The Supreme Court's rollback of the 1965 Voting Rights Act this morning was based in history, in part on arguments that the law was obsolete. In his opinion, Chief Justice Roberts compared America in 2013 to the nation that first passed the law in the mid-1960s:
Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5’s restrictions or narrowed the scope of §4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger.
Is that true? New York University's Brennan Center for Justice claimed in late April that 31 state legislatures have introduced bills in the past year designed to restrict voting rights. Most of those included rules about picture identification, narrowing early and absentee voting opportunities, and canceling same-day voter registration programs. The Brennan Center is a liberal think tank focused on voting rights.
Voter suppression stories were in the news in the weeks before the court announced the Voting Rights Act ruling. Earlier this month, two state legislators in Ohio released a study claiming "tens of thousands" of voter suppression efforts in their state during the 2012 election cycle.
The Ohio accusation has provoked, predictably, a heated debate about its numbers. And the Brennan Center notes that even more states, 45, have introduced bills that would make it easier, not more byzantine, to vote. (What? 31 + 45 = more than 50 states. In some cases, the restrictive and less restrictive bills were responses to each other.)
The politics of the 5-4 decision don't seem to have changed much from the era of the Voting Rights Act's birth. We know that because in the last decade, a trove of recordings of the negotiations over both the 1965 Voting Rights Act and the preceding Civil Rights Act of 1964 have become available, and are easily accessed in digital archives. The below exchange, between then President Lyndon Johnson and civil rights leader Martin Luther King, Jr, is typical. And striking: The banter between the two men, about partisan politics and propaganda strategy, sounds like any vote-counting exercise you might encounter on Capitol Hill today. It's worth a listen, if only to recall the work that went into the law the court just eviscerated. Below, an excerpt. Note King's skill as a lobbyist. Johnson, a talker, goes on and on with the legislative inside baseball. King swiftly agrees with everything. After letting Johnson unburden himself for quite some time, King, finally, almost as an afterthought, mentions a single statistic to Johnson—the black populations in the states Johnson won in the last election. The message is delivered so subtly Johnson probably thought it was his idea: no Voting Rights Act, no black vote. No black vote, no more President Johnson.
Johnson: I'll tell you what our problem is. We've got to try with every force at our command—and I mean every force—to get these education bills that go to those people [with] under $2,000 a year [of] income, 1.5 billion [dollars]. And this poverty [bill] that's a billion, and a half and this health [bill] that's going to be 900 million [dollars] next year right at the bottom. We've to get them passed before the vicious forces concentrate and get them a coalition that can block them. Then we have got to—so we won't divide them all and get them hung up in a filibuster. We've got to—when we get these big things through that we need—Medicare, education—I've already got that hearing started the 22nd in the House and 26th in the Senate. Your people ought to be very, very diligent in looking at those committee members that come from urban areas that are friendly to you to see that those bills get reported right out, because you have no idea—it's shocking to you—how much benefits they will get. There's 8.5 billion [dollars] this year for education, compared to 700 million [dollars] when I started. So you can imagine what effort that's going to be. And this one bill is a 1.5 billion [dollars]. Now, if we can get that and we can get a Medicare [bill]—we ought to get that by February—then we get our poverty [bill], that will be more than double what it was last year.
Johnson: Then we've got to come up with the qualification of voters. That will answer 70 percent of your problems.
King: That's right.
Johnson: If you just clear it out everywhere, make it age and [the ability to] read about write. No tests on what [Geoffrey] Chaucer said or [Robert] Browning's poetry or constitutions or memorizing or anything else.
Johnson: And then you may have to put them in the post office. Let the Postmaster—that's a federal employee that I control who they can say is local. He's recommended by the Congressmen, he's approved by the Senator. But if he doesn't register everybody I can put a new one in.
Johnson: And it's not an outside Washington influence. It's a local man but they can all just to go the post office like they buy stamps. Now, I haven't thought this through but that's my general feeling, and I've talked to the Attorney General, and I've got them working on it. I don't want to start off with that any more than I do with 14-B because I wouldn't get anything else.
King: Yes. Yes. [Unclear.]
Johnson: Do you—And I don't want to publicize it, but I want—that's—I wanted you to know the outline of what I had in mind.
King: Yes. Well, I remember that you mentioned it to me the other day when we met at the White House, and I have been very diligent in not ... making this statement.
Johnson: Well, your statement was perfect about the vote's important, very important. And I think it's good to talk about that. And I just don't see how anybody can say that a man can fight in Vietnam but he can't vote in the post office.
King: And it's very interesting, Mr. President, to notice that the only states that you didn't carry in the South, the five Southern states, have less than 40 percent of the negroes registered to vote. It's very interesting to notice. And I think a professor at the University of Texas, in a recent article, brought this out very clearly. So it demonstrates that it's so important to get Negroes registered to vote in large numbers in the South. And it would be this coalition of the Negro vote and the moderate white vote that will really make the new South.
Johnson: That's exactly right. I think it's very important that we not say that we're doing this, and we not do it just because it's negroes or whites. But we take the position that every person born in this country and when they reach a certain age, that he have a right to vote, just like he has a right to fight. And that we just extend it whether it's a negro or whether it's a Mexican or who it is.
King: That's right.