Members Only | April 10, 2021 | Reading Time: 4 minutes

A voting law doesn’t have to mention race to disenfranchise voters according to race

Mia Brett explains why America needs HR1.

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Voting rights have a long complicated history in this country and we’ve never quite achieved the aspirational goal of a true democracy with universal enfranchisement. For much of US history, laws explicitly sought to limit the vote based on race, gender and wealth. Since the passage of the Voting Rights Act in 1965, we as a country at least made universal enfranchisement the explicit goal, if not the reality. Unfortunately, this aspiration faced a major setback in 2013 when the United States Supreme Court invalidated a key section of the Voting Rights Act in the case Shelby v. Holder.

Since 2013, states all over the country, particularly those controlled by Republican legislatures, have scrambled to pass new voter-suppression laws now that they don’t need federal approval. Congressional Democrats have a solution to this problem with the For the People Act, HR1, aimed at restoring the Voting Rights Act and instituting voting reforms to modernize voting across all states. Universal enfranchisement and improving democracy should be a clear bipartisan proposal, but Republican responses are showing voting rights remain an entrenched partisan issue in this country.

The For The People Act is a necessary reform that would curb voter-suppression laws, and help modernize and expand enfranchisement, writes Editorial Board member Mia Brett.

Until the Civil War and the Reconstruction amendments (the 13th, 14th, and 15th), voting rights were mostly left to the states. Voting based on race, gender and property requirements varied from state to state, or election to election. One theory used to limit enfranchisement in early America was that voters should be “disinterested.” Theoretically “disinterested” voters would vote for the good of the whole community because they were wealthy enough to not need to vote in their own self interest.

Based on this theory, some freed Black people who met the property requirements were able to vote in Northern elections and occasionally widows with significant wealth could also vote. However, these groups could usually only vote in local elections and their rights were far from consistent. By the Civil War, enfranchisement had been expanded to most white men, but Black voting rights in the North had become more limited as a result. With the 14th, 15th, and 19th Amendments, the federal government became more involved in voting rights by guaranteeing the vote would not be denied based on race, previous condition of servitude or sex. It was not until the Snyder Act in 1924 that Native Americans were federally guaranteed the right to vote and non-White immigrants were still prevented from naturalization affecting their voting rights until race and gender were removed from naturalization considerations in 1952.

Federal law barred race as a consideration in voting laws after the 15th Amendment but that did not stop the Jim Crow South from passing superficially neutral laws intended to suppress the Black vote in application. Literacy tests, poll taxes, and felon disenfranchisement laws were all used to suppress Black voting rights without ever mentioning race in the text of the law. Literacy tests and poll taxes had “grandfather clause” exemptions to allow white people to vote despite the laws. Felon disenfranchisement laws targeted Black people because they were paired with the criminalization of Black people living in the Jim Crow South. The Voting Rights Act in 1965 made these discriminatory laws much more difficult to pass by requiring that Southern states get federal approval to pass voting reform laws. Unfortunately, since 2013, we are seeing a new wave of superficially neutral racist voter suppression.

Since 2013, states have passed restrictive voter ID laws while closing DMVs and polling places in majority Black neighborhoods. States have also limited early voting and voting hours. None of the laws go out of their way to mention race, but they were still able to target Black voting populations. These state laws also make it more difficult for women, gender non-conforming people and disabled people to vote.

This is what Georgia’s new voting law hopes to accomplish. It may not mention race but the provisions in the law are a clear attempt to restrict Black and marginalized voting. Georgia already has a voter ID requirement and has closed DMVs and polling places across the state. As of 2019, Southern states had closed 1,200 polling places and many Georgia counties only had one. While the newly passed Georgia law expands early voting, it also adds new ID requirements for absentee voting, restricts access to ballot drop boxes, and shortens the time frame to request and return mail-in ballots.

Perhaps the two most egregious provisions in the new law are giving oversight election power to the election board, instead of the secretary of state, and making it illegal to provide food and water to those waiting in line. The argument is that providing food and water could be seen as influencing the voter but really it’s just to make it harder for people to stand in line waiting to vote. Increasing the power of the state election board also increases the power of the Republican-controlled legislature.

The For The People Act is a necessary voting reform that would curb voter-suppression laws being passed all over the country and help modernize and expand enfranchisement. Republicans oppose the act by claiming it’s an example of federal overreach or just admitting that it will hurt Republican chances of winning elections.

Even with the passage of HR1, universal enfranchisement is still a long way off. It would still permit voter ID laws that could disenfranchise groups. Polling places still won’t be made universally ADA-compliant and the incarcerated will mostly still be disenfranchised. However, with the restoration of the Voting Rights Act, modernizing voter registration, early and mail-in voting and felon enfranchisement, the For The People Act act would be a huge leap forward in the goal of universal enfranchisement.

Mia Brett

Mia Brett, PhD, is a legal historian who writes about the construction of race and gender in American history. She lives with her dog Tchotchke. You can find her tweeting @queenmab87.

Published in cooperation with Alternet. 

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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