Rule by the minority

When voting is not only mistrusted but threatened, a democratic order may well fail. That seems to be the goal of many people who continue to question the outcome of the 2020 presidential election. Every election has some irregularities, but no evidence has emerged that the election was rigged, and this after numerous recounts confirmed the original outcome. Over 60 fruitless lawsuits, all demanding invalidation of the election results, failed.

A far more dangerous threat, according to the Brennan Center at Columbia University, comes from the 18 states that have enacted 30 laws this year to make it harder for Americans to vote. All are Republican-controlled, and several more states are contemplating the same. These laws decrease the number of early voting days, reduce or eliminate drop boxes, close several polling places, and even criminalize those who offer food or drink to those waiting to vote.

Writing recently in the Boston Globe, guest columnist Jyoti Jasrasaria, an attorney with the Perkins Coie law firm’s political law group, noted that even Massachusetts has voting problems. The commonwealth, she noted, “doesn’t allow all voters to vote absentee, it cuts voter registration off 20 days before Election Day, and its voter rolls are out of date.” One proposal before the assembly, known as the Voting Opportunities, Trust, Equity, and Security, or VOTES, Act, would remedy many of these problems.

Meantime, the states this fall will begin the process of redesigning congressional districts for the next decade. Also writing in the Globe, Haydenville journalist and senior fellow at Fair Vote David Daley proclaimed “Why your vote may not count after redistricting.” He notes that while “Democratic U.S. House candidates won 1.4 million more votes than Republicans in 2012,” Republicans held a 234 to 201 majority. And the same will recur in 2022 after redistricting this year. So much for majority rule, and thus the rise of minority rule.

The bedrock foundation of democracy lies within three provisions of the First Amendment (1791) as originally understood: freedom of speech, press, and assembly. The 15th Amendment (1870) guaranteed the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The amendment concluded that “Congress shall have the power to enforce this article by appropriate legislation.”
All well and good. Except Jim Crow laws and the Black Codes enforced segregation and voter suppression. Following the 15th Amendment’s ratification, a majority or near majority of voters in the South were Black, but by 1914, only 2 percent were.

It took 95 years for Congress to get around to fully implementing the amendment’s promise when, on August 6, 1965, it passed the Voting Rights Act. Congress reaffirmed the measure several times: the last time was in 2006, by overwhelming majorities: 390-33 in the House, unanimously in the Senate. 

At his signing ceremony, President George W. Bush honored the memory of civil rights leaders Fannie Lou Hamer, Rosa Parks, and Coretta Scott King. He noted, “Today, we renew a bill that helped bring a community on the margins into the life of American democracy. My administration will vigorously enforce the provisions of this law, and we will defend it in court.” Three presidents before him, all Republicans, Richard Nixon (1970), Gerald Ford (1975), and Ronald Reagan (1982), also reauthorized the act.

The law eventually identified nine states. 12 cities, and 37 counties, mostly in the South, with long histories of discriminating against racial minorities voting. If officials in these jurisdictions wanted to modify their election procedures, they first had to secure “preclearance” from the Justice Department. The last time Congress updated the list of covered jurisdictions was in 1972.

Twenty-one years later, the Supreme Court gutted the act. Chief Justice John R. Roberts Jr. ruled that “Congress could have updated the coverage formula [in 2006] but did not do so. Its failure to act leaves us today with no choice but to declare” preclearance “unconstitutional.” Among the 18 states that recently passed voter restriction laws are some of the original nine required to obtain preclearance from the Justice Department.

Congress has an opportunity to remedy the problem of minority rule if it passes the John Lewis Voting Rights Advancement Act, named for the late Georgia representative and civil rights activist. The law, introduced each year since 2019, will create a new formula, as Roberts insisted, to identify discriminatory voter restrictions.

As Attorney General Merrick Garland recently wrote in the Washington Post on the Voting Rights Act’s 56th anniversary, “it is not right to erect barriers that make it harder for millions of eligible Americans to vote. And it is time for Congress to act again to protect that fundamental right” by enacting the law. Hear, hear!

Jack Fruchtman, who lives in Aquinnah, is currently updating for a second edition his “American Constitutional History.”