A 94-year-old senior judge, who overcame poverty and racism to become one of America’s strongest defenders of civil liberties on the bench, just issued the most damning response in recent memory to Republican-led efforts to abridge the rights of black voters.
Judge Damon Keith, who is black, remains active on the U.S. Court of Appeals for the 6th Circuit, to which he was appointed in 1977 following a decade of service on a federal district court. Keith—along with two white, Republican-appointed judges—recently heard a case involving Ohio Republicans’ blatant efforts to restrict black voters’ ability to cast a ballot. The Republican appointees ruled for Ohio, allowing the state to slash voting rights with no serious justification. In response, Keith issued the most blistering, comprehensive, impassioned voting rights dissent of the modern era, an opinion with echoes of both Martin Luther King Jr. and Justice Sonia Sotomayor. It is a stunning denunciation of the current efforts to roll back suffrage and, in Keith’s phrasing, “reverse the progress of history.” Even on the losing side, Keith has issued an opinion that no judge hereafter will be able to ignore.
Like many GOP-dominated legislatures, Ohio Republicans have spent much of the Obama era crafting legislation designed to make voting harder, particularly for minorities. The laws at issue in Keith’s case cracked down on absentee and early in-person voting. One measure requires early voters to provide their address and birthday with their ballots. Another reduces the post-election window for correcting defects in these ballots from 10 days to seven. Finally, and perhaps most gallingly, a measure forbids poll workers from helping voters who are struggling to properly complete early ballots.
What was the purpose of this crackdown? The law’s Republican sponsors barely attempted to explain their rationale. One Republican did try to justify the law during a committee debate—by explaining that he wanted to make it harder for black people to vote after church. “Should we really be making it easier for those people who take the bus after church on Sunday to vote?” he said, referring to a popular early voting program that helps black voters go from church to the polls.
Voting rights advocates sued to block the laws, insisting that they violate both the Voting Rights Act and the Equal Protection Clause of the 14th Amendment. After a lengthy trial, a federal district judge halted the measures’ implementation. But the 6th Circuit reversed the bulk of that decision, declaring that the Ohio reforms don’t actually “have a disparate impact on African-American voters.” Keith, in dissent, would have absolutely none of it. He notes that the majority reinterpreted the district court’s empirical findings to erase evidence that the Ohio laws unduly burden black voters.
But Keith veers away from pure legal analysis to situate his dissent in the broader context of social justice, penning an unusually emotional tribute to those who often faced violence in the long quest for voting rights. “Democracies die behind closed doors,” the judge writes, castigating the majority’s cavalier dismissal of black voters’ rights. “By denying the most vulnerable the right to vote, the majority shuts minorities out of our political process. Rather than honor the men and women whose murdered lives opened the doors of our democracy and secured our right to vote,” Keith asserts, the majority has allowed Ohio to suppress “the votes of the most defenseless.”
Keith then proceeds to honor some of these men and women himself in a gallery of “martyrs of the struggle of equality.” In so doing, he pointedly links his fellow judges’ disgracefully credulous opinion to past efforts of white supremacists to suppress the rights of black citizens. As the judge explains:
The utter brutality of white supremacy in its efforts to disenfranchise persons of color is the foundation for the tragedy that is the majority’s effort to roll back the progress of history. I will not forget. I cannot forget—indeed America cannot forget—the pain, suffering, and sorrow of those who died for equal protection and for this precious right to vote. I add the following publicly available historical statements to humanize the struggle for the right to be equal participants in the democratic process.
What follows are 36 “pictures and synopses” of leaders who gave their lives to advance civil rights (including voting rights) for black Americans, such as Medgar Evers and Martin Luther King Jr. He also describes in painful detail the unforgettable case of James Earl Chaney, Andrew Goodman, and Michael Henry Schwerner: “[These] young civil rights workers, were arrested by a deputy sheriff and then released into the hands of Klansmen who had plotted their murders. They were shot, and their bodies were buried in an earthen dam.”
These portraits, Keith writes, “cannot capture the full horror of those who lost their lives in the quest for equal protection and voting rights. [They are] a mere fraction of the martyrs of the struggle for equality. The assaults, rapes, murders, lynching, and utter travesty of the struggle for equality can never be fully captured in words or pictures.”
Keith draws a straight line from this tragic past to the case at hand. “As history has shown time and time again, laymen and jurists alike have actively worked to deny the right to vote to minorities, in both obvious and obscure ways,” he writes. Ohio’s new laws are just one more example of the government disenfranchising minorities under the flimsiest of pretenses.
“The birth of this Nation,” Keith continued, “was founded upon the radical principle that we, as a people, would govern ourselves.”
And voting is the ultimate expression of self-government. Instead of making it easier for all persons, unrestrained and unfettered, to exercise this fundamental right to vote, legislators are making it harder. States are audaciously nullifying a right for which our ancestors relentlessly fought and—in some instances—even tragically died. From that struggle came the Equal Protection Clause of the Fourteenth Amendment, and later, the Voting Rights Act. It is this court’s responsibility to enforce both the Constitution and the statute, and thereby safeguard this precious right to vote. In my opinion, the Majority has failed to do just that.
Keith then concludes with an extraordinary peroration:
With every gain in equality, there is often an equally robust and reactive retrenchment. We must never forget that constant dialectical tension. For every action, there is a reaction. The majority’s decision is a fateful reminder that we can never fool ourselves into believing that we have arrived as a nation. Our decision today, and more decisions like this one, will undoubtedly shape the future of this Nation because deciding who gets to vote inevitably affects who will become our leaders—a determination that is grounded in the principles long cherished and long pursued by our Founding Fathers. This is exactly why so many are actively seeking to etch away at the right to vote in assembly halls across this nation. These efforts are hardly insignificant or negligible. They are, for their proponents, necessary and highly deliberate. It is my hope that when future generations look back on these decisions, they conclude that we were on the right side of history. But today I fear that we were not.
As Keith suggests, most voting rights decisions do indeed fall “on the right side of history,” as more federal judges have been taking cues from the Supreme Court and carefully scrutinizing legislatures’ motivations for curbing fundamental rights. Voting restrictions in Texas, North Carolina, Wisconsin, Michigan, and Kansas have already fallen this summer; only Ohio has managed to fully buck the trend. In 2016, the state’s case is an outlier, and Keith’s fiery dissent may help to ensure it stays that way. Every judge to consider the legality of voting restrictions will now be forced to reckon with his opinion. And they will have to decide whether to honor the “martyrs of the struggle for equality”—or to “dishonor the struggle” of those who “died for equal protection and for this precious right to vote.”