What is going on with the Voting Rights Act?

Thirty-five days to go…

In my last blog, I got into the weeds of why the American voting system can favor a minority and currently favors Republicans. (In other words, how the Republicans won the presidential election in 2000 and 2016  even though they lost the popular vote.) Reader beware… this week we are delving into another complex matter relating to our electoral system.

Currently, we are seeing a concerted effort to gut the 1965 Voting Rights Act or declare it unconstitutional.  This endeavor ideologically connects with Republicans’ stated view that the role of the Federal government should be limited and should not be the source of favorable treatment towards particular groups.  But in fact, a central tenet of Republican politics for decades has been to win elections by making it difficult for their opponents to vote. So this endeavor should not be passed over without further investigation.

The Voting Rights Act of 1965 is a federal law created to assure that the right to vote cannot be denied on account of race.  It enforces the Fifteenth Amendment to the Constitution, which stipulates “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.”

Though the Fifteenth Amendment was ratified in 1870, Blacks’ voting rights continued to be curtailed by state constitutions, poll taxes, literacy requirements, and intimidation.  The Voting Rights Act addressed the continuing barriers to voting. 

In 2013, the Supreme Court, in its Shelby County v. Holder decision, struck down the core stipulation of the Voting Rights Act. Section Five of the Act requires preclearance from the Federal government for any change of voting law or redrawing of district boundaries in districts that have had a history of voter suppression or racial discrimination. Section Four (b) lays out the formula for determining which jurisdictions are covered under Section Five. Shelby  County v. Holder invalidated Section Four (b), with the result that Section Five no longer has any power.  This was a signal to the legal system nation-wide that the Federal courts would no longer be the protector of voting rights, and that states therefore would be able to pass restrictive voting legislation.  Since the Shelby decision, at least 29 states have passed 94 laws restricting voting.  Some of these have been blocked by the courts, but every one of the 29 states now has at least one more restrictive law on its books.

The crippling of Section Five has made Section Two of the Voting Rights Act all the more important.  Section Two outlaws “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”  Section Two provides a mechanism for challenging maps and laws that have been enacted with a discriminatory purpose or impact.

Lawsuits relating to Section Two attempt to limit the Voting Rights Act in three ways: trying to remove the possibility for minority coalitions under Section Two, to restrict who can bring lawsuits under Section Two, and to make Section Two unconstitutional.

A Supreme Court ruling on Allen v. Milligan in June 2023 affirmed the power of Section Two.  Leading up to this decision, in November 2021, citizens’ groups had sued the state of Alabama with regard to its new district map created in the wake of the 2020 census.  In the new map, new district lines created only one district with a majority black population.  The suit claimed that this diluted black Alabamans’ voting power.  A District Court in Alabama found in favor of the suit, but it was appealed to the Supreme Court, which initially put a hold on the Alabama court order, leaving the new district lines in place for the 2022 election. The Supreme Court later considered the case in full and in June 2023 found 5-4 in favor of the plaintiffs, requiring a redrawing of Alabama’s district boundaries to make two black majority districts.  In doing this, the Court affirmed Section Two of the Voting Rights act. 

But at the time of the Supreme Court’s ruling on June 8, 2023, there were thirty-two active Section Two lawsuits proceeding in ten states.

In Arkansas last November a decision by the Federal Appeals Court of the Eighth Circuit held that voters and civil rights groups cannot bring claims under Section Two. Now only the U.S. attorney general can bring claims based on Section Two in the Eighth Circuit. This decision affects not only Black and minority voters in Arkansas, but also minority voters in Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, given that the Federal Appeals Court of the Eighth Circuit court has jurisdiction in those states. 

Republican officials are now trying to extend this decision beyond the Eighth Circuit.  In Louisiana, their efforts have been denied by the Fifth Circuit court, which covers Louisiana, Mississippi and Texas. 

Republican activists are also trying to remove the Section Two right of more than one minority group to club together in a district in order to create a majority of minorities.  In Galveston County, south of Houston, Texas, neither the black nor Hispanic population on its own is enough to earn majority status in a district, even though these two groups together make up 40% of voters in the county.  If minority-coalitions are deemed impermissible, then 40% of the population in the county will have no way to elect a representative who looks like them.  New districting created districts that split the minority vote among several districts.  The Texas court ruled this unconstitutional, and a three-judge panel of the Fifth Circuit Appeals Court confirmed this ruling, but in addition it asked the Fifth Circuit court to reconsider the case. Therefore, we don’t know right now what the ultimate outcome will be.

In Georgia, Republican officials are raising questions about the constitutionality of Section Two, arguing that the Voting Rights Act requires “inherently race-based remedies,” which, they argue, are not justified under the Fourteenth and Fifteenth Amendments. This argument has been rejected in the Georgia court, on the basis of the “the Supreme Court’s Allen v. Milligan ruling mentioned above.

In Florida, Kansas, Missouri and Texas, Republicans have beefed up criminal penalties and fines for those who “assist voters.” Florida Gov. Ron DeSantis last May introduced a $50,000 fine on third-party voter registration organizations if paid or volunteer staff who collect the forms have been convicted of a felony or are not U.S. citizens. As a result, some voter outreach groups have had to change their ways of doing business or cease altogether.

In Missouri an election law passed in 2022 bans compensation for people who register voters and stipulates that a person who helps more than 10 people register must be registered with the secretary of state’s office and must be a voter themselves. Failure to adhere to these requirements could lead to criminal penalties.

At the beginning of 2024, the Republican National Committee and the Georgia Republican Party intervened in a lawsuit challenging Georgia’s absentee ballot application deadline. The basis of their argument: the Voting Rights Act is unconstitutional.  This initiative did not succeed but is being appealed in Georgia’s Eleventh Circuit court.

According to the Brennan Center for justice, there is ample evidence that these laws affect communities of color at a high rate.  Courts have indeed struck down some as racially discriminatory. Since the Shelby County ruling of 2013, gaps between turnout rates for white voters and voters of color have widened. The Brennan Center’s research also indicates there was a racially discriminatory purpose in passing these laws, giving the lie to the presumption in the Shelby County ruling that protections for minority voting are no longer needed.

As is noted in the Shelby County ruling, the Supreme Court’s gutting of the Voting Rights Act can be reversed by Congress by passing the John R. Lewis Voting Rights Advancement Act, which would restore the Voting Rights Act to its full strength, and the Freedom to Vote Act, which would set nondiscriminatory baseline national standards for voting and elections.

Harris’s task of self-definition

Fifty-nine days to go….

As the national political center moved to the right in the 1980s, with the ideological consolidation of the Republican Party around a group of conservative ideas, the Democratic Party was forced to reckon with this development.

Bill Clinton and Barack Obama, the two Democratic presidents of the period after Reagan and before Donald Trump, both recognized they would have to court the political center.  Clinton tightened restrictions on welfare by a variety of measures including limiting the amount of federal funds available to welfare recipients.  Obama came down firmly on illegal immigration and was less stringent than progressives of his party would have wished with regard to fossil fuels. His success passing the Affordable Care Act – making health insurance available to many more people – was a milestone for government action to help the disadvantaged, though, again, progressives wanted Obama to go further and make health insurance available to all. 

Secondly, we saw in the 1990s a new tilt towards “identity politics.”  As Democrats pursued civil rights and inclusion for blacks and immigrants, identity became a way to mobilize groups that had experienced systematic oppression.  In the minds of its critics this new discourse became extreme, privileging the issue of the rights of identity groups over the general cause of addressing economic concerns. The left soon applied the language of civil rights and identity to homosexuals in the military, gay marriage, and gay rights more generally.  This theme was followed by a crusade for the rights of transgender people, creating dilemmas for people who wanted to be tolerant but who also felt that gender change was taking up too much of the political space for the numbers of people affected.   Those on the right of the political spectrum would now say that morality has become, for the left, a matter of choice, and in the process, the moral order of the country has been compromised.  Those on the left would respond that justice is the essential value of their moral order.

A third feature of the emerging Democratic Party after Reagan was its growing correlation with the college educated population. The Democrats, whose numbers of college graduates have steadily grown in comparison with stagnating numbers of college graduates in the Republican Party, are looking more and more like a self-perpetuating privileged class who get the university teaching jobs and prevail in journalism and the civil service.  This group has been able to influence the national conversation about many issues, skewing the discourse towards their own preoccupations, and leaving those of a conservative mindset feeling ignored. At the same time, left-wing populists like Bernie Sanders have criticized the Democratic leadership for giving in to the interests of the corporate world.  Anyone trying to lead the Democrats has to weave their way through all of this.

Several other factors have contributed to the polarization of the two main parties in the past forty years.

First, the rescinding of what is known as the “fairness doctrine,” by the Reagan administration in 1987.  This Federal Communications Commission doctrine set a standard for broadcast licenses, requiring those holding licenses to devote some broadcast time to controversial issues and to cover both sides of the debate.  The doctrine’s removal meant that broadcasters could concentrate their message on one political party’s outlook.

Secondly, the economic situation of the high-school educated lower middle class worsened in recent decades, thanks to the growing tech economy and corporations’ choice to send manufacturing jobs overseas, devastating areas in the center of the country that had long survived on these jobs.  Statistics from 2017 show men dying by suicide 3.5 times more than women, with middle aged white men being a particularly susceptible group. according to the American Foundation for Suicide Prevention.  The loss of dignity and meaning linked with traditional jobs, coupled with the awareness that soon white people will be a minority in the country, have created alienation and anger.

While college educated Democrats in government believe they are using their privileged positions to encourage resource distribution and a more just moral order, those who might gain by such resource distribution are easily convinced by suggestions they are  not part of the decision-making process, that the deciders do not know about their lives, and the deciders are more interested in promoting their own positions.These have been the themes of Donald Trump’s populism, which feeds on discontent and argues the government has been hijacked by self-serving elites who are alien to the people whose interests they are supposed to represent.

Donald Trump’s strategy to dismiss Harris will be, inevitably, to try to characterize her as a member of the elite, perilously liberal, inept in the face of immigration problems, and tied at the hip with President Biden.

Can Harris define herself in a way that side-step’s Trump’s accusations, and convinces independents that she truly represents a new way forward? Can she demonstrate that she puts the interests of working persons ahead of elitist concerns?  Can she do this while at the same time spearheading a campaign to protect reproductive rights and marriage equality?  Can she challenge large corporations that resist climate policy and have capitalized on inflation to keep prices high, and at the same time keep big donors on board? Can she offer a meaningful container for Americans of all backgrounds, while reassuring those white Americans who fear a loss of status and privilege, making them feel that they will have a dignified place in an America that serves the needs of all its citizens?  Can Harris overcome a deep belief that the American dream has died, that anger and alienation is the only path, and that government will never make things better?  Can she demonstrate her strength as a prosecutor in formulating a workable policy for the southern border? Can she capitalize on President Biden’s successes – particularly his left leaning economic policies that promise to be hugely beneficial to all Americans on the long term, and at the same time assert her independence by demonstrating that she departs from him markedly on key issues?

Next Tuesday, September 10, Vice President Harris will have an excellent opportunity to define herself when she and Donald Trump debate.  Americans will be watching.

Correction from last week’s blog: I mistakenly cited the failed constitutional amendment – the Equal Rights Amendment - instead of the Supreme Court’s 1973 Roe v Wade decision, as the pivotal moment in creating the federal government’s requirement that states permit abortion. This has now been corrected in that blog.

Coalitions and realignment - examining American political parties

Sixty-six days to go….

Overseas friends who follow American politics find our two parties a puzzle.  Neither represents a far-left philosophy, and for much of our history our two parties have seemed very similar.  Now we have the curious reality that the Republican Party, known as the party that best serves the interests of business, is also the party of the alienated white workers who have seen their jobs disappear with the decline of manufacturing.

How has this come about?

In the decade leading up to the Civil War (1861-1865), the Republican Party, formed in 1854 with the goal of preventing slavery’s expansion, had a strong base in the North and was the more liberal party.  And immediately after the Civil War, its1866 Civil Rights Act locked in universal male suffrage and opened to African American men full participation  in the political system.

The Democratic Party pre-Civil War, with its base in the South, was a party of disparate interests largely held together by Thomas Jefferson’s vision of an agrarian society with minimal intervention by the central government.  In 1860 this latter view was expressed as “states’ rights,” in other words, the view that the balance of power between the Federal government in Washington, DC, and individual state governments should lean heavily to the states.  The implication was that any decision about slavery should be taken by individual states rather than Washington.

Post-Civil War, the white south remained loyal to the Democratic Party and this continued for the next hundred years.  Blacks tended to vote Republican. But they were betrayed by the Republican Party,  champion of anti-slavery and policies to help southern Blacks after the war known as  Reconstruction, when it abandoned Reconstruction in 1877 and shifted to pursuing a pro-business agenda. This shift occurred for several reasons, one being growing concerns that blacks and immigrants, who were becoming more vocal, were demanding a redistribution of resources.   Republicans opposed resource sharing but their racism was cloaked in a vocabulary of opposition to “activist government,” “big government,” and “socialism.”  Comments Boston College professor Heather Cox Richardson,  “The powerful formula linking racism to the idea of an active government and arguing that a government that promotes infrastructure, provides a basic social safety net, and regulates business is socialism has shaped American history since Reconstruction. ”

In other words, racism, cloaked in American ideals of minimal government and self-help, has prevented the emergence of a coalition of the disadvantaged challenging business interests.

Both the Democrats and the Republicans of the later 19th century wanted minimal involvement from the central government. Both parties were coalitions of conservatives and liberals. Neither party championed civil rights. While the Republican Party served business interests, it also drew in farmers and laborers. The Democratic Party served the interests of white southerners of all classes. The crucial shift came with the economic crisis of the Depression at the beginning of the 1930s. The Republican Party’s lack of compassion became totally visible with the presidency of Herbert Hoover, 1929-33, who at the outset of the Depression refused any government intervention to help those whose lives had been shattered.

The Democrat Franklin Roosevelt, whose presidency began in 1933, reversed this policy, promising government intervention and declaring that the government’s primary role was to help ordinary people have better lives. This was startlingly new for the United States and was opposed by big business. His programs – dubbed the New Deal - quickly distributed emergency aid, created jobs paid for by the government, and introduced legislation to regulate wages, hours, and child labor, and introduced collective bargaining.  He introduced government insurance of banks and other initiatives to restore investor confidence.  And at the end of World War II, Roosevelt and his successor Truman were responsible for the “GI Bill” which enabled qualifying veterans and their families pay for school or university or job training.

Blacks began to shift to the Democratic Party in large numbers in the 1930s, and over the next decade blacks were split about 50-50 between the Republican and Democratic Party.

Roosevelt had moved American political life leftwards, opening the way for government spending on projects in the ’50s and ’60s that benefited all Americans. This state of play - Democrats as a coalition supporting the disadvantaged but also remaining the party of white southerners, and Republicans as pro-business - remained for thirty to forty years. But several events in the decade 1962 – 1973 made way for the polarization of the parties that we see today.

First, Milton Friedman’s articulation of “small government” in his 1962 book Capitalism and Freedom gave ammunition to Republicans who objected to Franklin Roosevelt’s New Deal and encouraged Republicans to push more aggressively for tax reduction and fewer business regulations, and thus to create a supposed “trickle down” economy that would benefit all.  This policy was aggressively promoted by Ronald Reagan when he became president in 1981, and paralleled Margaret Thatcher’s conservatism that swept the UK at the same time. It has never been proven to help the disadvantaged.

Secondly, the passing of the civil rights act of 1964 followed by the voting rights act of 1965, both Democratic Party initiatives led by President Lyndon Johnson, caused Southern Democrats to switch over to the Republican Party.  Culturally conservative southerners now brought a new set of concerns to into the Republican Party, which included resistance to school integration and gun control.

Thirdly, the Thirdly, the Supreme Court’s Roe v Wade decision of 1973 created a legal precedent requiring that all states must make abortion legal. Those already promoting a conservative agenda in the Republican Party picked up this issue. Though Ronald Reagan was not sympathetic to the anti-abortion cause and was  more interested in an economic policy to serve the business community, he reluctantly embraced the culturally conservative agendato maintain the party unity that would guarantee his election.  

The anti-abortion lobby, previously led by Catholic groups who were largely Democrats, now was taken over by the newly emerging Christian Right, based in the South, that had found its way into the Republican Party.  This group recognized that their best chance of reversing the abortion decision was by getting an anti-abortion majority on the Supreme Court, and over the next thirty years they carefully prepared the way for this.

Thus began a new era in American politics where the two parties began to coalesce behind ideologies, creating a more extreme difference between the parties.   From the Republican side, a series of conservative goals, including “supply side” economics that served business, an anti-communist agenda that more frontally challenged the Soviet Union (“Mr. Gorbachev, tear down that wall!”), assertion of the right to have guns, anti-abortion, and anti “crime” policies that were surrogates for keeping blacks down or in prison, became locked together and defining of the Republican Party.  A century earlier, Republicans had been the liberal party.  Now they were the conservatives.

In 1980, of the one-third of the population that were self-described conservatives, 41% were Democrats, 35% were Republicans, and 24% were independents.  By 1990, conservatives as a fraction of the total population had barely changed, but now 20% were self-described Democrats and over 50% were self-described Republicans.

Next week, we’ll look at the implications of this switch for the Democratic party and American politics going forward.

The language shift

Seventy-three days to go…

The electricity of the Democratic Convention was palpable and thrilling.  We were confident it would be.  Old favorites and best orators (Barack and Michelle Obama, Bill and Hilary Clinton, Oprah Winfrey), younger politicians, talented musicians and performers, and impressive Republicans who spoke of their concerns about Donald Trump and their belief in Kamala Harris, whipped up the fervor.  President Biden was repeatedly thanked for all he has done. None of this was a surprise.

My favorite speaker was Doug Emhoff, Kamala Harris’s husband and potential first First Gentleman, warm and self-deprecating, who instantly humanized Ms. Harris not because of her story of being raised by an immigrant single mother, but thanks to their romance launched through a blind date, and their ten-year marriage. She fits right in, has won the hearts of step-children, and cooks a mean chili relleno for Christmas and a brisket for Passover. This blended family’s sense of humor and groundedness became much clearer and we loved them for it.

Vice-president Harris’s acceptance speech showed she can command a crowd of 100,000 and is completely in charge when it comes to protecting the oppressed and prosecuting the wicked. She was sent by President Biden to alert President Zelensky to Russia’s imminent invasion of Ukraine and expresses unambiguous commitment to NATO partners.  She voiced her deep compassion for the Palestinians of Gaza and determination to get to a ceasefire, while reasserting the US’s longstanding guarantee of the existence of Israel, Israel’s right to defend itself, and the US’s support of that right. With regard to immigration, she will reinstate the bipartisan bill that failed to make it through congress because Donald Trump withheld his nod from his followers.  Her economic goals are oriented to the needs of the middle class through an “opportunity economy,” specifically addressing housing, grocery prices, and child allowances.

But the subtext of the Convention, which actually wasn’t a subtext at all but rather a supertext, was the change in vocabulary and messaging.  Firstly, patriotism has been reclaimed by the Democratic Party.  During the 1960s and early 1970s, with the Left’s opposition to the Vietnam War, the Democratic Party stopped relying on appeals to patriotism and freedom.  Over the years, those words have become the possession of Republicans.  This week the Democrats took them back and asserted them for all Americans.

Reproductive rights – not a new topic but a tweaking in terminology – were perhaps more publicly asserted than many of us had heard before in such a venue.  This is no longer just about abortion or choice. Heart-rending speeches told how the Dobbs decision of 2022, which removed nationwide parameters on abortion that all states had to adhere to, has now left it to states to formulate their own policies on reproductive rights.  Twenty-two states have since taken away the right to abortion, a policy so heavily enforced that doctors are frightened to minister to women having miscarriages for fear they will be accused of carrying out an abortion.  Some of these same states threaten to make it impossible to seek abortion in another state, and some threaten to take away the right to in vitro fertilization. While many of us would take the view that abortion should be rare, we do not believe the state should have this much control over people’s personal decisions. Three high-profile speakers – Michelle Obama, Tim Walz and Tammy Duckworth – spoke of the pain of infertility and how they would not have their children were it not for in vitro or other similar measures.  It was all out there.  

Another shift in language appeared in the way the white, rural middle class was honored repeatedly, most notably in the person of Ms. Harris’s chosen running mate, Governor Tim Walz, with frequent references to his plaid shirts, football coaching, high school teaching, hunting, and his winning of his seat in Congress from a traditionally red (Republican) district.  Harris, Walz, Emhoff, both Obamas and many others emphasized their roots in families where resources were limited, where hard work, after school jobs, and perseverance were the values that got them through.  As they all underlined, it is only in this country that people of such humble beginnings have the real possibility to make their lives count on the national stage.  While American success stories are often recounted in terms of accumulated wealth, these people were telling a different American story, of public service and offering a helping hand to others.  The emphasis on ordinary folks might seem to be a no-brainer for the Democratic Party. It was germane for Franklin Roosevelt in the Depression years, and is central for President Biden. But this is an absolutely crucial plank for the party going forward.  The Democratic Party must turn the page from being understood as the party of the elite, a problem that made it easy for Mr. Trump’s false populism to make false promises to the middle-class and the left-behinds.

Finally, and perhaps most importantly, in the past five weeks, Kamala Harris and Tim Walz have changed the Democratic Party’s language in relation to Donald Trump. As Ms. Harris said in her acceptance speech, Donald Trump is an “unserious” man, even though the consequences of his being elected would be serious.    Harris and Walz have helped the party and the nation joke about Donald Trump.  “Weird” was only their first foray in this regard.  Barack Obama picked up the theme when he kidded about Mr. Trump’s obsession with crowd size. At one point Harris said, of the Republicans, “They must be out of their minds.” The Democratic Convention broke the spell of heaviness and rancor that Donald Trump has been able to cast over this country.

And then there was the joy. The word “joy” was used repeatedly, perhaps over-used, in the past week. But the eruption of joy was a proclamation that, in the words of Maryland senate candidate Angela Alsobrooks, we are “frozen in fear” no longer.