The Voting Rights Act is having a bit of a moment in American society right now: The struggle for its passage was brought to the masses last year in Selma, and its 50th anniversary will be marked later this month, just two years after the law was effectively gutted by the Supreme Court.
In Give Us the Ballot: The Modern Struggle for Voting Rights in America, journalist Ari Berman looks not just at the significance of this landmark civil rights law, but at what's happened to voting right in America since Lyndon Johnson signed the VRA in 1965.
Rolling Stone recently spoke to Berman about his new book, the trauma of the 2000 Florida recount and what the gutting of the VRA means for the upcoming presidential election.
It feels like a major takeaway of your book is that, after this incredible fight by Civil Rights leaders in the Sixties and beyond, and all the efforts to challenge the VRA over the years, we've ended up, if not exactly back where we started, in a pretty bad place for voting rights in America. Is that right?
Yes. In many ways the voting rights situation now closely resembles the situation before the Voting Rights Act was passed in 1965. The right to vote is threatened across the country, and it's very difficult now to challenge new voting restrictions – it's a lengthy process before the courts, often before a hostile court, which in many ways was the situation before the Voting Rights Act was passed.
Now, obviously, we've made a huge amount of progress since then, so I don't want to make it seem like 2015 is 1965, because clearly it isn't. But if you look at many of the challenges that we're facing today, these were things that the Voting Rights Act was supposed to eradicate.
The Voting Rights Act has been challenged throughout its history, but it's only recently that those challenges have been successful. The VRA was re-authorized four times by Congress, and it was upheld four times by the courts as well – it was only recently, in 2013, when the Supreme Court gutted the Voting Rights Act, and now Congress won't do anything to restore it. But both the courts and Congress have shifted to a far more negative stance toward the VRA.
The second thing I'll say is that laws are being passed in states like Texas and North Carolina that either would have been blocked under the Voting Rights Act, or in fact were blocked under the Voting Rights Act and are now in effect. The Texas voter ID law was blocked under Section 5 of the Voting Rights Act in 2012. If the Supreme Court had not gutted the Voting Rights Act, that law would never have been in effect.
A month after the Supreme Court's Shelby County decision [gutting the VRA], North Carolina passed a law that essentially repealed or curtailed every voting reform in the state that had encouraged people to vote. Now, if North Carolina was still subject to Section 5 of the VRA and had to approve its voting credentials with the federal government, there's no way the federal government would have approved that law, because it's clear that the law left African-Americans and other minorities worse off than before. There's clear data that African-Americans were more likely to use early voting, to use same-day registration, to vote at a precinct, to not have a government-issued ID. That's a situation where clearly the law would have been blocked, but the Supreme Court gutted the Voting Rights Act, and now this law is in effect, and there is a very long legal process to challenge it.
Let's talk about the specific court that was able to gut the Voting Rights Act. What does it say about the Roberts Court that the VRA has been under legal attack since it was passed, and this was the court that finally succeeded?
The Supreme Court has shifted so significantly to the right since the Voting Rights Act was passed. The VRA was passed in the heyday of the Earl Warren Court, the most liberal court of the 20th Century, and the court has inched further and further to the right since then, first through Richard Nixon's appointments (though even then the Supreme Court was largely favorable to the VRA) and then to the Reagan administration (though again, even then the Supreme Court was largely favorable to the VRA). The current Supreme Court is filled with Reagan disciples. All five justices who gutted the Voting Rights Act either worked in the Reagan administration or were appointed by Reagan. So the backlash against civil rights in the Seventies and Eighties has come to fruition today, because people who came of age politically at that time, when there was a really strong, conservative backlash to the Voting Rights Act and to civil rights laws more broadly, they're now on the court. You can trace the counterrevolution of voting rights directly from the early efforts to challenge the VRA to the Supreme Court of today.
Does that make you nervous for this next election, and the administration that will almost certainly get to appoint one or more Supreme Court justices?
It makes me very nervous, because there's no doubt that if a Republican is elected president in 2016, that Republican is going to appoint a Supreme Court justice – or numerous Supreme Court justices, if there are openings – that are hostile to the VRA. That's now the prevailing opinion in conservative legal circles, this hostility toward voting rights, and I think civil rights more broadly – although Anthony Kennedy sometimes jumps back and forth. As we saw in 2014, new voting restrictions in four states – North Carolina, Texas, Wisconsin and Ohio – came before the Supreme Court on an emergency appeal basis, and in three of those instances the Supreme Court failed to block laws that restricted voting rights. So there's a worry that the court is not going to protect voting rights.
I was struck by the section in your book about the racist police violence that happened shortly after LBJ signed the Voting Rights Act, since police violence is such a huge issue today. What's the significance of the resurgence of this fight for voting rights happening now, amid Black Lives Matter and the broader fight against racist police practices?
That's a really interesting point, and something I hadn't thought that much about. But you know, the 1965 Watts riots in California happened just five days after the Voting Rights Act was passed. And in the subsequent years – '66, '67, obviously '68, after Dr. King was killed – there were huge riots in American cities. That was because of a lot of factors – the war in Vietnam, domestic unrest – but it was certainly true that the relationship between poorer African-American communities and the police was not good at all. You saw that in Watts, you saw that at the 1968 Democratic National Convention, when the police beat Democratic protestors. Generally speaking, when people feel like they're not respected, that leads to this kind of violence and these sort of outrages. I don't think it's fair to say that there's a direct correlation between new voting restrictions and people being killed; I think that would be a stretch to assert. But I do think the fact that places around the country are trying to make it harder for African-Americans to vote certainly sends a very distressing signal about the state of civil rights in 2015.
We're about to head into the first presidential election since the VRA was gutted. What does that mean for voter access on Election Day 2016?
Since the 2010 election, 21 states have new voting restrictions in place, and in 14 of those states these restrictions are going to be in effect for the first time in a presidential election. For instance, Wisconsin has a new voter ID law, and North Carolina cut early voting and eliminated same-day registration and did a whole bunch of things to make it harder to vote – these restrictions are going to be in place for the first presidential election in these states. And what that means is: as there's a higher turnout, more voters are going to be affected by these measures, including in key swing states.
We should also expect that as state legislatures come back into session in early 2016, more restrictive voting laws are going to be passed. There are states that in early 2015 held their fire to some extent, but they could come back in 2016 and pass these laws, with less time to challenge them before the courts. States that previously had to approve their voting changes with the federal government – a lot of the South and also some non-Southern states – now can implement discriminatory voting changes without getting federal approval. So places like North Carolina or Georgia or Texas can do things at the last minute that could only be stopped after a lengthy litigation process. We should expect that state legislatures will pass new restrictions, and that local jurisdictions will make changes, and this could happen very close to the election and be difficult to stop in time.
What about the legislation that's being introduced in Congress to address these issues? Do you expect that to a) get anywhere, or b) significantly help the issue?
I don't expect any real legislative movement in this Congress. I mean, this Congress has not distinguished itself by action on any front. And you clearly have elements of the Republican Party that are very hostile to the Voting Rights Act – they don't view it as in their interest for there to be a strong Voting Rights Act.
I do think that on the merits, the new bill that was introduced, the Voting Rights Advancement Act of 2015, would be a very strong step in the right direction, for two reasons: It compels states with a recent and well-documented history of voting discrimination to have to approve their voting changes with the federal government. So it would take the worst actors and subject them to much-needed federal oversight. And it looks at voting changes that can lead to discrimination nationwide – whether that's new voter ID laws, or proof-of-citizenship requirements for voter registration, or changing the boundaries of election districts, or annexing new areas – and it says that it in places where there is a large minority population, or there are changes that tend to lead to discriminatory voting changes, that these also have to be approved by the federal government. So the bill is both covering a number of new states, but also looking at stopping these new forms of voter disenfranchisement, which is a fairly innovative way of approaching the problem. A lot of thought went into this bill. I think even the proponents of it don't think it's going to pass anytime soon, but it will lay the groundwork for discussion in future Congresses, and if Democrats are able to retake the Congress there will be a big push to pass it.
What did you think about the movie Selma and how it handled the fight for voter rights? And in general, do you feel like there's a broad enough understanding of these issues and how they affect people in our society?
Selma brought a lot of new attention to the Voting Rights Act, and that was a very good thing. I was surprised by how many people didn't know the history of Selma, and didn't know the history of Bloody Sunday before the movie – a lot of people didn't realize that people almost died, or in some cases did die, for the right to vote. It was an educational tool, particularly for younger people who don't know this history. That was very powerful.
One of the things Selma didn't do – because it was a two-hour film – is talk about what happened after Selma. And that was the point of my book: to tell the story after 1965. One of the problems we have is that so much of the history of the Civil Rights movement and the voting rights movement ends in 1965 with the passage of the VRA, and we're left to wonder what happened next. So a lot of people think the problem of voting discrimination has been solved, because the story of what happened after 1965, and the story of backlash to voting rights, hasn't been told.
There's a section at the end of your book where you bring us up to the 2000 election, and the absolute mess that was the Florida recount, during which thousands of voters were prevented from voting. And I just have to say, on a personal level, that triggered some old emotions for me. I had just turned 18 right before that election.
Yeah, so did I. It was my freshman year in college. It was a very eye-opening experience.
Same. It was incredibly upsetting as a first-time voter. So what can we take from that experience? What should we be doing as a society to make sure something like that doesn't happen again?
We've learned all the wrong lessons as a country. We thought this would never happen again, that there would never be voters disenfranchised again in the way that they were during the 2000 election in Florida. Then, 12 years later, there were seven-hour lines at the polls in Florida that disproportionally affected African-American voters and minorities, and the president of the United States, after winning reelection, said on election night, "We have to fix that." So we clearly didn't fix even the problem of Florida.
The lesson certain elements of the GOP took from Florida was that small manipulations in the electoral process can make a huge difference.
I argue in the book that the 2000 election in Florida led to a new wave of voter disenfranchisement. It wasn't necessarily a new form of disenfranchisement, but it got momentum after 2000, because the voter purge in Florida and other efforts that resulted in African-Americans being less likely to have their ballots counted was clearly a big factor in deciding that election.
What I take away from the history of voting rights since 1965 is that this fight was never settled. Every step in the right direction is always followed by two steps backwards. We end the Civil War, and there's a backlash to Reconstruction. We pass the 15th Amendment, and then we have to pass a Voting Rights Act 95 years later. We pass the Voting Rights Act in 1965, and then 50 years later we're still fighting for voting rights. This never seems to end. And the reason it doesn't end is because voting is about power. Lyndon Johnson said when he introduced the Voting Rights Act that the vote was "the most powerful instrument ever devised by man for breaking down injustice." And I think that's true. Otherwise, people wouldn't be trying to so aggressively limit the right to vote. If they can limit that power, they can push their own agenda. It's very unfortunate that we're still having this discussion in 2015, but I'm not surprised, because this has been a part of our nation's history from the very beginning.
But with this book, I didn't just want to talk about all the bad things that have happened since 1965; I also wanted to talk about all the good things that have happened since 1965. Obviously the backlash to voting rights is in the headlines today, and that will largely be what people focus on when they talk about the book. But I thought it was important to tell the history of the Voting Rights Act so people could see what it did, so they could appreciate it. A lot of these landmark civil rights laws of the Sixties are taken for granted and overlooked, and I think if we can understand what they did, and the impact they had, we can recommit ourselves to appreciating and strengthening those efforts today.