Continuing the Legacy of Jim Crow: The South’s New “Election Integrity” Laws
The November 2020 Presidential Election saw historically high levels of voter turnout, claiming the title of the most voted-in election of the twenty-first century [1]. A historic 69% of voters cast their ballots using nontraditional methods, including voting early and/or voting by mail [2]. The high levels of voter turnout were lauded across the nation, with activist organizations and election administrators alike celebrating the unprecedented use of the ballot. However, these celebrations have proved short-lived.
During the Spring 2021 State Legislative Session, bills ostensibly concerned with “election integrity” appeared in virtually every state. These reform bills claim to address widespread allegations of voter fraud, which are most vehement in the South; for example, Texas’s law describes itself as “an act relating to election integrity and security, including by preventing fraud in the conduct of elections in this state.” [3] The method such bills uniformly use to combat alleged voter fraud is to limit access to nontraditional methods of voting. To take another example, Florida’s equivalent bill candidly states in its official bill summary that it “[limits] the duration of requests for vote-by-mail ballots to all elections through the end of the calendar year of the next regularly scheduled general election.” [4] Put simply, Florida voters will have a significantly shorter window to apply for an absentee ballot for the next general election. As of July 2021, 18 states have enacted 30 laws which restrict access to mail-in and early voting; Georgia, Iowa, and Florida passed some of the most restrictive measures in the form of omnibus bills [5].
This recent wave of restrictive legislation has significant parallels with the legislation passed during the Jim Crow Era, which disenfranchised virtually all Black voters in the South. Both sets of laws responded to a sharp increase in voter turnout from marginalized groups; furthermore, both created obstacles for those marginalized groups to obtain a ballot.
Similar Intent: Suppressing votes from people of color
Just as the November 2020 election saw unprecedented turnout from voters of color, the era immediately following the Civil War saw a brief period of high political participation from formerly enslaved people. In both cases, laws curtailing the right to vote were swiftly passed by conservative, Southern legislators afraid of losing their seats.
The end of the Civil War seemingly ushered in a new era for Black Southerners, promising an end to the institution of plantation slavery and enfranchisement for all formerly enslaved men. The Fifteenth Amendment, ratified in 1870 and adopted by all Southern states as a condition of their readmittance to the Union [6], stated that “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.” [7] Immediately, Black men took advantage of their newfound enfranchisement; over half a million Black men became voters during this period, largely casting their ballots in favor of the pro-emancipation Republican party [8]. In the same year as the ratification of the Fifteenth Amendment, the first Black legislators, Senator Hiram Revels and Representative Joseph Rainey, were elected to the U.S. Congress; both came from Southern states [9]. It appeared that the winds of change were blowing across the South.
Following this brief period of improved voting rights, the pendulum swung the other way. In the 1890s, laws that once again disenfranchised Black voters passed through every state legislature in the Southeast. The intent behind this legislation was explicit; illustratively, the president of the convention for rewriting Missippi’s State Constitution declared at its opening in 1890, “We came here to exclude the Negro.” [10] Conservative, white legislators elected prior to the Civil War and terrified of losing their status at the top of the South’s power structure, felt the winds of change and decided to erect shelters against them. These shelters took form in the shape of Jim Crow.
While true that the fight for equal voting rights has progressed immensely since the Jim Crow Era, swaths of voters of color continually face more obstacles to casting their ballot than their white counterparts. According to a study conducted by The Atlantic and The Public Religion Research Institute, Black and Hispanic voters in 2018 were twice as likely to have experienced common barriers to voting, such as prohibitively long lines at polling stations or allegedly improper voter registration, as white voters [11]. During the pandemic, absentee voting options became more popular, allowing voters of color to circumvent these barriers. People who had issues with obtaining their absentee ballot had time to address the errors in their paperwork; individuals who could not afford to spend hours waiting in line at a polling station could drop off their mail-in ballots when convenient. The result was higher levels of voter turnout across racial groups as compared to the 2016 election, particularly in Southern states [12]. Shockingly, Georgia voted Democrat for the first time since 1992 [13].
Following the high turnout from communities of color, who in general voted for Biden, conservative legislators once again felt a shift in the South’s constituency. Afraid of losing their grip on the South’s political proceedings, these legislators lashed out at the methods by which voters of color gained enfranchisement during the 2020 election: early voting and absentee ballots.
Similar Content: Targeting marginalized groups in all but name
While the modern wave of voter suppression laws refrains from explicitly mentioning race, the legislation will disproportionately impact poor, rural voters of color. The practice of targeting marginalized groups without specifically naming them dates back to the Jim Crow Era, when white legislators engineered methods of disenfranchising Black voters that circumvent the Fifteenth Amendment.
The Jim Crow Era is infamous for legislation that prevented nearly all formerly enslaved people from voting. Poll taxes disenfranchised those who were struggling to escape the poverty that enveloped many newly free Black people, and literacy tests took advantage of the fact that it was previously illegal to teach enslaved people how to read [14]. Returning again to the example of the Mississippi State Constitution, Sections 243 and 244 provided “for a uniform poll tax to be used solely in aid of common schools” and “that, in addition to any other qualifications, every elector must be able to read and write,” respectively [15]. Furthermore, constantly changing rules regarding voter registration disenfranchised new voters without their knowledge [16]. Jim Crow Era legislation thus targeted formerly enslaved people by capitalizing on the widespread poverty, illiteracy, and geographic isolation that plagued the newly free population. However, the Supreme Court ruled, in case after case, that because the laws refrained from discussing race explicitly, they did not violate the Fifteenth Amendment and were thus constitutional [17]. Without a single mention of race, Jim Crow laws, with the help of violence and intimidation from white supremacist groups, wiped out the Black voting bloc.
Similarly, modern-day voter suppression laws avoid any explicit reference to race, geography, or socioeconomic status; nevertheless, marginalized communities will bear the brunt of their burdens. The laws profess concern about the integrity of the election process; however, underneath this rhetoric are methods to substantially limit the nontraditional voting methods from which historically disenfranchised groups benefited in the past election cycle.
For example, Georgia’s omnibus statute claims, “The stress of the 2020 elections, with a dramatic increase in absentee-by-mail ballots and pandemic restrictions, demonstrated where there were opportunities to update existing processes to reduce the burden on election officials and boost voter confidence.” [18] The act claims that in order to accomplish these goals, the number of drop boxes must decrease, the period during which an absentee ballot can be issued must be cut in half, and line-warming practices, such as giving bottles of water or snacks to people waiting to cast their ballot, must cease altogether [19]. In this manner, the Georgia legislature has erected new barriers for rural voters of color by making it more difficult to successfully vote absentee, as many did for the first time in the 2020 election. Now, those who cannot, due to time or money constraints, obtain new IDs and notarized documents cannot receive a mail-in ballot; also, those without access to a car or adequate public transportation cannot drop off their ballots. The ban on line-warming practices makes clear the intent of the law, as constituents who do vote in person, braving the long lines that characterize precincts in predominantly Black and Hispanic counties, must now do so in isolation.
The restrictive bills passed in other Southern states share significant parallels with Georgia’s. Florida’s omnibus bill also prohibits line-warming practices, limits the number of drop boxes for mail-in ballots, and imposes more stringent requirements for absentee ballot applications; Iowa’s omnibus bill does the same, along with reducing the number of in-person voting stations; Arkansas, Kentucky, and Kansas’s laws all shorten the window to apply for mail-in ballots [20]. The net result is a region-wide attack on the mechanisms that made the high voter turnout amongst rural voters of color in the 2020 election possible. Thus, just as in the Jim Crow Era, conservative legislators have passed laws that disenfranchise historically marginalized communities, all without making explicit references to said marginalized communities.
Breaking the cycle: State courts’ responsibility
Clearly, we are not yet living in a “post-racial” society in which every individual has an equal voice in the political process. Despite the discriminatory nature of the laws discussed, it is unlikely that significant action will occur in the short term. An extensive, sluggish appeals process has only just begun, during which time federal courts must review the content of each piece of legislation and assess constitutionality. In the meantime, voters can combat these oppressive laws by doing their best to remain updated about their voting options, educating themselves about the history of voter suppression in the South, and putting pressure on public officials to address these laws. On balance, though, it is now up to state courts to break the cycle that originated in the Jim Crow era and end the pattern of increased voter turnout followed by a wave of voter suppression.
References
[1] Scherer, Zachary. “Majority of Voters Used Nontraditional Methods to Cast Ballots in 2020.” Census.gov, April 29, 2021. https://www.census.gov/library/stories/2021/04/what-methods-did-people-use-to-vote-in-2020-election.html.
[2] Ibid
[3] No. S.B. 1 Tx. Laws 1 (Sept. 7 2021).
[4] The Florida Senate. “SB 90: Elections,” May 6, 2021.
https://www.flsenate.gov/Session/Bill/2021/90/?Tab=BillText.
[5] Brennan Center for Justice. “Voting Laws Roundup: July 2021,” July 22, 2021. https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-july-2021.
[6] Constitutional Rights Foundation. “Race and Voting in the Segregated South.” Accessed October 10, 2021. https://www.crf-usa.org/black-history-month/race-and-voting-in-the-segregated-south.
[7] National Constitution Center. “The 15th Amendment of the U.S. Constitution.” Accessed October 10, 2021. https://constitutioncenter.org/interactive-constitution/amendment/amendment-xv.
[8] Constitutional Rights Foundation. “Race and Voting in the Segregated South.”
[9] US House of Representatives: History, Art & Archives. “Black Americans in Congress.” Accessed October 10, 2021. https://history.house.gov/baic/.
[10] Constitutional Rights Foundation. “Race and Voting in the Segregated South.”
[11] II, Vann R. Newkirk. “Voter Suppression Is Warping Democracy.” The Atlantic, July 17, 2018. https://www.theatlantic.com/politics/archive/2018/07/poll-prri-voter-suppression/565355/.
[12] Scherer, Zachary. “Majority of Voters Used Nontraditional Methods to Cast Ballots in 2020.”
[13] Ballotpedia. “Presidential Voting Trends in Georgia.” Accessed October 10, 2021. https://ballotpedia.org/Presidential_voting_trends_in_Georgia.
[14] University of Michigan. “Techniques of Direct Disenfranchisement, 1880-1965.” Accessed October 10, 2021. http://websites.umich.edu/~lawrace/disenfranchise1.htm.
[15] Secretary of State: State of Mississippi. “Constitution of the State of Mississippi.” Accessed November 3, 2021. https://www.sos.state.ms.us/ed_pubs/constitution/constitution.asp.
[16] University of Michigan. “Techniques of Direct Disenfranchisement, 1880-1965.”
[17] Ibid.
[18] No. S.B. 202 Ga. Laws 4 (Mar. 25, 2021).
[19] No. S.B. 202 Ga. Laws 6, 47, 49
[20] Brennan Center for Justice. “Voting Laws Roundup: July 2021.”