In the 1940s, for the first time, the Supreme Court began enforcing the 14th and 15th amendments. In 1944 it outlawed all-White primaries. In 1946 it ruled that state laws requiring segregation on interstate buses were unconstitutional. In l950 it required Oklahoma to desegregate its schools. And in 1954 it declared all segregated schools inherently unequal.
The South proved intransigent, notwithstanding President Eisenhower sending federal troops into Little Rock to integrate Central High School in 1957, the first time federal troops were deployed in the South since 1877. Civil rights lawyer Michelle Alexander notes that ten years after the Brown v. Board of Education decision not a single Black child attended an integrated grade school in South Carolina, Alabama or Mississippi. Five southern legislatures passed 50 new Jim Crow laws. White citizens councils formed in almost every town. The Ku Klux Klan reasserted itself.
But in the 1960s two new factors came into play. One was the advent of television which allowed the whole country to see Southern police using fire hoses and beating peacefully protesting Blacks. The other was the rise of a large civil rights movement. “In the absence of a massive, grassroots movement directly challenging the racial caste system, Jim Crow might be alive and well today,” Alexander writes. “Between autumn 1961 and spring 1963 20,000 men, women and children had been arrested [in civil rights protests]. In l963 alone, an additional 5,000 were imprisoned. One thousand desegregation protests occurred across the region in more than 100 cities.”
In 1963 President John Kennedy announced he would introduce a civil rights bill. In January 1964 the Twenty Fourth Amendment banned the use of poll taxes in federal elections. In July 1964 President Johnson signed the Civil Rights Act, which prohibited segregation in public places and barred unequal application of voter registration requirements.
In 1965 the Voting Rights Act passed. The Act outlawed literacy tests and provided for federal oversight. Section 5 required states and counties, inside and outside the South, with histories of voter discrimination against minorities to obtain approval from the Department of Justice before changing their voting laws.
The percentage of African American adults registered to vote soared. From 1964 to 1969 the rate in Alabama jumped from 19.3 to 61.3 percent, in Mississippi from 6.7 percent to 66.5 percent, in Georgia from 27.4 percent to 60.4 percent.Nevertheless, 15 years after the passage of the Voting Rights Act only 8 percent of all Southern elected officials were Black, about half the proportion that had held office a century earlier.
Mass Incarceration: The New Jim Crow
As barriers to voting and discrimination against social and economic discrimination fell one by one Blacks, and increasingly Latinos, found themselves facing still another barrier to full citizenship: mass incarceration. In her book, The New Jim Crow, Alexander makes a persuasive case that the unprecedented growth in our prison population since the 1970s has been motivated by racial animus. John Erlichman, special counsel to Nixon has described Nixon’s 1968 law-and-order Southern strategy as aimed at “the anti-Black voter”. Political scientist Vesla Weaver maintains, “Votes cast in opposition to open housing, busing, the Civil Rights Act and other measures time and again showed the same divisions as votes for amendments to crime bills….”
Ronald Reagan kicked off his Presidential campaign at the annual Neshoba county fair near Philadelphia, Mississippi the site of the 1964 murder of three civil rights activists, declaring, “I believe in states’ rights.”
In October l982 Reagan kicked off a new war on drugs. At the time only 2 percent of the American public believed drugs were a major problem. Between 1981 and 1991 the Drug Enforcement Agency budget leaped from $86 million to $1 billion.
Until 1988 the maximum prison sentence for possession of any amount of any drug was one year. The 1988 Anti-Drug Abuse Act imposed dramatically longer mandatory sentences. In 1994 Bill Clinton upped the ante, sending a $30 billion crime bill to Congress and embracing a “one strike and you’re out” policy in which authorities could evict any public housing tenant if a family member allows any form of drug related activity to occur in or near public housing. Congress imposed a lifetime ban on eligibility for welfare and food stamps for anyone convicted of a felony drug offense, even simple possession of marijuana. Students could become ineligible for loans if convicted of a drug offense.
From 1980 to 2000 the number of people in prisons or jails soared from 300,000 to more than 2 million.
Two thirds of the rise in the federal inmate population and more than half of the rise in state prisoners was for drug offenses. And as of 2005 as much as 80 percent of drug arrests were for possession.
Human Rights Watch reported in 2000 that in seven states African Americans constituted 80-90 percent of all drug offenders sent to prison. In at least 15 states Blacks were admitted to prison on drug charges at a rate of 20-57 times greater than White men even though the majority of illegal drug users and dealers are White.
By the end of 2007 more than 7 million American were behind bars, on probation or parole. Less than two decades after war on drugs began 1 in 7 Black men nationally have lost the right to vote and as many as one in four in some states. As legal scholar Pamela Karlan has observed, “felony disenfranchisement has decimated the potential Black electorate”.
The Supreme Court once again refused to enforce the Constitution by deciding in case after case that clear statistical evidence of racial bias in arrests or jury selection or judicial verdicts was not enough. The complainant had to prove intent.
Following the 2000 election, it was widely reported that had the 600,000 people convicted of felonies who had completed their sentences in Florida been allowed to vote Al Gore would have easily won the state and the presidency.
In 2008 a Black man was elected President and re-elected in 2012. In 2012 more than 70 percent of Latinos and over 90 percent of Blacks voted for Obama. Outside of the South he won about 45 percent of the White vote. But in the South he received, on average, only about 20 percent and only 10 percent in Mississippi and Alabama.
The Struggle Continues South and North
Indeed, despite Obama’s re-election and Democrats’ gains in other states, the Republican control of the South tightened. For the first time since Reconstruction, Republicans took over the Arkansas legislature, and won the state’s last U.S. House seat held by a Democrat. North Carolina elected a Republican governor and Republicans gained three more Congressional seats. The last Democrat in a statewide office in Alabama was defeated.
In most Southern states, the margins of victory for Mitt Romney were even larger than the lopsided margins for John McCain four years ago. New York Times reporter Campbell Robertson observed, “The racial and partisan divide is nearly absolute in the Deep South, with a Democratic Party that is almost entirely Black and a Republican Party that is almost entirely White.”
Within two weeks of the election there were reports of, “Petitions (for secession) from Alabama, Florida, Georgia, Louisiana, North Caroline, Tennessee and Texas residents have accrued at least 25,000 signatures, the number the Obama administration says it will reward with a staff review of online proposals.” Texas Representative Ron Paul, Former Republican president candidate, lauded the petitions, declaring, “secession is a deeply American principle.”
Meanwhile the Supreme Court has retreated from its aggressive defense of voting rights. In 1966 the Warren Court struck down a $1.50 tax imposed on each voter (equivalent to about $10.50 today). Legislators in southern states defended the tax as a way to prevent “repeaters and floaters” from committing voter fraud. The Court ruled that voting is a fundamental Constitutional right and thus the burden was on the state to prove that a discriminatory law was necessary. It argued that a “payment of a fee as a measure of a voter’s qualifications” violates the equal protection clause of the 14th Amendment by unfairly burdening low income, mostly Black voters.
In 2007, in a case involving an extremely restrictive voter photo ID law in Indiana, the Roberts Court turned the Warren Court’s 1966 decision on its head by deciding that the burden of proof now rests on those discriminated against to disprove “every conceivable basis which might support” the discrimination. Indiana offered no evidence to support the need for a photo ID. Indeed, it was unable to identify a single instance of in-person voter impersonation fraud in all of its history. The Court acknowledged that as many as 40,000 voters could be at risk because they would have to bear the cost of traveling to distant locations and paying up to $12 for a birth certificate or upwards of $100 for a passport to obtain such an ID, a far greater financial penalty than that imposed by the southern poll tax.
The Roberts Court decision unleashed a wave of voter restriction laws. Thirty states now have voter ID laws, many of them requiring a government-issued ID.
President Obama did win re-election, but the context of that victory is instructive. Elizabeth Drew writes in the New York Review of Books, “On election day, a nationwide coalition of lawyers manned five thousand call centers around the country. Its phone line 1-866-OUR-VOTE…was flooded with almost 100,000 calls from distressed voters saying that they had been told at the polling places that they weren’t eligible to vote, even though they had registered.” Some waited in line for 6 hours or more to exercise their right to vote.
In December 2011 the Department of Justice invoked the Voting Rights Act to block South Carolina’s voter ID law. In August 2012 a three judge panel unanimously held that Florida could not slash its early voting period, citing the Voting Rights Act. After the election this year, the former chairman of the Florida Republican Party, in an interview with the Palm Beach Post noted that he went to several meetings in which Republican officials discussed the damage that early voting, which brought an unprecedented number of Blacks to the polls in 2008, had done to the party.
In August another three-judge panel unanimously ruled that Texas’ new state legislative and congressional districts diluted minority voting strength, citing the Voting Rights Act.
Three days after the 2012 election the Roberts Court announced it will hear Shelby County, Alabama’s challenge to the Voting Rights Act. Most observers predict it will overturn the requirement that states gain Department of Justice (DOJ) approval for voting changes.
By all means go see the movie Lincoln. You can even go out cheering the January 1865 victory. But realize that the movie’s triumphal ending did not mark the end of the struggle to gain full citizenship for Blacks and other minorities, but only the beginning. Today minorities no longer confront poll taxes and the Ku Klux Klan but newly imposed voting restrictions and racially biased drug laws and a Supreme Court that is indifferent or outright hostile to the rights of minorities. Gridlocked Washington will not come to the rescue. But much of the problem lies at the state level. We need a new massive grassroots struggle such as that which arose in the 1950s and the 1960s, this one to overturn draconian and racially biased laws and to eliminate the new wave of law that hamper voter participation. The struggle continues.
By; David Morris