New Voting Laws: Bending the Arc of History Away From Justice


The current generation of laws could disenfranchise millions.


President Lyndon B. Johnson holds the signed Voting Rights Act of 1965. (AP)

Lyndon Johnson was riled up.

The Texas senator hadn't yet announced his candidacy for the presidency, wouldn't announce it until it was too late as it turned out, but there he was, privately campaigning, secretly moving to assure key journalists that he was not the scourge of civil rights they thought he was. As Senate Majority Leader, he had helped pass the 1957 Civil Rights Act, had he not? Breaking through nearly a century of Southern intransigence on civil rights, he had herded the "old bulls" of the Senate, some of them unabashed racists, into passing a federal law that made it easier for blacks to vote.

So there he was, in April 1960, already playing catch up to the aggressive Kennedy machine, on an airplane with a journalist named Howard B. Woods, the editor of a black newspaper called the St. Louis Argus. And Johnson was in full throat. Here's how Robert Caro, in Passage of Power, his masterful new installment of his colossal biographical series on the life and times of Johnson, recounts what happened next:

The Senator, tie-less and in shirtsleeves, was eating cookies and drinking a tall, and stiff, Scotch, but when Woods ask him about the civil rights bill "which seems to please no one," saying, "Senator, the bill, as it was finally passed, was admittedly watered down," Johnson forgot about the cookies and the Scotch, and leaned forward across the table, looking Woods "straight in the eye" in a way the editor found quite memorable.

"When we say every man has a right to vote, that is not watered down," Lyndon Johnson said." The important thing in this country is whether or not a man can participate in the management of his government. When this is possible, he can decide that I'm no good." George Reedy slipped into the seat next to Woods, but Johnson didn't need Reedy now. "Civil rights are a matter of human dignity," he said.

"It's outrageous that all people do not have the dignity to which they are entitled. But we can't legislate human dignity -- we can legislative to give a man a vote and a voice in in his own government. Then with his vote and his voice he is equipped with a very potent weapon to guarantee his own dignity." [Emphasis added.]

Just four years later, Johnson, successor to a martyred president, astonished the country and the world by using his preternatural political skills to push passage of the Civil Rights Act of 1964. The next year, he used the same combination of bluff and bluster, of carrot and stick, to push passage of the Voting Rights Act of 1965. The old Senate bulls were done, finished. Those two pieces of federal legislation brought the vote to millions of Americans who had been effectively disenfranchised because of their race. American politics has never been the same since.

Today, the trumpet calls again on civil rights and voting rights. In the past few weeks, I've written a great deal about the topic, joining the ranks of journalists like Ari Berman and Rachel Maddow and Ryan Reilly in trying to chronicle and make sense of Republican efforts all over the country to suppress the ballots of millions of registered voters. I have done so because I believe that these laws -- photo identification requirements, bans against early voting -- are similar in their discriminatory nature and effect to some of the most odious Jim Crow laws the nation endured during the first half of the last century.

Last week, as one federal judge after another struck down these new measures, as one court after another called out Republican lawmakers for the lack of evidence supporting the push to stop "voter fraud," it dawned on me that this national debate suffers, as so many do these days, from a lack of a common starting point. There is so much fear. There is so much ignorance. There is so much exaggeration. Here are six of the most frequent comments I get when I write about voting rights followed by my attempts at a few answers that perhaps can get us talking about this in a more productive way.


1. We need these new voter ID laws to stop voter fraud. This is a logical starting point because no one is for voting fraud. But no state lawmaker, attorney general, or election law expert has yet come into court this year and established that in-person voting fraud is actually happening. For example, in Washington last week, in the federal trial over South Carolina's voter identification law, the Associated Press reported that State Sen. George "Chip" Campsen III "testified that he could not find cases of voter impersonation in South Carolina, but added that the state lacks the tools to root them out."

In Pennsylvania last month, where the Republican House Majority Leader proudly proclaimed that his state's new voter identification laws would give the state to Mitt Romney, officials also were forced to concede at trial in a stipulation that there is no evidence of in-person fraud. In Texas, the statistics reveal 50  prosecuted incidents of voter fraud in the past ten years -- an average of 5 per year -- in a state with a population of more than 25 million. This is what opponents of these laws mean when they talk about the measures being a solution without a problem.

2. We need these new voter ID laws to stop illegal immigrants from voting. This is the uglier version of the sentiment identified above, a complaint that links the myth of widespread voter fraud with the growing realization that America is slowly but surely losing its white majority. The question of illegal immigration, and how America ought to deal with it, is a legitimate policy question our political leaders need to resolve. But there is even less evidence that illegal immigrants are voting in our elections than there is evidence that in-person voting fraud is a legitimate problem among American voters.

What often is lost in the political debate over these new restrictive laws -- what's lost in the faux outrage over voting integrity -- is the central fact that registered voters in these states (and everywhere) don't just walk up today to the ballot box and cast their votes. Even without the restrictive new laws, registered voters have to prove who they are, either by providing identification or by matching their signatures on voting cards or by other means. These new laws are all about rejecting these forms of identification in favor of new ones that require, in some cases, a great deal of effort to obtain.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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