The March on Washington, 1963

By Rahsaan Hall, Director of the Racial Justice Program at the ACLU of Massachusetts

This is the second in a series of blogs for Black History Month 2020, covering the ACLU's 100 years of racial justice advocacy.

Since the ratification of the 15th Amendment in 1870, America has been embroiled in a tug-of-war to truly live into its promise of being a representative democracy. It took the presence of federal troops to ensure that Black people were able to vote in the reconstruction south, but as soon as those troops were removed, Blacks in the south witnessed the rise of black codes that criminalized Black people’s actions, and lynching as forms of social control. These regressive laws and murderous acts of brutality were accompanied by southern legislators and municipal officials introducing restrictions on Black citizens’ right to vote.

Despite the nation currently celebrating one hundred years of women’s suffrage, Black women — who were critical to the movement — were excluded from reaping the benefits of the hard fought franchise. The reality is that all women did not have the right to vote until the Voting Rights Act of 1965 (VRA) was passed. Even in the aftermath of this landmark piece of legislation — the crown jewel of the civil rights movement — the act and the principles it stands for have consistently been under attack.

The ACLU’s advocacy for this most fundamental of rights came into prominence within the last two decades. Recently, the ACLU defeated Kansas Secretary of State Kris Kobach in his effort to introduce a discriminatory proof-of-citizenship law that would have disenfranchised tens of thousands of voters, including many Black voters. The ACLU also challenged four Georgia counties’ failure to provide sufficient polling resources in the state’s most populous areas that included high concentrations of Black voters, resulting in long lines and unprocessed absentee ballots on Election Day. But the work didn’t begin just within the last twenty years.

As early as 1964, the ACLU was involved in the landmark case Reynolds v. Sims, which solidified the concept of “one person one vote.” Although the case was not specifically brought on behalf of Black plaintiffs, the precedent established apportionment standards that would help make state legislative districts more representative. This was particularly important for state redistricting plans in districts that had higher concentrations of Black voters. This ruling alone, however, would not protect Black voters from disenfranchisement.

When the VRA was enacted in 1965, it pulled the country another step closer to fully realizing the promise of representation. The VRA prohibited state and local governments from enacting laws or engaging in practices that discriminated against people of color, and was later amended to protect certain language minorities. The VRA also included a coverage formula identifying certain states that, given their history of voter disenfranchisement, were required to seek preclearance before making any changes to voting plans or practices. The VRA was initially authorized for five years but was reauthorized again in 1970, 1975, 1982, and most recently in 2006 for 25 years. During the congressional hearing for the most recent reauthorization in 2006, the ACLU submitted a report detailing 293 cases that the organization brought or participated in across 31 states since June 1982.

One of those cases was Miller v. Johnson. In 1991, pursuant to the VRA, Georgia and eight other initial states had to seek pre-clearance for any changes to voting plans or procedures. This was supposed to ensure that the states did not deny or abridge citizens' rights to vote based on race. In Miller, the ACLU defended the Georgia General Assembly’s preclearance effort to develop a reapportionment plan that satisfied the Department of Justice’s (DOJ) desire to increase majority Black districts from two to three. The DOJ had previously rejected two redistricting plans and instead cleared a plan that was based on reapportionments developed by the ACLU for the Georgia General Assembly’s Black Caucus called the “max-black” plan.

The Georgia General Assembly created the districts, and in the subsequent election Georgia voters elected three Black legislators. White voters from one of the districts sued on the grounds that the districts were drawn with race being the only determining factor, in violation of their equal protection rights. Unfortunately, the Supreme Court agreed and found the districts to be unconstitutional. In a cruel and continuous irony, advocates are forced to used supposedly race-neutral remedies to achieve racially just outcomes — an impossible task, and a dilemma that animates the constant push and pull of this intractable tug-of-war.

The ACLU has also strained to pull the courts closer to the promise of representative democracy in one of the most significant voting rights cases of our times: Shelby v. Holder. In Holder, Shelby County, Alabama challenged the “coverage formula” and the preclearance requirement of the VRA. The ACLU intervened in the case on behalf of the Alabama State Conference of the NAACP and several African-American residents of Shelby County whose voting rights were directly impacted by the county’s challenge. In June of 2013 the Supreme Court, in a decision that continues to impact us today, gutted the VRA by invalidating the coverage formula, rendering the preclearance requirement impotent.

Since this crushing blow we have seen a significant increase in restrictive voter disenfranchisement laws throughout the country. But not to be outdone, the ACLU has continued to fight through litigation, legislation, and grass roots advocacy. We’ve challenged regressive voter ID laws, purges of voter rolls, and arbitrary registration cutoffs. We’ve also been fierce advocates and supporters for congressional legislation reauthorizing the VRA coverage formula. But most importantly, we have been in the streets and in community with our partners who have been fighting to protect the vote, fighting to end the disenfranchisement of formerly incarcerated people, educating voters on their rights, and encouraging voter registration.

If this nation is ever to fully realize its promise of being a representative democracy, it must honor the 15th Amendment, the initial effort to enfranchise the victims of America’s original sins of genocide and slavery. It is true that the tug-of-war between freedom and repression has been long and arduous, but the ACLU is honored to be among those who will continue to heave toward liberty for as long as it is necessary.