Voting Rights—Two Amendments and Renewed Battle

African Americans cast their first vote during Reconstruction,  In 1870 the 15th Amendment was meant to protect the right to vote.

Anniversaries of two amendments to the U.S. Constitution which protected and extended voting rights for African Americans and the poor were recently marked.  The 15th Amendment ratified on February 3, 1870 prohibited the Federal government and each state from denying or abridging a citizen’s right to vote “on account of race, color, or previous condition of servitude.”  The 24th Amendment ratified on January 23, 1964.  Yet today voting rights are under sweeping attack not only in the states of the old Confederacy but everywhere Republicans control state legislatures and/or governorships.

The 15th Amendment was the last of three and perhaps the least known of three dealing with slavery and the rights of the formerly enslaved. The 13th adopted as the Civil War was drawing to a close in 1865 finally abolished slavery in all states including those which remained loyal to the Union.  It was followed by the 14th in 1868 which guaranteed citizenship to former slaves as well as providing due process and equal protection under the law.  It is the basis for most modern civil rights laws and has been interpreted to cover other minorities and women as well as Blacks.  It is the most litigated of all Constitutional amendments and the center of intense struggle by liberals and conservatives on the Supreme Court.  The current court has a right wing majority thanks to appointments by the former Resident of the United States and has demonstrated a willingness to roll back long-established rights.

In fact, under post-Civil War Reconstruction freed slaves had citizenship and voting rights under the protection of occupying Federal Troops in the former Confederacy.  Blacks and their Republican allies who were smeared as carpetbaggers by former Rebels were able to elect local officials, majorities in state legislatures, judges, governors, and members of the U.S, House of Representatives and Senate.  Blacks thrived with new rights to own property, establish businesses, enter trades and professions, and be educated.

But even the most ardent supporters of Reconstruction recognized that it could not continue indefinitely.  Former Confederates who swore loyalty to the Union had their franchise restored as a condition of Southern states ratifying the 14th Amendment.  New generations of whites became eligible voters when they reached maturity meaning that whites—mostly Democrats—would inevitably return to power.  The 15th Amendment was meant to ensure that states and local governments would continue to respect the voting rights of Blacks. 

It was a good and necessary idea as night riding and terrorism by groups like the Ku Klux Klan were already attacking and intimidating Black leaders and voters and even challenging Federal troops.  They were seen as armed extensions of un-reconstructed Democrats.

The passage of the 15th Amendment was celebrated in this print offered for sale to Black families.

The 15th Amendment was simple and clear.  It read:

Section 1. 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.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

It might have been effective if Reconstruction was allowed to continue for a longer period.  Unfortunately, in 1876 the Presidential election between Republican Rutherford B. Hayes and Democrat Samuel Tilden was thrown into the House of Representatives despite Tilden’s narrow popular vote majority. After round upon round of fruitless votes in the House where each state delegation cast one vote, a deal was struck electing Hayes in exchange for withdrawing troops from the south effectively ending Reconstruction in 1877.

Without troops to enforce the Constitution Blacks were quickly subjugated by force and intimidation.  Before 1890 virtually all Black office holders were gone.  Black voters were purged from the rolls and state courts refused to recognize their rights.  Poll taxes and impossible literacy tests were just two of the “legal” means used to strip them of their voting rights.  The Jim Crow Era ushered in waves of new segregation laws and many blacks were plunged back into a condition barely above official chattel slavery. 

Without Federal enforcement the 15th Amendment was a virtual dead letter.

After the protection of Federal troops was withdrawn ending Reconstruction the poll tax joined intimidation to usher in the Jim Crow era and the end to Black voting rights in the South.

The first poll tax became effective Georgia as early as 1871.  It was allowed under Reconstruction because the poll tax impacted poor whites as well as Blacks.  The idea slowly spread and really took off after Federal troops were evacuated.  By 1905 all former Confederate states had adopted a poll tax in one form or another.  Several states required that all cumulative taxes be paid to vote meaning a would-be registrant of middle age could be held liable for all taxes since he or she turned 21.

By the 1930s some states had abandoned the taxes, but six states retained them until 1966—Virginia, Alabama, Mississippi, Arkansas, and Texas.

The states in light blue and red retained their poll taxes until the passage of the 24th Amendment,  Those in gray had not formally abandon them but kept them on the books despite being unenforced.

Despite roll-backs in some states the poll tax survived a legal challenge in the 1937 Supreme Court case Breedlove v. Suttles, which unanimously ruled that:

[The] privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate.

Note that the Court characterized voting as a privilege instead of a right.

Campaigns against poll taxes began in earnest after World War II causing some states to rescind their act 1948 Harry Truman considered a recommendation of his   President’s Committee on Civil Rights to legislatively act against the taxes but in the face of united opposition from Southern Democrats in Congress concluded that only a Constitutional Amendment would be effective.  During the post-war Red Scare and McCarthy Era, the movement to kill the tax in Congress and in the states ground almost to a halt as supporters were labeled Communists because the movement had been led by avowed Marxists such as Alabama antiracist, civil rights activist, labor organizer Joseph Gelders, New York Congressman Vito Marcantonio, and W.E.B. Du Bois were acknowledged Marxists.

Later in the 1950’s as the Civil Rights Movement in the South ramped up, so did political pressure to end the poll tax.  President John F. Kennedy administration urged Congress to adopt and send such an amendment to the states for ratification. He considered the Constitutional amendment the best way to avoid a filibuster, as the claim that federal abolition of the poll tax was unconstitutional would be moot. Some liberals opposed Kennedy’s action, feeling that an amendment would be too slow compared to legislation.  Florida Senator Spessard Holland, a conservative Democrat introduced the amendment in the 87th Congress. Holland had opposed most civil rights legislation during his career, and his support helped splinter the monolithic Southern opposition to the amendment.

Chicago Defender headlines when the 24th Amendment was ratified.  Note the credit to most articles to the National Negro Press Association (NNPA), an alternative to the Associated Press (AP) and United Press International (UPI.)

Ratification of the amendment by state legislatures across the country was relatively quick, taking slightly more than a year from August 1962 to January 1964.  South Dakota became the 38th and deciding state to put it over the top.  Only two former Confederate states, Florida and Kentucky, and three Southern leaning Boarder states, Maryland, Tennessee, and Missouri were among the supporters. Mississippi outright rejected the amendment almost as soon as it cleared the U.S. Congress. Surprisingly, Georgia where the poll tax originated, passed the amendment unanimously in the Senate but did not pass the House before South Dakota secured adoption.  The issue was dropped there and never subsequently acted upon.

Long after the amendment went into effect four additional Southern states finally ratified—Virginia in 1977, North Carolina in 1989, Alabama in 2002, and Texas in 2009.  It is safe to say if a vote was taken today it would not pass in the last two states which have become radially more right wing and lead the country in voter suppression schemes.  Seven states still have not ratified and show no inclination to do so—Arizona, Arkansas, Georgia, Louisiana, Oklahoma, South Carolina, and my old home state of Wyoming the “Equality State.”

Even the passage of the amendment did not immediately end poll taxes.  Recalcitrant states maintained the onerous levies only applied to Federal elections for President, the House of Representatives, and the Senate and continued to require payment to participate in local and state elections.  Arkansas suspended its poll tax by referendum in the November 1964 General Election several months after the amendment was ratified and did not repeal all mention of the tax in the state constitution until 2008 but still refuses to ratify the Federal amendment.  Federal District Courts in Alabama and Texas struck down their poll taxes in late 1965.  The Supreme Court finally ruled in the case of Harper v. Virginia State Board of Elections that poll taxes were unconstitutional even for state elections. 

It was the formal death knoll of the taxes, although attempts were made in some states to revive fees in some guise or another. Voter registration struggles intensified across the South with the Freedom Summer campaign spearheaded by the Student Non-Violent Coordinating Committee (SNCC) in 1964 and the Selma campaign culminating with the March to Montgomery in1965.  Both efforts were met with violent police suppression, mass arrests, and several murders by the Ku Klux Klan. 

Norman Rockwell's stark and dramatic painting of the murder of voting rights activists James Chaney, Andrew Goodman, and Michael Schwerner helped rally support for the passage of the Civil Rights Act of 1965 which finnally put teeth in enforcement of the 15th and 24th amendments.

Public horror at the murders of Freedom Summer activists James Chaney, Andrew Goodman, and Michael Schwerner and the deaths of Jimmy Johnson, Unitarian Universalist minister James Reeb, and Viola Liuzzo during the Selma campaign led directly to the passage of the landmark Civil Rights Act of 1965.  The act enforced voting rights guaranteed by the Constitution for racial minorities throughout the country, especially in the South.  As vigorously enforced by According to the Department of Justice, the was the most effective piece of Federal civil rights legislation ever enacted and one of the most far-reaching in history.

Under the provisions of the Act states with histories of racially motivated interference and some counties with similar histories in other states were put under court review to any changes to their election laws.  That prevented repeated efforts to find new ways to suppress voting and led the wide-spread election of Black official at every level in the South.  It was the most effective tool for guaranteeing access to the ballot for decades.

But that critical tool was crippled by the Supreme Court in the case of Shelby County v. Holder when it ruled that a section of the Act which outlined a formula for judicial review of state laws violates the Constitutional principles of “equal sovereignty of the states” and federalism because its disparate treatment of the states is “based on 40 year-old facts having no logical relationship to the present day.” While the Court did not completely repeal judicial review, it so gutted it as to make practically moot.  Subsequent rulings have further narrowed applicability.  More recently the Court struck down court review of most district Gerrymandering arguing how states draw lines if their business so long as districts are fairly equal in population. 

In response Red State legislatures have stampeded with all sorts of laws aimed at restricting voter participation among minorities and other populations suspected of being sympathetic to Democrats or liberals.  Unlike original Jim Crow laws these actions are not meant to completely block minority voting but to make it as difficult and burdensome as possible to shave just enough of the vote away to guarantee the continued domination of white conservatives.

These outrages have helped spark a revived Civil Rights Movement to combat the new voter repression with the John Lewis Voting Rights Act and the Freedom to Vote Act, have passed the House of Representatives with the full support of activists in the streets and President Joe Biden.  But in the upper chamber which is split 50-50 between Democrats and Republicans Senate Minority Leader Mitch McConnell has been able to block consideration of the measures as conservative Democrats Joe Manchin of West Virginia and Kyrsten Sinema of Arizona voted along with Republicans to oppose a filibuster rule change that would allow election legislation to pass with a simple majority.  Both stubborn Senators claim they would support the acts but refuse to allow a change to the “traditional” right of the minority to effectively block legislation with a 2/3rds majority required to end debate.  If the rule was modified or repealed Vice President Kamala Harris would be able to cast a tie breaking and deciding vote.

Frustrated Senate Majority Leader Chuck Schumer has vowed to call for a vote anyway “to put Republicans on record for supporting voting suppression.”  But he and the President acknowledge that there is no way forward to get the measures enacted.

Voting rights protests like this one in Georgia keep the pressure up to pass the John Lewis Voting Rights  Act and the Freedom to Vote Act.

Angry voting rights activists have vowed to take the fight back to the states.  Some have been critical of Democrats and the President for failing to keep promises to enact the legislation.  The danger is now that with a solid conservative majority on the Supreme Court there is nothing to really stand in the way of even more outrageous voter suppression laws and Gerrymandering that preserves white power.  Democrats are in danger of loosing their slender majority in the House in mid-term elections this fall crippling the entire progressive agenda and possibly enabling efforts to overturn legitimate election results in the 2024 Presidential election.

The old pattern of rolling back Black and minority rights is repeating itself.  But it will be met with massive resistance.