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.

MYTHS AND MACHINATIONS

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.

3. The new voter laws do not create substantial burdens on registered voters. This is the most common response to challenges to the new breed of voting laws. If someone can't find the time to get a new ID, then why should they be able to vote? If I have to show identification to buy a bottle of whiskey (or Sudafed) why shouldn't someone have to show a photo identification to cast a ballot? If I can get a photo ID to drive a car why can't someone get one to vote? Here we see clear evidence of the great financial divide in American life -- the widening gap between the haves and the have-nots.

There are some registered voters for whom the new requirements probably aren't an unreasonable burden. But there are many more for whom it is. In Texas, for example, there was testimony at the voter ID trial in July that some residents -- registered voters, who have voted accurately without incident for years -- would have to travel 200 or 250 miles to get the new form of identification. In the South Carolina case, there was testimony last week that some registered voters would have to make a 70-mile, round-trip journey to get the new forms of identification. Are these not unconstitutional burdens?

4. The new Republican voter laws are the results of reasonable compromises between and among state legislators. This is false. In South Carolina, for example, we learned just last week that a compromise voter ID law, which had bipartisan and biracial support, was rejected by conservative radicals in favor of the current law that is about to be struck down by another panel of federal judges. The same thing occurred in Texas, where state lawmakers refused to keep state offices open longer to accommodate the working-class people who couldn't get their new IDs between 9 and 5.

The same is true, incidentally, in the fight over early voting laws. Early voting hours are a national success -- allowing voters who have to work regular hours on the first Tuesday in November to cast their ballots at a more convenient time. Yet in Ohio and in Florida, Republican officials sought to restrict those hours without offering a legitimate reason to do so. In Ohio, the official reason offered by the Republican Secretary of State -- that his election officials couldn't manage the extra work -- was immediately challenged by nonpartisan election officials there who said that they could, in fact, "make it work."

5. There are many restrictions upon the right to vote -- what's so vital about another such restriction? It's true, the Supreme Court has said repeatedly that states may impose reasonable burdens upon voters. No one disputes that this is so. Like any other right, the right to vote is not absolute. On the other hand, as Lyndon Johnson said 50 years ago, and as mainstream politicians today recognize, the right to vote is the foundation for the exercise of virtually all other civil rights because it helps enable those rights; it helps turn them into remedies.

If there were proof of widespread in-person voting fraud, or if were were proof that such fraud is on its way, the Republican officials pushing their restrictive new laws would have a legitimate argument to make. They could argue, for example, that it's reasonable to protect against 1,000 fraudulent votes by burdening 100,000 voters. The specific matrix isn't the point. The point, as Garrett Epps made last month here at The Atlantic, is that there has to be some factual basis for the imposition of the burdens contemplated by these laws. So far, those facts have been absent from courtrooms all across the country.

6. Burdening the rights of voters to cast their ballots is not the same as disenfranchising voters. The right to vote is useless if the right cannot be exercised. That's the lesson that Rep. John Lewis, the civil rights icon, has been trying to teach as he speaks out about the similarities between the civil rights movement of the 1950s and the voting rights movement today. That's what's so cynical and self-defeating about these new disenfranchising measures -- like their predecessors during Jim Crow they purport to be racially neutral when it fact they are discriminatory in both their intent and their effect.

These new laws require people who are poor to pay for the cost of new identification cards -- even though those people have voted fairly and accurately for decades. The new laws require people without cars to travel hundreds of miles to get their new ID cards. They require people who are old or frail or sick to present themselves for inspection at state offices. And they do so by rejecting more reasonable alternatives -- like the new voting identification law in Virginia, for example, which passed Justice Department scrutiny under the Voting Rights Act.

POSTSCRIPT

On voting rights in America, the arc of the universe has indeed been long, centuries long, from the three-fifths compromise in the Constitution to the poll tax to the literacy test. But it has always bent toward justice. These new laws seek to bend the arc backward again, to take away from people their effective right to vote because of their financial position, or because of their immobility, or because of their age or illness. And to do so despite the fact that these people, all these people, have been voting for years, for decades, by proving at the ballot box that they are who they say they are.

"Asking for an ID to verify who you are is not racist," an angry commentator wrote to me on Monday afternoon, "it's just common sense." Indeed, it is. And, indeed, such ballot verification happens all the time in every state in every election prior to the passage of all these restrictive new laws. There are ways to make America's elections more accurate. There are ways to do so that do not threaten to disenfranchise millions of Americans. There are ways to do so in a bipartisan, biracial fashion. That was Lyndon Johnson's challenge a generation ago and it is the challenge today for elected officials everywhere.