40 Acres, a mule, and a ballot

Imagine you’re playing a game with friends. You’ve made a few good moves, and you’re about to win. Just before, your friend says, “sorry, that’s not actually how this works. You have to go back to square one.” Now imagine that instead of going back to square one each time, you don’t even have a seat at the table anymore. And imagine that your life and the lives of an entire people depends on this game.

This is the Black struggle for equal citizenship and full voting rights in America.

In a democratic republic, the vote is voice. If you can’t vote, you can’t choose who will represent you. If you have no representation, you are relegated, subjugated to serfdom.

The right to vote is the fundamental rule, the basic move, that everyone, if considered truly equal, is supposed to be able to exercise. If your citizenry is purposely prevented from exercising this right, your democratic processes are laughable.

Whether through apathy or active disenfranchisement, among the cruelest of tactics wielded by White America has been to dangle the carrot of voting rights in front of those groups who they still see as chattel. Every time Black America has made a stride toward full voting rights, White America changes the rules of the game underneath our feet.

Today, we’re going to talk about the enduring struggle for voting rights. Disenfranchisement efforts are as active today as they ever were, but they’ve exchanged the baton and water hose for the jail cell and the ID card. We’ll conclude with what you can do it about, especially in the 2018 elections.

During this recounting of history, from colonial and pre-Revolutionary times to modern day, see if you can spot the pattern.

A Pamphlet for the Colored Men of Voting Age in the Southern States: What a Colored Man Should Do to Vote, pamphlet circa 1900. Read the full text by clicking on the image.

In many areas of pre-Revolutionary America (‘colonial’ times, as if those had really ended), Blacks had the right to vote. “In the earlier history of the South, free Negroes had the right to vote. Indeed, so far as the letter of the law was concerned, there was not a single Southern colony in which a black man who owned the requisite amount of property, and complied with other conditions, did not at some period have the legal right to vote” (Du Bois, Black Reconstruction in America, 1860-1880).

However, as slavery expanded and its basis on race solidified, and as the economy of the Southern states increasingly relied on the maturing slave-driven cotton industry, the free Black, the Black who could vote, “contradicted and undermined” the basis of this economic engine. So during the late 18th and early 19th centuries, “the free Negro” was increasingly disenfranchised by the voting process in the South as well as the North. Midwestern states, from Ohio to Wisconsin to Kansas, did not typically restrict the vote as territories. However, as they entered the Union, they “disfranchised the Negroes” up through to the beginning of the Civil War. This was “instigated largely by the attitude and fears of the immigrant poor whites from the South.”

“Slave codes” and “Black Codes” were enacted around the time of the Civil War (1860’s) across both the North and South to restrict the rights – movement and labor – of the enslaved and freed peoples. By and large, the basis for these codes were “vagrancy laws,” which restricted the right to vote, to bear arms, and the like. It also gave law enforcement the purview to detain freed persons for minor infractions and then to imprison them or place them in the involuntary servitude.

Does this sound familiar? Hint: The Modern American Drug War.

Following the Civil War, in 1865, the 13th Amendment to the U.S. Constitution declared that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

But it did not guarantee the right to vote for those who were freed by it. The 14th Amendment, in 1868, stated that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” And, one might assume that, if Blacks are now citizens, and if voting carries the weight of a “right” (heavier, surely, than a privilege), then now Blacks should be able to vote!

Nope. This merely guaranteed the right, not the ability, to vote.

The 15th Amendment, ratified in 1870, specifically encodes that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

Thomas Mundy Peterson.

Thomas Mundy Peterson. The first Black man to vote after the adoption of the 15th Amendment to the U.S. Constitution.

The banner for today’s post is The First Vote, November 1867, illustration by Alfred R. Waud in Harper’s Weekly. The first Black to vote, Thomas Mundy Peterson, exercised his right on March 31, 1870 in New Jersey. Lore has it that a white man, having just witnessed Peterson’s vote, declare the entire franchise (of voting) worthless if a Black man can do it.

But, hey, now we’re off to the races, right? There are new laws now. Nay, better. There are Constitutional Amendments that should guarantee that all male citizens, Black and White can vote. We all play by the same rules now, and may the best ideas for governing win. Right?

Have you heard of the Ku Klux Klan (KKK)?

During Reconstruction and the early 20th century, terrorist paramilitary groups like the KKK harassed, inflicted violence on, and murdered Southern Blacks to prevent them from voting. Legislative counterparts, at this time the Democrats, enacted laws and amended state constitutions to make difficult or impossible for Blacks to vote. Lincoln’s Republican Party, which had sought to re-enfranchise Blacks, was expunged from legislatures in the post-Civil War era. This allowed the permeation of early Jim Crow laws throughout the South, which were meant to skirt the edge of or confront directly the voting rights meant to be afforded by 15th Amendment. Combined with the relative apathy of the majority Whites, and their incisiveness, these laws and the extrajudicial enforcement by terrorist groups caused the voting participation of Blacks in the Deep South to be as low as 1% in the late 1930’s (Mickey, Paths Out of Dixie: The Democratization of Authoritarian Enclaves in America’s Deep South, 1944-1972)

How did these Jim Crow Laws work?

Can you guess how many bubbles are in a bar of soap, or how many seeds are in a watermelon? These kinds of impossible-to-answer questions were asked of Black voters at the polls, and if they couldn’t answer, they couldn’t vote. If you live below the poverty line, what if you had to pay $30 (the equivalent of $1 in 1900) to cast your ballot? Poll taxes much worse than this were used to discourage voting-age Blacks: imagine if you had to pay a cumulative fee for every year you had above the voting age. Enabled by the Supreme Court Decision in Plessy vs. Ferguson, which sanctioned and codified the concept of “separate but equal,” the solid legislative block of Southern Democrats devised these rules and many more, which subjected Blacks to different rules than their white counterparts. They even worked it out to hold Whites-only Primary Elections. Moreover, challenges to these laws were met with all-white juries.

In the post-World War II era, the Civil Rights movement gained steam with activism and legal challenges to segregation. The case of Brown v. Board of Education decided that segregation could no longer rule the land. The response from White supremacists was an increase in violence against Blacks and white pro-integration activists. In response, President Eisenhower signed into law the 1957 Civil Rights Act, which provided for a Civil Rights commission that was authorized enforce voting rights. None other than Strom Thurmond performed the longest filibuster in history (over 24 hours) in an attempt to thwart the legislation, which passed with a significant majority.

Ok. good. Nowwww, we’re done. The racists lost and now they realize it, aaaaaand they’re going to get over it. Or maybe you can guess what happened next.

March on Washington 1963

March on Washington 1963

While the 1957 Act empowered the Attorney General, the Justice Department, and the courts remedy complaints and provide injunctive relief, the repeat offenders of voting rights infringement (the Southern states) continued to play games. With local officials hiding evidence, it was hard to win cases, much less in a timely fashion. Black voting rates only improved marginally. However, this law and a few others passed soon after demonstrated to Civil Rights Activists that there was a palate and penchant for action at the level of the Federal government.

Pushed over the line by protests in Selma, namely Bloody Sunday, the Voting Rights Act of 1965 was signed into law by President Lyndon Johnson. Among the provisions of the Act, Section 5 requires that known offending states must preclear any changes to their voting laws with the Federal government. In other words, “children, if you can’t be trusted with your toys, we’re going to watch every step of what you do.” In the years that followed, Black voter registration in the South increased substantially, nearly reaching parity with the rest of the country.

Protest and civil disobedience played immeasurably important roles in bringing about legislative, and we’ll get to that on Sunday, February 4 (during the Superbowl). But, in that vein, a number of grassroots, community-based tactics (aside from those that grew in to legal challenges or political movements) have been key in the strategy to increase Black voter registration and turnout. First of all, the Motor Voter law (or the National Voter Registration Act of 1993) was designed to make it easier for people to register to vote by enabling them to do it while applying for or renewing a driver’s license. Now that folks are registered, let’s give them more chances to vote: absentee and early voting (currently available in 37 states) allows people to vote before election day, which always falls on a Tuesday, a work day for most Americans. In 2008, President Obama won four battleground states in early voting. One of the ways that Black communities have exercised early voting is through “Souls to the polls:” after Sunday service, churches, activists, and volunteers help get Black church-goers to voting places.

Now, we’re all playing the same game. We had to put some folks in the corner and keep them under supervision, but we’re finally there. No more shenanigans, right?

Two of the major anti-Black and anti-democratic tactics have emerged in the modern era to thwart progress on voting rights – the definition of citizen in the 13th amendment and the Great Voter Fraud Myth.

ACLU image: still fighting for voting rights

Since the official end of institutionalized enslavement in 1965, the path to freedom has been a narrowed one, and by design: the 13th Amendment states that there can be no slavery unless you’ve been convicted of a crime (“…except as a punishment for crime whereof the party shall have been duly convicted…”). Think about that. The constitution says that you can lose your fundamental rights of citizenship if you are convicted of a crime. Then ask yourself, who decides what a crime is? Black codes, vagrancy laws, and an increasing litany of functionally arbitrary laws and rules were designed to correlate with race, much like the original system of servitude and enslavement. Consider the Drug War and the Bail system: e.g., arrest them for tiny amount of weed (while leaving their White counterparts, who use drugs more per capita, with a warning), and then make them pay money to stay out of jail. Once convicted, once branded a felon, culture stigmatizes those formerly imprisoned as unfit for social interaction and employment, and the law allows companies to reject their applications for work.

This system sets Black people up for failure. (We haven’t even talked about getting pulled over for broken tail lights and then extrajudicially murdered by police). Go watch The 13th by Ava Duvarney.

But imagine a world where there are still enough Blacks eligible to vote that they could sway influence and increase their representation. What would be your strategy? The modern Republican Party has once again tapped into the fear, avarice, and entitlement of White America by convincing them that Black and Brown people are voting illegally — voting multiple times, voting without registering, etc. Think about that: when they couldn’t steal our vote, they fooled folks into believing that we stole it. Constructed upon a simple lie, the strategy that is engaged is framed as patriotic: improved Voter ID laws to maintain election integrity. Who would argue against that?

To what lengths would this country go and what effect would it have on Black voter turnout? The state of Wisconsin implemented a complicated and costly set of mandatory Voter ID rules just before an election in 2014. See the clip from John Oliver’s Last Week Tonight for a discussion of tactics like these, including North Carolina’s tireless efforts to deny Brown people equitable voting rights and processes.

Much of this oppression and suppression was made possible by the Supreme Court’s decision in 2013 to strike down key provisions in of the 1965 Civil Rights Act, namely section 4, or the pre-clearance clause: this clause specified that states with an established history of curtailing voting rights would be required to clear their changes to voting laws with a federal commission before being allowed to do so. In the decision, faux intellectual and obviously closeted racist, Justice Scalia, said that recent votes to uphold the 1965 Civil Rights Act were “attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

In the decision by less obviously closeted racist Justice Roberts, “Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Well, the price is wrong, John, and you have little understanding of what’s really happening on local levels. Things haven’t changed. The evidence is in the aftermath of your terrible decision. As soon as SCOTUS removed these protections southern states notorious for their voter suppression fell back on their old habits, as if addicted to discrimination and power. The result is that people who had been voting legally and without interruption for decades were purged from voter rolls, or denied at the polling place because they didn’t have the right identification.

Finally, there are more prominent faces of voter and democratic oppression at the federal level. Kris Kobach, Brietbart contributor and 2018 candidate for governor of Kansas, has been a virulent opponent of voting rights in multiple locales, having co-authored the Arizona “show me your papers” laws, and maintains affiliation with the anti-immigration and white nationalist organization, Federation for American Immigration Reform (FAIR). Most recently, he vice-chaired the Presidential Advisory Commission on Election Integrity (or Voter Fraud Commission) from May 2017 to January 2018. This commission was instantiated to perpetuate a lie that was re-popularized by Trump during the 2016 presidential campaign that people voted illegally. Watch out for Kobach in 2018 and beyond. He is dangerous.

Black people made the country, but White people made the rules… and then changed them. The behavior of White America is consistent in its inconsistency. They try to send democracy all around the world, and praise the heathens when they ‘learn’ to vote. And then America spends 200 plus years preventing people from voting here. America’s governance structure is actually more like hypocrisy than democracy.

“We still don’t have the unfettered right to vote,” says civil rights activist, Andrew Young.

But, when Black people do vote, we make a difference. Look at Obama’s elections in 2008 and 2012. Look at Doug Jones’ election in 2017. Black turnout is rising, but not necessarily in mid-terms. One of the most important things you can do this year is to help get Black folks to the polls on November 6, 2018. This means starting now to fight suppressive tactics in your local government. This means driving people to the polls for early voting or on the day of the election. Note that this is the strategic focus this year for Black Lives Matter: get us to the polls.

At the end of the Civil War, they promised us 40 acres, a mule, … and a ballot. We’re still waiting on all three.

Here are some other venues where you can start making a difference:

  1. Let America Vote: https://www.letamericavote.org/about/
  2. ACLU: https://www.aclu.org/issues/voting-rights/fighting-voter-suppression/fighting-cuts-voting-access
  3. League of Women Voters: https://www.lwv.org/voting-rights/fighting-voter-suppression
  4. Vote Riders: https://www.voteriders.org/

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