Beyond Ballots


Review of Give us the Ballot, by Ari Berman

Farrar, Straus and Giroux, 2015

The voting rights struggle of the 1960s produced several moments that remain seared in the nation’s memory. State troopers’ savage attack in Selma on marchers protesting blacks’ exclusion from the franchise. Lyndon Johnson’s speech to Congress a week later, in which he made the marchers’ mantra—We Shall Overcome—his own. The passage of the Voting Rights Act in the summer of 1965, described by Johnson as “the nation’s finest hour in terms of civil rights” (38). And the arrival of federal examiners in the Deep South, followed by the registration of hundreds of thousands, then millions, of black voters.

In his new book, Give Us the Ballot, journalist Ari Berman tells the story of these stirring moments, and tells it well. But unlike many civil rights chronicles, his account begins rather than ends in the 1960s. Via a series of vivid anecdotes, he describes the tumultuous history of the Voting Rights Act (VRA) from its enactment all the way to the present day. It’s an important and absorbing tale—though one that could have been narrated with a bit less certainty and a bit more nuance.

The VRA’s history can be divided into three stages. The first and most heroic, dubbed the “Second Reconstruction” by Berman, lasted from 1965 until roughly 1970 (39). This was the era of federal examiners registering masses of black voters, of voting restrictions like the poll tax and the literacy test being eliminated, and of blacks beginning to flex their political muscles. In Selma, for instance, the sheriff who ordered the attack on the marchers lost in the first post-VRA election, defeated by a moderate white candidate supported by the black community (53).

In the VRA’s second stage, which ran from the early 1970s to the early 2000s, “the focus shifted from registration to representation”—or, more precisely, from vote denial to vote dilution (130). Vote dilution refers to policies that don’t stop minorities from voting, but do make it harder for them to elect their preferred candidates. At-large voting, in which an entire jurisdiction votes on all candidates, is the classic dilutive practice because it lets the majority control every seat. But dilution also can be achieved by “packing” minority voters in districts in which they make up overwhelming majorities, or by “cracking” them between multiple districts in which they are consistently outvoted.

In the 1970s, as Berman explains, the protagonist in the fight against vote dilution was the Department of Justice (DOJ). The DOJ used a VRA provision known as Section 5 to stop southern jurisdictions from taking actions that worsened minorities’ electoral position. In the 1980s, a different VRA provision, called Section 2, took center stage. Thanks to sweeping amendments in 1982, Section 2 enables minorities to sue for additional representation—not just to preserve their current level. And in the 1990s, Sections 2 and 5 worked in tandem to dramatically increase the number of minority legislators. But the Supreme Court made it possible, for the first time, for certain minority-controlled districts to be struck down as unlawful “racial gerrymanders.”

The hallmark of the VRA’s third stage, starting in the early 2000s and continuing to this day, has been the resurgence of vote denial. Modern voting restrictions, though—which include photo ID requirements for voting, proof-of-citizenship requirements for registering to vote, and cutbacks to early voting—differ in certain respects from their forebears. They’re targeted at Democratic voters generally, not minorities specifically. They typically make it harder, not impossible, for affected individuals to vote. And their status under the VRA is hazy; they sometimes have been upheld under Sections 2 and 5, and sometimes rejected.

If all Berman did was narrate the VRA’s legal history, his book would still be valuable. These developments are familiar to election law specialists, but to date, they have not been presented in accessible language to a general audience. Fortunately, though, Berman also covers the VRA’s personal and political sides—the ways it has touched the lives of individual voters and candidates, as well as the epic Washington battles over its renewal and revision. These parts of the story are full of interesting nuggets even for experts in the field.

On the personal side, we learn about Ardies Mauldin, a black nurse in Selma who registered to vote days after the VRA’s passage, no longer excluded from the franchise by Alabama’s literacy test (42). About Andrew Young, the South’s first black member of Congress since Reconstruction, elected in 1972 from a majority-white district in Atlanta (98). About Elizabeth Gholar, an elderly black woman in Austin who couldn’t get a driver’s license due to a misspelling on her birth certificate, and so couldn’t comply with Texas’s 2011 photo ID law (307). And about countless others; one of Berman’s strengths is his ability to make the VRA come alive through rich, detailed profiles.

On the political side, Berman describes not just the enactment of the VRA in 1965, but also its extension and amendment in 1970, 1975, 1982, and 2006. What’s most striking about these events is that, each time, a Republican president was in office, presiding over an administration packed with critics of the law. And yet, each time, the president eventually agreed to renew the VRA’s expiring provisions (notably Section 5) and to make the law more potent than ever.

In 1970, for example, Richard Nixon had voiced his opposition to Section 5’s selective coverage, and had backed a bill that would have eliminated the provision. But when Congress passed a five-year extension of Section 5 (as well as a nationwide ban on literacy tests), Nixon reluctantly acquiesced. He grumbled that he was signing the bill to prevent the “goddamn country” from “blowing up” (85). In 1982, similarly, Ronald Reagan had supported renewing Section 5 for ten years, and keeping Section 2 in its original form, violable only by proof of discriminatory intent. But after an aggressive campaign by civil rights groups, Reagan reversed course, rejecting the advice of a young John Roberts and approving a twenty-five-year extension for Section 5 and an effects test for Section 2 (157).

As these twists and turns suggest, the VRA has always been a controversial law. It has divided Republicans almost from the day it was passed, pitting conservatives like Roberts and William French Smith against moderates like Bob Dole and James Sensenbrenner. It has also sown dissension in the Democratic ranks, especially in the 1990s when it became clear that more seats for minorities usually meant fewer seats for Democrats (205). In the academy as well, prominent figures like Lani Guinier and Abigail Thernstrom have clashed over whether the VRA extends to vote dilution at all, and if so, how much representation it guarantees to minorities.

In these debates, Berman sides a bit too uncritically with the VRA’s proponents. Minority plaintiffs are always heroes who only want to cast a ballot or have the chance to elect their preferred candidate. They have the “blood of martyrs” (313) and carry out “groundbreaking political campaigns to protect and expand the right to vote” (10). In contrast, the officials whose laws are challenged are always villains, bordering on racists, who seek to minimize minorities’ political clout. They aim to “roll back [racial] progress” (9) and their “efforts to curb voting rights” resemble “the Redemption period that ended Reconstruction” (10).

There is some truth to this narrative. But it’s still a touch simplistic, especially with respect to the hard cases that make up a good deal of modern VRA litigation. For instance, it’s not obvious that minority plaintiffs should prevail when they claim that districts should be redrawn to maximize their representation, often in ways that reduce the number of seats held by Democrats. Likewise, the states that have recently limited voting include several with small minority populations, like Iowa, Kansas, and Nebraska. These restrictions are wrong because they reduce turnout, skew the electorate, and fight the nearly nonexistent problem of voter fraud. But it seems odd to attack them using a law that focuses above all on racial discrimination.

The point is that we shouldn’t always root for those invoking the VRA, or against those on the receiving end of a VRA lawsuit. Not every claimant is John Lewis, whose skull was fractured when he marched for voting rights in Selma. And not every defendant is Sheriff Clark, who led the assault on Lewis and his fellow protesters. The normative complexity of the contemporary VRA is sometimes lost in Berman’s account.

This leads to another critique, which is that Berman says little about some of today’s most contentious VRA issues. Take Section 2, the law’s nationally applicable provision, which bans electoral practices with discriminatory effects. There’s no doubt that Section 2 extends to redistricting—but there’s enormous doubt over how it does and should apply. Do minority voters need to be geographically concentrated to win a suit? Are majority-minority districts the only remedies for successful claims? When (if ever) can Section 2 compel the creation of multimember districts? These are some of the questions that occupy VRA litigants and scholars, but Berman is largely silent on them.

Similarly, consider the status under Section 2 of the recent wave of voting restrictions (like the photo ID laws). Should they be invalidated because they disproportionately harm minority voters? Or should they be upheld because their motivation is more anti-Democratic than anti-minority? And does it matter whether a state’s policies place it above or below the national norm for franchise access? Berman acknowledges that there are “few relevant precedents . . . to point to” on these matters, but doesn’t try to fill the gap himself (303).

And last, turn to Section 5, which used to bar certain jurisdictions (mostly in the South) from changing their election laws until they received federal approval. In 2013, the Supreme Court neutered the provision by holding that its coverage formula, which relied on election data more than forty years old, was obsolete. This decision triggered spirited exchanges about what an updated formula might look like. Should it be based on the number of past VRA violations? On settlements in which jurisdictions didn’t admit liability but still amended their policies? On levels of racial polarization in voting? The extent of Berman’s commentary is that a bill endorsing the first of these options was “a promising start for a post-Shelby legislative fix” (300).

To be fair, Berman is a reporter writing a history of the VRA, not an academic trying to solve every puzzle posed by the law. The journalistic style of threading together anecdotes is not very conducive to abstract legal analysis. And a popular press book—thankfully—is not a law review article.

Still, it doesn’t seem like professional craft is why Berman skirts the hard questions about Sections 2 and 5. The more likely explanation is that they would have complicated the clear-cut story he wanted to tell. It’s easy to portray VRA plaintiffs as angels if all they ask for is the ballot. And we can all condemn VRA defendants who plot to deny minorities the franchise. But things become trickier when we start asking how easy it should be to vote, or how much representation minorities should have. Tricky or not, though, these are the issues that account for the continuing controversy over the VRA. Give Us the Ballot would have been stronger still had it fully considered what else minorities have sought.

Posted on 11 November 2015

NICHOLAS STEPHANOPOULOS is Assistant Professor of Law at the University of Chicago Law School.