Few moments in our country’s history can be compared to the dark and violent years of the Jim Crow era. During this ominous and shameful period, individuals and states made great efforts to deny African-Americans access to newfound constitutional rights, racial segregation was the norm and courts gave legal sanction to the principle of “separate but equal.”
Jim Crow, a name derived from a fictional minstrel character, has long been used to refer to this especially tortured time period in our nation’s story — one that was marked by violence, lynchings and the rise of the KKK.
Most recently, at a recent Campus Progress National, former President Bill Clinton observed that “There has never been in my lifetime, since we got rid of the poll tax and all the other Jim Crow burdens on voting, the determined effort to limit the franchise that we see today.”
Critics have attacked the former president for making a comparison between the legislative efforts of today and the Jim Crow days of the past. However, the ire of critics is both misplaced and misguided. Clinton’s effort to establish a parallel between the laws now being proposed to make voting more difficult and the efforts used during the Jim Crow era was intended to sound an alarm about a nation-wide strategy that threatens the exercise of our most important and central civil right — the right to vote.
The legislative efforts unfolding around the country include the adoption of mandatory government-issued photo id laws as a prerequisite to casting a ballot, proof of citizenship requirements for new voters, reductions in the hours for early voting and burdens imposed on those seeking to conduct voter registration drives. Collectively, these laws represent a new form of 21st century voter suppression that bear an uneasy resemblance to historic efforts to deny black voters access to the franchise.
For decades, blacks were denied access to the ballot box by a sophisticated matrix of Jim Crow restrictions that imposed burdensome hurdles and barriers that made voting difficult if not impossible. For example, literacy tests were written and administered in such a way that few whites failed, while blacks with college educations were routinely rejected. Understanding tests locked black voters out by requiring that anyone seeking to register to vote be able to read and write any article of the Constitution.
And most disturbingly, outright violence was resorted to keep blacks voters away from the ballot box. But, following the adoption of the Voting Rights Act of 1965 and aggressive enforcement efforts by both the Justice Department and civil rights organizations, the era of Jim Crow as it relates to voting began to subside. It is unsurprising that states have now resorted to more sophisticated strategies for restricting voter access.In few instances are legislators able to present any empirical evidence showing that the burdens imposed by the laws are justifiable or reasonable. The party line presented by those proposing the laws are that they are necessary to preserve the integrity of the electoral process and to prevent fraud and voter impersonation at the polls. However, there is no statistical evidence or real data that supports these thin claims. A recent study by the Justice Department revealed that few people have been convicted of voter fraud and that most of those cases, in any event, could not have been prevented by voter ID laws.
Instead, what the evidence shows is a clear and undeniable racial impact. For instance, we know that there are many individuals who do not possess government-issued photo id such as driver’s licenses and passports and that the burden associated with obtaining such an id may ultimately deter many from registering. To illustrate, the state of Indiana adopted a photo id law in the face of evidence that 13 percent of registered voters lacked the requisite id. And the impact was demonstrated in subsequent elections where long-time voters were denied the right to cast a ballot because they did not have acceptable id.
In many of the states where these laws have emerged, there has been strong and almost unanimous opposition presented from black legislators concerned about the impact that these laws will have on minority constituencies. For example, while many Americans have photo id, studies confirm that as many as 12 percent of eligible voters nationwide do not. A recent Pew Trusts survey conducted after the November 2008 election found that 16 percent of respondents lacked a driver’s license that was both current and valid.
In the last several months, voter ID and/or proof of citizenship bills have been adopted or cleared in Alabama, South Carolina, Georgia, Tennessee, Texas, Kansas, Wisconsin and Rhode Island — many of these being states with substantially large minority populations. In a number of other states, gubernatorial veto powers were evoked to prevent these restrictive laws from going into place including in North Carolina, Minnesota and Missouri.
In Florida, the legislature has adopted a package of voting reforms that reduces early voting hours and will make it more difficult for ex-felons to have their voting rights restored. Vigilance will be demanded in those places where these laws are still being considered to ensure that the supposed benefits of the laws are outweighed by the substantial burdens that these laws impose.
While hopefully we are not witnessing the re-emergence of Jim Crow, the effort to frustrate the exercise of our nation’s most cherished civil right — the right to vote — should have us all concerned. As a civil rights lawyer who works in the trenches, I am well aware of the barriers that black voters face and particularly sensitive to the burdens that these new laws present.
The goal should be to adopt progressive election reforms that tear down existing barriers while steering clear from Jim Crow-era kinds of voting laws that turn the clock back and bring us closer to the past than we need to be.