amendment in 1868 established African American citizenship, which Republicans assumed to include the right to vote. When white southerners resorted to violence to deter black voters in 1869 and 1870, Congress responded with a tougher measure: the Fifteenth Amendment. Law now prohibited the denial of the vote to any citizen “by any State on account of race, color, or previous condition of servitude” and gave Congress the “power to enforce this article by appropriate legislation.” To provide the legal basis for the use of the Fifteenth Amendment, Congress passed the Enforcement Act of 1870, without which the amendment would be ineffective. Protected by the Federal Government, more than half a million African Americans in the South started voting.
More southern Democrats returned to Congress in the 1870s, though, and in 1874 the Democrats commanded a majority in the House of Representatives for the first time since before the Civil War. Democrats kept Congress from passing more legislation to expand and protect suffrage.
In 1875, the Supreme Court made two significant decisions that undercut what the Republican Congress had tried to accomplish. The third and fourth sections of the Enforcement Act of 1870 had protected voters from violence and from election officials who tried to avoid counting their votes. In U.S. v. Reese and U.S. v. Cruikshank, the Court declared that both of these sections were beyond the limits of the Fifteenth Amendment and that congressional enforcement of these protections was unconstitutional. The responsibility of protecting voting rights fell solely to the state governments, not the Federal Government.
Southern states seized the opportunity to limit the vote. By 1908, all eleven states of the former Confederacy had created new state constitutions with policies for disenfranchising significant portions of their populations, including most African Americans. They used poll taxes, which required individuals to hold on to receipts for a year, or literacy tests, in which white officials determined who was literate enough to vote. More direct strategies included violence or refusal to count certain votes. The now gutted Enforcement Act of 1870 would have ensured the protection of the Federal Government against such actions. Without that protection, African Americans largely stopped voting. In the 1890s, participation in elections of the eligible African American population in southern states such as Louisiana and Mississippi decreased by more than 90%.
A dysfunctional Congress passed no new legislation to stem this tide. Even with Republican majorities in both chambers of Congress and a Republican executive in the White House from 1889 to 1891, political leaders failed to answer the critiques of the Court or to limit the disenfranchising actions of the state governments. In 1894, a Democratic Congress and White House officially repealed the Enforcement Act of 1870, finishing the work the Court had begun.
Not until the 1960s did Congress reaffirm the protections for black voting that congressmen had attempted to establish more than ninety years earlier. Even then, Congress acted in response to pressure from Civil Rights protesters. The vote for the Voting Rights Act of 1965 was largely along sectional lines: in the Senate, members from former Confederate states voted against it 19-3 while members from the rest of the nation voted for it 74-0. This act served as the crowning legislative achievement of the Civil Rights Movement, finally protecting citizens’ right to vote.
In 2013, in the case of Shelby County v. Holder, the Supreme Court began dismantling the Voting Rights Act. It struck down two crucial provisions of the act that had ensured Federal Government supervision of changes in voting laws in historically discriminatory areas. “Nearly 50 years later, things have changed dramatically,” Chief Justice John Roberts declared. He condemned Congress’s attempt to re-invoke the Voting Rights Act since the authors of the renewal had relied on “a formula based on 40 year-old facts having no logical relation to the present day.” In the two years since that decision, a dysfunctional U.S. Congress has made no serious attempt to allay these concerns and regain lost voter protections by passing new legislation.
In the meantime, state governments – again, predominantly in the South – are reinitiating the process of disenfranchisement. Of the eleven states that constituted the Confederacy, nine have laws requiring photo identification for citizens to vote, and the state legislatures of the other two have offered similar legislation that was later ruled unconstitutional. These laws require voters to show valid forms of photo ID in order to have their votes counted. In Kansas, this requirement has denied the right to vote to an estimated 36,000 people who have tried to register. Of the sixteen states with such laws, all but one have Republican legislatures.
Actions of the state government in Alabama have garnered the most attention recently. The state passed a photo ID law in 2011, and it went into effect soon after the Court’s decision in Shelby County v. Holder neutralized the protections of the Voting Rights Act. On September 30 of this year, Alabama announced the closing of 31 of the state’s 70 DMVs, largely in less affluent and rural areas. Many eligible voters in these areas lack driver’s licenses, and now the challenges of acquiring one are more daunting. Without a driver’s license – the preferred photo ID for voters in such states – these citizens cannot vote.
In the late nineteenth century, disenfranchisement was so successful that it kept African Americans away from the polls and out of government for most of the next century. Only after decades of abuse culminated in the Civil Rights Movement did leaders in the U.S. government decide in favor of a democracy that ensured the voting rights of all citizens. The developments of the past three years imply that a new generation of American leaders have changed their minds.