Evaluating the need for the Voting Rights Act – A Case Study of Mississippi

The Voting Rights Act was a landmark piece of legislation that provided the tools necessary to monitor and enforce the right to vote for all US citizens. In the decades after Reconstruction, the South consistently was guilty of disenfranchising African-American and minority voters. This practice was none more public and brutal than in Mississippi. Since the passage of the Voting Rights Act, there has been a meaningful increase in both African-American voter registration and African-American representation at local levels. With this change has come pressure from the South to lift these restrictions, the focus being specifically on Section 5 with requirements on federal approval for any district line or election law changes in qualifying areas. With the recent Supreme Court decision of Shelby County v. Holder that disabled the coverage formula for determining Section 5 coverage, Section 5 has been made dormant and ineffective. Thus, we will evaluate the conditions leading up to the Voting Rights Act, why Section 5 was necessary for enforcing the right to vote, how African-American voter registration changed in the decades after the Voting Right Acts’ passage, and what the outlook is for African-American enfranchisement in Mississippi in absence of the Acts arguably most powerful tool to prevent disenfranchisement practices.

Mississippi has a long history of violent and bitter opposition towards the civil rights movement as well as the voting rights movement. After the Civil War, Mississippi and other southern states were occupied by federal troops and were forced to rewrite their state constitutions, as well as adopt the 14th and 15th amendments. These particularly amendments guaranteed a number of civil rights and the right to vote for all citizens in the United States, regardless of “race, color, or previous condition of servitude.” These Reconstruction era amendments to which Southern states were forced to abide by marked a period of increase in political activity by blacks, with a registration rate as high as 90% of eligible black voters (Constitutional Rights Foundation). In Mississippi, former slaves made up over half of the states total population, creating a strong electoral force that saw the election of a Republican state legislature as well as two black Senators being elected in the years after reunification.

            However, these conditions did not last and dramatically changed dramatically after federal troops withdrew from Mississippi in 1877. Soon after, the elements of white supremacy rushed back into play as whites, largely led by the wealthy plantation owners from the delta area, set out to reign in and suppress this new powerful voting force. None more obvious was this goal than at the 1890 Mississippi Constitutional Convention, where Convention President S.S. Calhoun stated, “We came here to exclude the Negro.” While the ratification of the 14th and 15th amendments prevented Mississippi from blatantly refusing the right to vote to African Americans, African American disenfranchisement was to be implemented in another way. The methods of doing this in Mississippi became the playbook for other Southern States; the convention wrote such measures as poll taxes, literacy tests, grandfather clauses, and others into their new State Constitution. Along with this, violence and intimidation by groups such as the Klu Klux Klan as well as white business owners suppressed African American desire to even attempt to register to vote. While voter registration rates among African Americans had been around 90% during Reconstruction, they fell to just 6% in 1892, after the new Constitution took effect.

            In the years leading up to the Voting Rights Act, powerful and violent resistance to the growing momentum of the Civil Rights Movement occurred across the South. Mississippi was perhaps the most extreme in both of these senses. During the Freedom Summer voter registration campaign in June of 1964, four civil rights workers were killed, three African-American Mississippians were killed as a result of their support for the civil rights movement, four people were critically wounded, eighty Freedom Summer workers were beaten, 1,062 volunteers and supporters were arrested, thirty-seven churches were bombed or burned, and thirty black homes and businesses were bombed or burned. What made this worse was the institutional nature of the violence in Mississippi; the violence was coordinated among state and local government officials, police, the Klu Klux Klan, and the White Citizens’ Council. Their tactics of murder, arson, arrests, evictions, and property destruction ultimately drew national attention and inadvertently gave the idea of serious federal intervention significant merit.

            The pattern of behavior in Mississippi to disenfranchise African-Americans as well as the extremity of methods used to discourage African-American political participation showed the need for serious federal involvement in the state and the South as a whole, to which the federal government responded. First, Congress passed the Civil Rights Act of 1964, which outlawed racial discrimination. Shortly following the Civil Rights Act was the Voting Rights Act in 1965 which empowered the federal government to enforce and prevent interference with the right to vote.  Our focus is going to be on evaluating Section 5 which forces states who qualify for coverage to pre-clear changes to voting laws with the Department of Justice at the federal level. Mississippi provided much of the evidence necessary to convince Congress to include a provision that takes the power of passing and implementing voting laws out of the hands of the states. After passage, the Mississippi response was typical: the state legislature moved immediately to circumvent this federal intervention by refusing to abide by it, culminating in the 1969 Supreme Court decision in Allen v. State Board of Elections, which requires the state to follow the requirement of the Voting Rights Act.

            The impact of the Voting Rights Act in Mississippi was instant. From approximately 6.7% of eligible blacks registered to vote in August of 1965, Mississippi saw 59.8% registered in 1967 (Constitutional Rights Foundation) . Of the 82 counties in Mississippi, 51 of them had direct federal oversight through the Section 5 provision. Analyzing a map of the affected counties reveals some familiar patterns. The powerful, wealthy, white delta region of Mississippi saw the heaviest and most complete Section 5 covereage compared to that of the hills (Attachment 1).

Image

While the geographic separation between delta and hills is a good tool for visualizing the different ideology attitudes, V.O. Key Jr. also mentioned using prohibition support as a method of visualizing the divide between the two groups. Using a 2011 map of Mississippi that demonstrates which counties are dry, there is a visible relationship between the dry hills mentioned by Key, and counties covered by Section 5 (Attachment 2).

Image

This is especially evident when we overlap the maps of counties that are certified for federal observers under the Voting Rights Act with the map of delta area and high African American density area counties.

            Looking at Department of Justice intervention in Mississippi, one notices a few significant items. First, there have been 169 cases of intervention through Section 5 since the laws implementation in 1969. Additionally, federal observers have been sent to areas of intense enfranchisement resistance in Mississippi many more times than any other state. A second point, which builds on the previous one, is that these violations are not just from the years after the law was enacted but are mostly recent. Of the 169 cases of intervention through Section 5 mentioned earlier, 112 of them have come since 1982. Additionally, federal observers have been sent into Mississippi over two hundred and fifty times since 1982 including in the 2011 election when observers were sent to eleven primarily African-American counties in the delta region of Mississippi. Thus, resistance to enfranchisement as well as activity to undermine the Voting Rights Act and its’ provisions is still alive and well.

            Through the powers granted to the Department of Justice by the Voting Rights Act, and specifically Section 5, Mississippi has seen a large and maintained level of African-American registration to vote as well as an increase in the number of elected African-American representatives from Mississippi districts. While there have been hundreds of attempts to change voting laws, redraw districts discriminatorily towards African-Americans and minorities, as well as other maneuvering, the Department of Justice has been able to review these and strike them down before implementation, protecting the enfranchisement of African American and minority voters. Additionally, the 1982 amendments to the Voting Rights Act created a formula for districts to be ‘bailed out’ from Section 5 coverage if there had been no Section 5 objective standards or obvious voting changes, no assignment of federal examiners or observers, and no adjudication of discrimination. An additional significant change to the bailout formula was that individual districts could be bailed out, thus discrimination in one part of a state would not preclude specific districts from being bailed out. This was designed to satisfy the understood over-coverage of States such as Mississippi, where districts in the hills regions were not guilty of violations and thus did not deserve Section 5 coverage like their delta counterparts (The Urban Lawyer).

            In June of 2013, the Supreme Court issued a ruling that had the ability to have huge implications for voter enfranchisement in the South as a whole, and especially Mississippi. In Shelby County v. Holder, the Supreme Court was asked to review the Constitutionality of Section 4(b), the formula for determining which districts would be covered by Section 5. While the Court did not strike down Section 5, it did rule Section 4(b) was unconstitutional due to it being out of date. The formula itself was a snapshot of a county in November 1964 that evaluated whether that county had a test or device as a condition to the right to vote and had a voting-age population of less than 50% registered. Therefore, while the formula for being bailed out had been updated to consider recent history instead of a static point in time, the lack of change for the coverage entrance formula meant that, in the Courts opinion, this formula was aged and unconstitutional. While it was Section 4(b) that was struck down, curiously Chief Justice John Roberts’ opinion seemed to describe a South that had moved on from the disenfranchised behavior, making the law no longer necessary. In his opinion, a table of voter registration numbers was included to show the enormous change in registered African-American voters between 1965 and 2004 (Shelby County v Holder, pg 15). While the Court did acknowledge the laws effectiveness in “redressing racial discrimination and integrating the voting process,” (15) Justice Thomas took it a step further, going on to say that he would find Section 5 unconstitutional on the grounds that extraordinary conditions no longer exist to require such extraordinary measures.

            To understand the implications of these changes to the Voting Rights Act, we need to understand a bit about voting behavior in Mississippi. First, racial polarization is higher on average in areas that are covered by Section 5 than those which are not covered (Ansolabehere, Persily, Stewart III). Even when accounting for party identification, there is a statistically significant difference in rates of racial polarization between the two. Taking a look at racial polarization in Presidential Elections from 2000 – 2012, likely support for the Democratic nominee by whites in covered states has dropped from 0.247 in 2000 to 0.198 in 2012 while support has remained at around 0.41 for non-covered areas, with the exception being Obama in 2008 when he captured 0.45 of the white vote in non-covered areas on average (Ansolabehere, Persily, Stewart III). This holds true even when accounting for variables such as party, ideology, church attendance, religiosity, union membership, age, income, and education. In addition, residence in a covered state remained a statistically significant negative factor in predicting the vote choice of whites in the 2008 election, though the same cannot be said for the 2004 election. Even when controlling for party, whites in covered states were less likely to vote for President Obama than for Hillary Clinton.

            This racial polarization in voting is significant for a multitude of reasons. First, polarization of voters in covered districts is increasing over time, making the regulation of district lines even more critical to maintaining appropriate race representation (Ansolabehere, Persily, Stewart III). One useful method for suppressing African-American and minority votes has been to divide their votes between white majority districts in order to ensure the white choice candidate wins. Therefore, as voting becomes more racially polarized, the effect of this practice will become more significant. Second, as voting becomes racially polarized, the tendency for race-based discrimination against a minority group to become entrenched within these racial divides increases. Naturally, a candidate seeking to protect his or her incumbency by appealing to these racial groups would strongly oppose the aforementioned practices. Third, this unwillingness for races to ‘cross over’ and vote for minority-preferred candidates presents several dangers in regards to African-American and minority voters being accurately represented. Finally, this shows that, although the superficial numbers have shown great increases in African-American participation and election, the voting behavior and attitudes still remain the same in regards to race, especially in areas previously covered by Section 5.

            Mississippi has the highest percentage of African-Americans versus overall population in the United States, coming in at 36% (McDuff). Huge disparities in income and opportunity continue to exist between whites and blacks and, although local levels have reached integration parity, blacks continue to be significantly under-represented at the state level. With a contentious and violent history of behavior towards civil and voting rights, Mississippi was the poster child for the necessity of federal oversight into state election laws. As has been shown here, in the decades after the passage of the Voting Rights Act there continued to be a significant level of activity to disenfranchise African American and minority voters, most of which was blocked through Section 5 intervention (Department of Justice, McDuff). Unfortunately, with the Supreme Court invalidation of the Section 4(b) formula, Section 5 is powerless to intervene in state-election business. Following a similar, though certainly less volatile, timeline as Reconstruction, Mississippi has pushed through a number of new measures. These include new Voter ID laws to go with already strict measures such as the removal of absentee voting, murky Election Day registration laws, et cetera. While Mississippi does not have a law for this, there were still a number of voters registered on Election Day (Jackson Free Press), as well as a purge registration of the voter registration based on immigration status information provided by a Homeland Security database that has questionable accuracy was not designed for use in elections (Brandeisky & Tigas).

While it remains to be seen whether this has a significant impact on the number of African-American and minority voters participating in the next election, the behavior is concerning to say the very least. Without the issue of redrawing a new coverage formula based remotely on Congress’ legislative agenda, significant election law changes continue to happen across the country with Mississippi again leading the way in engineering legislation to make the process of registering to vote and actually voting more difficult.

A discussion about the nature of the formula for determining Section 5 coverage is worthwhile, however it is important to understand that the real target for the Court, as indicated by opinions released by Justice Roberts and Thomas, is Section 5 itself. Understanding that voting behavior is still significantly polarized in regards to race – and even growing when looking at the 2004 and 2008 Presidential elections – gives us the necessary evidence to understand that, unlike Justice Roberts and Justice Thomas, we cannot take the large strides in voter participation levels at face value. As the research presented here has shown in regards to voter polarization, the pressures of supporting a white candidate in previously covered Section 5 areas based just on the premise of race still exists. It is this mere existence that poses the great threat to the fairness of election laws and districts, which are no longer required to be pre-cleared by the Department of Justice since the disabling of Section 5. Thus, as seems to be a familiar narrative, the South has changed superficially but not its attitudes or behavior towards the enfranchisement of African-Americans and minorities. Truthfully, with the restraints of federal oversight and limitations lifted once more, the outlook for voter engagement looks bleak across the South and especially in Mississippi for the years to come.

Advertisements