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When the Right to Vote is No Longer a Right

In 1965, when the Voting Rights Act was first passed, the reasoning was very simple. Racial discrimination in voting should not be allowed. The Act was short term. It was set to expire in 1970. The theory was that enough black people would have become voters and enough fair minded representatives would be elected, to ensure that rights would be protected. That was soon considered to be unrealistic.


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Later sessions of Congress extended the Voting Rights Act again and again. In 2006, conservatives offered new resistance, but the act was renewed by a healthy margin for another 25 years. Racial discrimination in voting would not be allowed.

When the Supreme Court recently decided that parts of the long standing Voting Rights Act were no longer constitutional, it was because it violated a standard of equality. It wasn’t that every voter should be considered equal. In fact, that original intent of the Voting Rights Act was pretty much bypassed. The standard was rather that every state should be considered equal.

That wasn’t a new idea. One of the objections that conservatives angrily raised back in 1965 was that the Voting Rights Act was unfair to states. The burden of proof before 1965 was on anyone who wanted equal rights. Local politicians lost records and insisted that coincidence accounted for those disparities that remained. Local judges were often hostile to minority rights. Foot dragging meant that years could pass before burdens of proof could be met.

In 1903, in Giles v. Harris, the Supreme Court ruled that it was illegal to enforce amendments to the constitution that were supposed to prevented voting discrimination. It was a violation of states’ rights to force registrars in the south to process voting registrations.

The provision of the Voting Rights Act to which conservatives objected the most named specific states, and specific parts of other states, those with the most vicious history of voting suppression, for special supervision. Conservatives thought that was unfair. Discrimination should be proven at every election cycle, not presumed because of past history.

In 2013, the Supreme Court agreed that the provision was unconstitutional. The reasoning was split, but two lines of logic seemed to prevail.

One was a new principle of “sovereign equality” which held that no state should be held to special scrutiny without meeting a standard of proof. The standard was that specific intent of racial discrimination had to be proven. So we were back at the beginning.

The other line of reasoning was a sort of Catch-22. Justice Antonin Scalia suggested that the fact that the Voting Rights Act was passed, passed so many times, passed by increasing margins, was proof that the Voting Rights Act was no longer needed. That made it unconstitutional. A law popular enough to be passed repeatedly was too popular to be legal.

Racial discrimination in voting was now legal as long as racist intent was not proven. Oops became a viable defense. But, in Texas, something interesting happened. Emails surfaced showing that, sure enough, legislators had deliberately made voting really hard for Hispanic voters. And they had made it hard simply because those voters were Hispanic. Oops was not oops after all.

Federal officials pushed for more evidence. Texas legislators adopted a none-of-your-business principle. They wanted official emails, official notes, and other official correspondence to be off limits. Courts looked at the evidence, saw clear racial intent, and ruled that Texas had to stop discriminating against Hispanic voters. The oops defense had failed.


In Georgia, a citizens group had gathered thousands of new voter registrations and turned them in. That’s harder than you might think. There are a ton of restrictions.

In some past cases, conservatives had gotten minority voter registrations. New voters got to the polls and discovered they were not registered after all. The conservatives had thrown away the registrations rather than turn them in.

So registrations are now tracked. The law pretty much everywhere says you have to turn in every voter registration you take out. If someone signs a phony name or a joke name you have to turn it in.

The group in Georgia policed the registrations and were careful not to allow jokesters to mess around with the process. They turned in tens of thousands of new registrations on time and in due order. When a Republican official in Georgia didn’t process the new registrations, the group sued.

Conservatives have been justifying their harsh new voter restrictions as preventing voter fraud. The problem with that argument is that intense efforts to track down examples of voter fraud have produced so few cases in lots of years, it has become kind of a silly excuse. So the conservative definition of voter fraud is expanding.

In Arizona, a young Hispanic man delivered a whole lot of absentee ballots. It is a practice exercised legally by conservative groups around the country all the time. But his group has been accused in conservative circles of ballot stuffing.

A get-out-the-vote party in Wisconsin is the target of angry conservatives who are calling fraud. “They’re dragging people to the polls offering them BBQ and smokes.”

The right to vote is increasingly referred to as a privilege. That hostile reasoning is permeating through legislatures. It seems to be settling on the courts as well.

The Supreme Court has overturned district jurists in Texas. The state can discriminate against Hispanic voters after all. In Georgia, a district judge has ruled that the court can’t force the state to process those thousands of legitimate voter registrations.

So . . . we are now back to 1903 and Giles v. Harris.

After all, states do have rights.

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Posted by on November 2, 2014. Filed under COMMENTARY/OPINION. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry
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14 Responses to When the Right to Vote is No Longer a Right

  1. Marsha Woerner Reply

    November 2, 2014 at 11:53 am

    It was pointed out to me at one point that voting itself is NOT a constitutional right, although I don’t know that that’s well known! I personally think that “we” need a constitutional amendment to ensure that it is, in fact, a constitutional right, and then all of these voter ID and group and individual discriminations can be fought from a solid base! So I think that that the two constitutional amendments that should be foremost in most citizens’ minds should be:
    1: In order to be considered a citizen with freedom of speech and other rights of a citizen, you have to 1st be a PERSON, NOT a corporation!
    2: All citizens of the USA who are at least 18 years old have the right to vote in all federal elections! (You note that that does not allow for felons to no longer be allowed to vote!)

  2. Michael John Scott Reply

    November 2, 2014 at 12:22 pm

    Convicted felons, whether they’ve served their sentence or not, should never be allowed to vote. Naturally I despise all criminals, past, present and future, so my thought might be somewhat biased. As to the Supreme Court I’m still puzzled by their twisted, purely partisan ruling.

    • Marsha Woerner Reply

      November 2, 2014 at 1:14 pm

      As you might guess from my original post, I don’t agree. Part of it is based on the range of what we call “felons”. The range is huge, from a murderer/torturer to a nonviolent drug offense. Perhaps there should be some limits, but I don’t agree that no felons should never be allowed to vote

      • Michael John Scott Reply

        November 2, 2014 at 4:50 pm

        We’re on the same page Marsha. See my response to “anonymous” which is Bill Formby.

    • Anonymous Reply

      November 2, 2014 at 3:57 pm

      Mike, pardon me if I disagree old buddy but there are felonies and there are felonies. Given the arbitrary way that the drug laws are written and enforced there are literally millions of young people who would be disenfranchised by your standard. Major felonies I would agree but even those should have a point at which we stop punishing the person. If a person commits a burglary at 20 years of age and spends 5 years in prison it is just to to takes this persons civil rights away for the rest of his life if s/he never commits another offense. If a person pays for the crime and never offends again that means the system has worked but you want to continue to hate on them and punish them.

      • Michael John Scott Reply

        November 2, 2014 at 4:49 pm

        No fan of felons although my comment was a knee jerk reaction. I’ve spent my life dealing with these low life scum that I forget that some get caught in an occasionally unfair system. I agree there needs to be some “measure” whereby certain offenses do not forfeit one’s right to vote.

  3. Lyndon Probus Reply

    November 2, 2014 at 12:29 pm

    I’m not so convinced it’s always about the Blacks, although the Voting Rights Act certainly was. I think, however, too much time is spent dwelling on the lot of the African American. Comprising less than 13% of the population, while demanding 50% of the jobs, and managing a startling 47% of the prison population, African Americans need to be thankful that the days of Jim Crow are over and start embracing the many opportunities available to them, especially the right to vote.

    There is much left to be done but people of all stripes need to be responsible for their own lots in life and stop blaming everyone else. I agree that Hispanics are more disenfranchised in certain parts of the country, particularly the Southwest. These individuals make up almost half of the US population and yet governments are continuing to devise schemes to deprive them of their right to vote.

    Both populations are here to stay, and while Hispanics appear to have a strong work ethic and an iron will when it comes to integrating into society, Blacks still have a long, long way to go and it’s time we stopped enabling them. I know that some will construe this as some sort of racist rant, but it is not. Telling the truth takes courage sometimes, but the truth must be told. Forgive me if I’ve brought insult, as it is not my intent.

    • Bill Formby Reply

      November 2, 2014 at 5:36 pm

      Lyndon, while I think I understand your point,, sorta, but is your thinking really so shallow that you truly think that Blacks are committing 47% of the crime. One thing that we in this country have never really faced in this country is the reality of dealing with the African Americans in our society. There will be many like you, Mike, and perhaps the majority of the population of this country who will argue with that statement, but it is inevitably true. The Euro Americans sit back and say with a certainty that we have done all we needed to do, but the one thing we have never done is truly integrate them into the American culture possibly because they clearly stand out more than other immigrants to this country. Since the civil war and emancipation they have stood out among a country of whites and easily targeted by a white majority. For the most part they were dealt with and treated like live stock for over a hundred years in this land. All of them did not even come from the same cultures in Africa but they thrown into one big heap here and expected to simply do labor.
      Next year it will be 150 years since the end of the Civil War and the expectations are that they should now be fully integrated into society but, here again, they are not because they are easily identified as different. Until the 1950’s they were kept completely separate from us in the education system, in housing, and, at least in the South, by laws that kept them from socially interacting with us. Being from the South I still remember the separate water fountains, separate restrooms, and separate dining rooms ate restaurants (if they were allowed there at all). In the late 1960′ when I was a police officer in Tuscaloosa, AL when had different jail areas for Blacks and Whites. So, at a minimum, the American society spent more than than a hundred years openly telling the African Americans that they were less than us. They were not worthy of the equality bestowed upon them 100 years before.
      Some took advantage of what opportunities were available and began to make a good life for themselves. Many of them have made the best they could out of their lot in life and have taken what jobs are available and have begun pushing their children to do better they they were able to do. Many became victims of their own cultural lifestyle which was negatively influenced by the Aid to Dependent Children which tended to push men from the home. That began a negative slide for many African Americans into a culture of dependence. Most are still trying to break free of it or at least get their children out of it, but combined with the negative stereotypes and lack of resources many simply give up. Of course there are Whites and Hispanics that have been caught up in that same trap as well and are faring no better. One needs only to look at the gangs of the large cities to see the situations of a lot of the black and brown minorities, or look to the reservations to see what has become of those that once lived free on these lands.
      Lyndon, consider that all of the street crime put together cannot begin to approach the damage done by the corruption concocted by corporate and wall street sharks only you rarely see them in jail or prison. In the sub prime loan scandal that sent this country into a near depression and caused thousands of families to be homeless how many went to jail? Answer, none. Instead, the government had to bail out the banks that were to big to fail. The government gives $4 billion a year to the oil industry despite their record profits, yet no one is calling them irresponsible or welfare cheats. Big farmers, including some of those in congress, still get farm subsidies every year that are not needed, but no one says that we are enabling them. Letting the children of poor working families go without health care is far more tragic than any of this. OK, enough of this rant. You are probably right but my conscience feels a hell of a lot better, how about yours.

  4. Bill Formby Reply

    November 3, 2014 at 3:17 am

    No problem Mike. I am not looking for a fight on this but how are we ever going to move past this until people start looking at some of the other facts as well as those that of yours. Plus the fact that the vast majority of the violent crime is black on black crime including serious domestic violence crime. The other issue which I found on my own study was that violent crime increases in areas where people live in more congested areas such as housing projects. This is true for both blacks or whites. By contrast the violence level drops for both in more rural settings. Reviewing the data I have collected so far in Dallas County, Alabama the findings are very similar.

  5. Norman Rampart Reply

    November 3, 2014 at 1:35 pm

    Perhaps stopping referring to people as ‘African American’ or ‘Italian Americans’ or whatever might help a bit?

    Just call em Americans eh?

    It’s starting over in Blighty too… “I’m a Pakistani British man” – no you aren’t sunbeam…you’re British or you’re in the wrong place…

    In my experience when people ‘belong’ somewhere they tend to ‘behave’ properly. When they feel they don’t belong or are treated as if they haven’t the same rights as others they react badly. Sometimes you have to ‘help’ them belong by sort of making them ‘a la’ what I just said above.

    I know! I always look for simplicity don’t I? 😉

    • Michael John Scott Reply

      November 3, 2014 at 4:24 pm

      They are the ones insisting on the titles. Not the rest of America.

      • Norman Rampart Reply

        November 4, 2014 at 10:10 am

        Ahh! Well, in that case, they should be asked whether they are American? If so fine and dandy, if not why are they living there as American citizens?

        There’s nowt wrong with honouring and believing in your ‘roots’ etc but if you are American you are American. Your loyalty must be to your country ultimately.

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