Fifty years ago this month, on Aug. 6, 1965, as President Lyndon Johnson signed the Voting Rights Act, he declared, “This act flows from a clear and simple wrong. Its only purpose is to right that wrong. Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote.”
In his remarks, Johnson went on to say: “Wherever, by clear and objective standards, states and counties are using regulations, or laws, or tests to deny the right to vote, then they will be struck down. If it is clear that State officials still intend to discriminate, then Federal examiners will be sent in to register all eligible voters. When the prospect of discrimination is gone, the examiners will be immediately withdrawn.
“And, under this act, if any county anywhere in this Nation does not want Federal intervention it need only open its polling places to all of its people.”
Earlier that year, in a speech to Congress urging passage of the act, Johnson explained in stark terms the problem the act sought to remedy — that “the harsh fact is that in many places in this country men and women are kept from voting simply because they are Negroes.”
Black men had been granted the right to vote in 1870 in the 15th Amendment, which said people should be allowed to vote regardless of their race or previous condition of slavery.
But soon after Reconstruction, which ended in 1877, Southern states started passing laws that imposed conditions on the right to vote, including so-called literacy tests and poll taxes, according to attorney Mark Johnson, a partner at Dentons law firm in Kansas City.
Johnson, who teaches election law at the University of Kansas School of Law, sat down with The Star at his office at 45th and Main streets to discuss the legacy of the Voting Rights Act almost 50 years later — a law that still has resonance for new U.S. citizens — and how some of its gains have eroded in the past five years.
Q: What precipitated the Voting Rights Act of 1965?
A: By the mid-1960s it had become clear that people in the former Southern states were being denied the right to vote, and the impact was primarily on black people.
The law had two immediate impacts. First, one section of the law imposed on certain states an obligation to get what’s called pre-clearance for any change in their voting laws. For example, if the state of Georgia wanted to close some polling places or open some new polling places or they wanted to get new types of voting machines, they had to go either to the Justice Department in Washington, D.C., for approval, or they could file a lawsuit in the District of Columbia and get a judge to approve it.
The Supreme Court overturned that portion of the law in 2013. Why?
In that case, which involved Shelby County, Alabama, the court said the formula put in place in the ’60s … that said which states would be subject to pre-clearance was unconstitutional because it was static. They said pre-clearance is not unconstitutional, but how states got on the list is, so Congress needs to rewrite it. And I’m sure they knew it would be nearly impossible for Congress to agree on a new formula.
Which states were on the list before the 2013 decision?
Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Also some counties and townships in California, Florida, New York, North Carolina, South Dakota and Michigan were subject to pre-clearance.
What was the second major impact of the Voting Rights Act?
It gave the Justice Department and individual citizens the right to sue if they felt individuals were being denied the right to vote because of race or color.
What is going on in the area of election law in Kansas and Missouri right now?
With Shelby and other decisions, the states see that the federal government is not going to step in and challenge restrictions on people’s right to vote. After a 2008 decision upholding an Indiana voter ID requirement, other states, including Kansas, have adopted voter ID requirements.
Interestingly, Missouri had a voter ID law on the books, but it was struck down by the Missouri Supreme Court in 2006, and since then the Missouri legislature has not been able to pass a new voter ID law (in Missouri, voters must show some form of identification, but it doesn’t have to be a photo ID).
Conservatives say there is no problem with voter ID laws; they are just preventing fraud. What’s wrong with that?
The problem with voter ID laws is, they are a solution in search of a problem. There really haven’t been significant problems with voter fraud.… The problems with voter fraud are by and large somebody who, say, lived in Missouri until the fall and then moved to Kansas and voted absentee in Missouri before the election then also voted in Kansas after the move. Or people who have Alzheimer’s and don’t realize they voted before.
So voter fraud is by and large innocent.
Has voter fraud ever affected the outcome of an election?
Ninety-nine point-nine percent of the time, no. The folks who advocate for these voter ID laws point to elections where 1 or 2 votes made a difference. There was a case in a primary in Missouri where a candidate’s aunt and uncle voted twice and their nephew won by one vote. That one case gets used a lot.
Some people say, what’s the big deal with showing a photo ID — you have to show one to fly or enter a federal building.
For (most) people that’s true, but it’s been shown about 10 percent of people really don’t have a photo ID, they travel by bus. It’s disproportionately poor people, elderly and people in racial minorities, and that is the problem.
Advocates of voter ID laws say states provide a process for people to get a photo ID even if they don’t drive, so how is that a problem?
The big problem is most people see voting as a low-return issue.… There’s not a lot of reward that people feel about voting, so any hurdle, no matter how low, that the state puts in people’s way is going to prevent a lot of people from voting.
What are other examples of restrictive voter laws, in addition to photo ID requirements?
Kansas, for example, has a requirement that in order to register to vote (in state elections) you have to prove you’re a citizen.… In most states, the citizenship requirement is satisfied by the voter filling out a form that says, “I swear I am a citizen.” In Kansas, you have to come with documentary proof (such as a birth certificate).
Are these requirements only for new voters or do elderly farmers in Kansas also have to come up with a birth certificate?
No. Folks who were already registered when the law was passed are grandfathered in.
Where it really makes it unequal and really creates a problem is … for federal elections, voter eligibility is largely controlled by federal law, and under federal law, a person does not have to prove citizenship in order to vote for someone running for Congress or president. But if you want to vote in a state race you do have to prove citizenship.
Arizona and Kansas tried to get the federal office that deals with election forms to change the form to include a requirement that you have this citizenship document. The federal office said: No, we’re not going to do that; we don’t have to do that. Arizona and Kansas sued, and the federal courts have said the federal office doesn’t have to do that.
So in Kansas you have this really strange situation where if you want to register to vote in Kansas and you don’t have your birth certificate or other document that proves citizenship, you can register to vote in federal elections but not state elections. So there are about 20,000 or so — the number gets bigger every month — people in Kansas who can vote in federal elections but not in state elections. It’s a mess, and it’s an embarrassment for Kansas.
Are there any estimates of how many of those 20,000 disenfranchised people are citizens of the United States?
I don’t know the answer to that.
Any other recent laws of concern to voting rights advocates?
There is a case in the courts right now challenging a restrictive law North Carolina put into place a couple of years ago, reducing the number of days for advance voting from 17 to 10 and getting rid of an old law that said you could register and vote on the same day, so you have to register in advance now.
People who are opposed to the law are trying to persuade a judge that those parts of the law were passed to suppress the black vote. It’s up in the air right now.
Why do some people feel the Voting Rights Act was more important than the Civil Rights Act of 1964?
You aren’t going to have enforcement of civil rights laws unless you have political leaders elected to office who are going to do the enforcing.
Title 7 of the Civil Rights Act says you can’t discriminate against people in hiring on the basis of race or sex, but unless you have political officials who will enforce it, you can have a great law with no consequence.
Despite recent setbacks, is there reason to celebrate on the 50th anniversary of the Voting Rights Act?
You can’t oversell the benefits of the Voting Rights Act. Just look at the officeholders in the South today. In 1965 in Mississippi there wasn’t a single black mayor — today there are dozens. The same is true in Alabama and Georgia. It has had immense benefits.
It’s not a perfect system, but it’s a heck of a lot better than it was 50 years ago. I don’t think anybody would question that.