Why Supporters of Voter ID Laws Should Have To Answer for the Ugly History of Jim Crow

The law, lawyers, and the court.
Oct. 20 2011 6:32 PM

A Fraudulent Case

The ugly parallels between Jim Crow and modern vote-suppression laws.

African-Americans line up to vote in a school gymnasium in the presidential election November 4, 2008 in Birmingham, Alabama.
African-Americans line up to vote in the 2008 presidential election

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.

At first glance, it’s hard to argue with the goal of reducing corruption and fraud in the election process. Even those who oppose the new provisions would agree that voter fraud is a bad thing. But as Ari Berman recently reminded us (again), there is no evidence for widespread vote fraud, despite Bush administration efforts to find some:

After taking power, the Bush administration declared war on voter fraud, making it a “top priority” for federal prosecutors. In 2006, the Justice Department fired two U.S. attorneys who refused to pursue trumped-up cases of voter fraud in New Mexico and Washington, and Karl Rove called illegal voting “an enormous and growing problem. …[Yet] a major probe by the Justice Department between 2002 and 2007 failed to prosecute a single person for going to the polls and impersonating an eligible voter, which the anti-fraud laws are supposedly designed to stop. … A much-hyped investigation in Wisconsin, meanwhile, led to the prosecution of only .0007 percent of the local electorate for alleged voter fraud.

In short, if we want to fight imaginary problems, we’d be better off going after the scourge of exploding drummers.

Even more remarkable than the similarities of the techniques being used to suppress minority voting today is that the reasons for introducing all of these new rules echo the pretextual rationales of the Jim Crow era.  These are the very same justifications white southerners offered for their disfranchisement efforts more than a century ago. As historian C. Vann Woodward put it in Origins of the New South, “Repugnance for corrupt elections was put forward everywhere as the primary reason for disfranchisement.” The call for the Australian ballot—the secret ballot that would effectively disfranchise the more than half of African-American men who could not read in 1900 (not to mention the 20 percent of whites who would lose the vote if the tests were fairly administered)—was a call for a fair ballot, one free of the influence and corruption that it was thought would inevitably follow from allowing the uneducated to vote. Reformers concerned with fraud instituted the secret ballot in 38 states in the final 12 years of the 19th century—with northern whites as worried about immigrant “hordes” and the "inferior" races of new possessions in the Caribbean and Pacific as southern whites were about African-Americans.

Of course, back then such claims were deeply bound up with white supremacy and the corrupt practices of white politicians jockeying for black or immigrant votes. And the anti-fraud rationale went hand-in-hand with explicit and open calls for white supremacy. No longer is it politically palatable to declare, as a Virginian who did at the turn of the 20th century, that one intends “to disfranchise every negro that [one can] … and as few white people as possible.” Now we simply have conservatives like Paul Weyrich elliptically telling evangelicals in 1980: “I don't want everybody to vote.”

Not only are the stated “anti-fraud” justifications for this new crop of voter restrictions the same as they were in 1890, but the underlying goal of these restrictions is also unchanged: to shape an electorate that will vote for particular kinds of politicians. In a country with hugely shifting demographics, that problem is as urgent as it was a century ago for so-called “reformers.” In the Jim Crow era, the impulse for disenfranchisement came from the Democratic Party, which used new restrictions on black voters to become the Solid South. Today, it is the Republican Party capitalizing on the remnants of Jim Crow to restrict the votes of the poor and minority communities most likely to vote for Democrats. It is the same impulse we see when Rick Santorum says that if Republicans could only eliminate single mothers, more Republicans will be elected. It’s a way of saying some voters simply count more than others. The Constitution is quite clear, at least where race is concerned, that the opposite is true.

Voting is a right, and when the state erects barriers to the exercise of fundamental rights, the means should match the stated ends. In the case of vote fraud we are attempting to eradicate a problem that doesn’t exist with horribly expensive measures that will not fix it. In the process we are enshrining a revived Jim Crow.  

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. Follow her on Twitter.

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