A Fraudulent Case
The ugly parallels between Jim Crow and modern vote-suppression laws.
Posted Thursday, Oct. 20, 2011, at 6:32 PM
Photograph by Mario Tama/Getty Images.
An elderly black woman in Tennessee can’t vote because she can’t produce her marriage certificate. Threatening letters blanket black neighborhoods warning that creditors and police officers will check would-be voters at the polls, or that elections are taking place on the wrong day. Thirty-eight states have instituted new rules prohibiting same-day registration and early voting on Sundays. All of this is happening as part of an effort to eradicate a problem that is statistically rarer than heavy-metal bands with exploding drummers: vote fraud.
Many commentators have remarked on the unavoidable historical memories these images provoke: They are so clearly reminiscent of the Jim Crow era. So why shouldn’t the proponents of draconian new voting laws have to answer for their ugly history?
Proponents of reforming the voting process seem blind to the fact that all of these seemingly neutral reforms hit poor and minority voters out of all proportion. (The Brennan Center for Justice estimates that while about 12 percent of Americans don’t have a government-issued photo ID, the figure for African-Americans is closer to 25 percent, and in some Southern states perhaps higher.) The reason minorities are so much harder hit by these seemingly benign laws has its roots in the tragic legacy of race in this country. They still work because that old black man, born into Jim Crow in 1940, may have had no birth certificate because he was not born in a hospital because of poverty or discrimination. Names may have been misspelled on African-American birth certificates because illiterate midwives sometimes gave erroneous names.
It’s true that the most egregious methods of minority vote suppression from the 19th century—the poll tax, the literacy test, the white primary—have disappeared. And we know (and can take some solace in the knowledge) that the worst of these indignities have not been recycled in the 21st century, in part because of the protections of the 1965 Voting Rights Act. But a look at the history of voting rights in this country shows that the current state efforts to suppress minority voting—from erecting barriers to registration and early voting to voter ID laws—look an awful lot like methods pioneered by the white supremacists from another era that achieved the similar results.
One device that was particularly effective was to require voters to register periodically and to make the registration process more elaborate than might seem necessary. (These rules were then often relaxed for white voters.) Residency requirements, both within and outside the South, had the same, intended, effect of simply keeping people off the rolls. Under one law passed in Indiana in 1917, for example, the applicant had to specify the material his house was made of, his nearest neighbor’s full name, and other proofs of residency. And of course then, as now, misinformation about registration and voting requirements, directed to some constituents and not to others, was a popular device for selective disfranchisement.
Risa L. Goluboff is professor of law and history at the University of Virginia and the author of The Lost Promise of Civil Rights.
Dahlia Lithwick writes about the courts and the law for Slate.