America's New War Over Civil Rights

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Does the pernicious war on voting access require any less of a moral response than the Civil Rights movement of the 1960s?

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Library of Congress

Welcome, Dennis Lieberman and Tom Ritchie Sr., to what surely is a select group in history -- election officials who get threatened with dismissal for trying to help voters vote. The two men work in Montgomery County, Ohio, and today they are fighting for their jobs. The men are Democrats and are involved in a political fight with the Ohio Secretary of State, a Republican named Jon Husted. On Friday, Husted suspended Lieberman and Ritchie for disregarding a recent early-voting directive from his statewide office.

What was the transgression that could cost the two men their positions? Lieberman and Ritchie had the temerity to propose that county election officials should continue to offer early-voting hours on weekends to registered Ohio voters so that more of those voters could more easily cast their votes. Earlier last week, under fire and in court, Husted had decided that all elections offices statewide would limit office hours this cycle, a move Democrats said would deprive Ohioans of dozens of days worth of early voting.

On Sunday, the Columbus Dispatch reported:

Husted said he based his decision to bar weekend hours after consulting with local elections officials, many of whom were concerned about cost. But Aaron Ockerman, executive director of the Ohio Association Election Officials, told the Dispatch that "we would make that work" if directed to stay open until, say, noon the Saturday before the election.

Husted now alleges insubordination. And what do his mutineers Lieberman and Ritchie say? Ritchie says that the Republican limitations on early voting hours represent "a continued attempt to suppress Americans from exercising their right to vote." Lieberman says: "I believe that this is so critical to our freedom on America, and to individual rights to vote, that I am doing what I think is right... In 10 years, I've never received a threat that if I don't do what they want me to do, I could be fired."

Two local Democrats standing up for "freedom and "individual rights" -- so naturally they have to be fired, right? The Ohio voting restrictions apply to all voters, regardless of race, color, creed, or financial status, right? That's what distinguishes today's professional assault on voting rights with the tendentious assault on voting rights in the last century, right? Wrong. There is no subtlety at play. There is no misdirection. Here is what Franklin County* Republican Party Chair Doug Priesse wrote over the weekend:

I guess I really feel we shouldn't contort the voting process to accommodate the urban -- read African American -- voter-turnout machine. Let's be fair and reasonable.

Priesse's other job title? He's an election official in Franklin County. Think Husted is going to try to fire him for making such a "fair and reasonable" suggestion? Me either. In Ohio, evidently, career trouble comes only to those election officials who seek to make voting more accessible to voters. Soon, a federal judge will issue a ruling that will resolve this ugliness. That's the good news. The bad news is that the Republicans, who will likely lose, will almost certainly appeal.

1962

Fifty years ago this month, in the scorching summer of 1962, the great civil rights story was the battle over how fast (or how slowly) the University of Mississippi would be forced to desegregate itself for James Meredith, the Air Force veteran who had first sought admission to Ole Miss in January 1961. Mississippi officials had stalled Meredith by bureaucratic means, by legislative action and by endlessly appealing the case. In 1962, the battle even broke out into public view before the 5th U.S. Circuit Court of Appeals.

At the time, the Fifth Circuit was a lonely citadel of hope for black citizens, like Meredith, who were seeking a measure of equality with their white neighbors. Eisenhower judicial appointees like John Minor Wisdom and Elbert Parr Tuttle fought doggedly against obstructionist court colleagues and bigoted state officials to enforce the United States Supreme Court's self-contradicting mandate, contained in the second Brown v. Board of Education ruling, of  desegregating Southern public schools with "all deliberate speed."

Ultimately, however, it would take more than a judge's order to open up Ole Miss. It would take federalized troops sent by President John F. Kennedy. The headline over Claude Sitton's October 2,1962 story in The New York Times says it all: "3,000 Troops Put Down Mississippi Rioting And Seize 200 As Negro Attends Classes; Ex-Gen Walker is Held For Insurrection." All this, because 50 years ago there was still so much official resistance to the idea that blacks and whites should be equal under the law. 

Meredith made it into the University of Mississippi. But it would take three more years, the assassination of President Kennedy, and the extraordinary legislative skills of his successor, Lyndon Johnson, to gain passage of federal legislation designed to help protect minority voting rights from the whims and caprices of the majority. That's how we got the Civil Rights Act of 1964 and the Voting Rights Act of 1965. After the marches and the sit-ins and the protests and the arrests and Chaney, Goodman, and Schwerner.

One stark lesson from the Meredith era was how successful local officials could be in thwarting both the letter and the spirit of the law. Voting laws have evolved between now and then. The fight isn't so much about the right to vote but about the ability to exercise that right. And that has meant new tactics from those who continue to seek ways to suppress the votes of the nation's minorities (racial, economic, and otherwise). It's a national fight. And it may determine the outcome of the coming election. The fact is, the right to vote is nowhere near as well-guaranteed as you may have thought it was.

2012

Fifty years after the Battle of Mississippi, we endure the scorching summer of 2012. Today, the great civil rights story is the intensifying battle over how fast (or how slowly) Republican lawmakers and bureaucrats can take away from their fellow citizens the effective right to vote. In Ohio and Texas and other states, it's about restrictions on early voting. In Pennsylvania, South Carolina, and other states, it's about voter identification laws, which could disenfranchise millions of registered voters this election cycle.

Sponsored by the American Legislative Executive Council and choreographed by local GOP officials, these measures all have roughly the same aim: making it harder, and not just less convenient, for certain types of registered voters to be able to effectively vote. One party, in other words, is systematically enacting and enforcing legislation designed to suppress the votes of those citizens who are most likely to vote against that party. If this were happening in Russia, we'd be aghast -- and hectoring that country insufferably.

Proponents of the state measures say they are designed to ensure voter accuracy and to preclude voter fraud. But incidents of in-person voter fraud in America are laughably few. In Pennsylvania last week, a state court judge elected as a Republican wrote that it is irrelevant, as a matter of law, that the state offered no factual bases for restricting voter access. The justification the state did offer? That the mere possibility of voter fraud was enough to justify blocking registered voters from their ballots.

During the the Civil Rights era, most Americans had nothing but scorn for southern officials who ginned up such empty rationales to deprive black people of their voting rights. Does the fact that today's measures are aimed at poor white people, too, and the elderly, and recent immigrants, make them any less odious? Earlier this year, Florida came for the ballot of a man who had fought in the Battle of the Bulge. Tennessee came for the ballot of a 96-year-old woman. Those are the stories we know about.

And yet, so far, the new civil rights war is a powerful story still without consistent protest or condemnation from America's political, spiritual or civic leaders. President Barack Obama, the former law professor, said nothing last week about the Pennsylvania voting law that is discriminatory in both its intent and its effect. Neither did Attorney General Eric Holder. No member of Congress rushed back from vacation to Washington to decry the news. On television, it was Jon Stewart who most aptly memorialized the ruling:

A TIME AGAIN FOR JUDGES

Why so little public outrage about such a plainly partisan effort to undermine the democratic process? For starters, voter ID laws don't make for good television. There is nothing compelling about showing an old lady not having a photo ID. And, so far, there have been no fire hoses or German Shepherds. The poor, the sick, the elderly, the hourly worker, the person without a good grasp of English -- these are not the folks who have the time to protest. If they did, they'd have time to vote early or to get the special identification the GOP now demands they have.

Who in power and authority will speak for these voiceless people? Usually, that's the role of the federal courts, the branch designed to protect the rights of individuals against the tyranny of the majority. But so far the United States Supreme Court has been largely the problem, not the solution. When the Pennsylvania judge declared last week that it was legally irrelevant that the new law had been passed expressly to suppress Democrat votes, he did so after favorably citing a 2007 decision by justices in Washington.

That decision, Crawford v. Marion County, is part of what distinguishes this era from the Civil Rights era a half century ago. The gulf between the Warren Court and the Roberts Court is perhaps the widest in the history of the Supreme Court, a chasm marked by the Court's most liberal and most conservative eras. At least James Meredith knew that the federal courts, by and large, were on his side. No putative early voter in Ohio, no impoverished car-less worker in Pennsylvania, no Spanish-speaking citizen in Texas, can reasonably say the same thing today.

Indeed, one of the great ironies of the Republican push to disenfranchise voters is that it comes at a time when the Court's conservative justices are poised to strike down Section 5 of the Voting Rights Act, the section that requires federal pre-clearance of certain state election laws. It will be fascinating to read the future work of Justice Clarence Thomas, already long on the record against Section 5, when he writes yet again about the nation's "lack of current evidence of intentional discrimination with respect to voting."

In the coming weeks, as the political rhetoric soars and swoops, we are going to begin to see a string of federal court rulings over these restrictive voter laws. These rulings will largely determine how many people who have a right to vote in this country, and who want to vote in this country, will have their votes counted.  How fair and inclusive do we want our elections to be? What does the constitutional right to vote really mean? Let's not fool ourselves: The challenge for these judges today is no less vital than it was 50 years ago, the stakes are no less high.

*I originally (and incorrectly) labeled Priesse chair of Montgomery County GOP.

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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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