Jurisprudence

We Need to Rewrite the Constitution to Stop Voter Suppression

We’ve reshaped society before to make America more equitable. We can do it again.

Voters wait in line outside while wearing masks and face coverings.
Voters in Milwaukee on April 7. Scott Olson/Getty Images

On April 7, Wisconsin held a statewide election for party primaries and a critical state Supreme Court seat—in the midst of the COVID-19 pandemic, decisions by Wisconsin’s Supreme Court, the U.S. Supreme Court, and state legislators effectively blocked vote-by-mail procedures that could have assured more ballots were cast safely. A week later, the Kentucky Legislature overrode the governor’s veto to further tighten voter ID requirements even while DMV offices remain closed, making it even harder for many voters to cast their ballots.

These developments, which endanger voters’ health in addition to their civil rights, are just a more baldfaced iteration of ongoing attacks on the fundamental institutions of democracy. Before the pandemic, Wisconsin officials had already purged more than 200,000 voters from the rolls, disproportionately affecting black and brown voters in a crucial November swing state. In Georgia, now-Gov. Brian Kemp faces a lawsuit over his infamous voter suppression campaign, which in 2018 undermined voter access especially in communities of color through a range of tactics from voter purges to faulty election machines, likely leading to Kemp’s narrow victory over Stacey Abrams. These battles are becoming especially fraught as Republican lawmakers and strategists double down on a strategy of democracy-rigging as their main pathway to maintaining political power.

Even efforts to expand the franchise are fraught. In 2018, Florida voters approved a landmark state constitutional amendment restoring voting rights to more than 1 million formerly incarcerated people; within months, the state Legislature passed a bill requiring these new voters to pay off their legal fines and fees before registering—a move that could cut the number of new voters in half. Congress has passed a landmark democracy reform bill, H.R. 1, that covers everything from voting rights to redistricting reform to public financing of elections and more. But there are already concerns about what this Supreme Court will do—especially after years of systematically undercutting democratic processes with rulings that gutted campaign finance regulations and the Voting Rights Act. And the Republican Party’s newfound opposition to expanding vote by mail to allow people to vote safely in the pandemic makes the thinking clear: the fewer votes overall, the better for the GOP.

The hard truth is that despite our proclamations of American commitments to democracy, we have a constitutional system that from its founding has been premised on a deeply undemocratic, restrictive view of who counts and who should have political power. This reality is not just evident in the constitutional sanction for slavery but in the systematic concentration of political power through mechanisms like the Electoral College. What’s more, the history of American democracy has consistently been shaped by a push to maintain political power in the hands of a white elite, resisting efforts to enfranchise and empower black and brown communities. Today’s felony disenfranchisement laws and limits on the right to vote, for example, have their roots in the backlash against the post–Civil War efforts to emancipate and empower black Americans. That backlash led to the rise of Jim Crow and the persistence of systematic voter suppression today.

But we have a history of radical, democratizing transformation as well. In that moment after the end of the Civil War, we remade the Constitution. For a brief moment, America sought to create a democracy freed of the vestiges of slavery and committed to a fuller realization of the ideal of democratic inclusion. The vision of Reconstruction—and the backlash against it—is instructive for us today. Now, as then, the fight over voting rights is really a proxy battle over political power and fundamental questions of race and membership in the polity. Now, as then, we need to think about democracy reform at its most transformational level: amending the Constitution, radically remaking our political institutions to emphasize equality and inclusion, taking head-on the racialized opposition to voting rights expansion.

Even with the 1865 passage of the 13th Amendment abolishing slavery, black Americans understood, real liberation would require a wholesale transformation of political and economic institutions, including expanding the right to vote, desegregation and access to public spaces and public accommodations, and economic empowerment and redistribution.  Further legislation and constitutional amendments would be required, leading to the 14th and 15th Amendments assuring birthright citizenship, equal protection, due process, and voting rights. Congress passed civil rights laws mandating equal access in public spaces and empowering the government to enforce these rights. For a moment, these provisions secured a high-water mark for black electoral power as hundreds of black elected officials were swept into office at all levels of government.

Today’s dogged efforts by GOP policymakers and judges to restrict voting rights make a lot more sense when we see them as a deliberate strategy by an increasingly minoritarian coalition to maintain political power by suppressing the political voice of black and brown voters in particular. This same strategy drove the violent dismantling of the expansive vision of democracy advanced in the Reconstruction era constitutional amendments and legislation. Paramilitary white supremacist organizations like the Ku Klux Klan and the White Leagues attacked and intimidated black voters, specifically to fracture the emerging multiracial coalitions of freedpersons and working-class whites who for a brief moment threatened to upend the traditional concentrations of political and economic power at the top. Southern states passed “black codes,” laws aimed to quietly restore racial segregation and de facto forced labor.

Like today, the nail in the coffin for this inclusive vision of democracy came from the Supreme Court. In 1876, the court voided the murder convictions of white supremacists who, in 1872, massacred 80 to 150 black Americans specifically to overturn the results of a local election in Louisiana that had handed power to freedpersons. In 1883, the court struck down the Civil Rights Act as beyond the scope of congressional power, imposing limits on the reach of the 14th Amendment that continue to kneecap efforts at tackling racial and economic inequities to this day. These rulings effectively ended federal civil rights enforcement in the South and gave the green light to the rise of Jim Crow.

Even Reconstruction era reformers—mostly white and male leaders—proved uneasy with the realities of multiracial democracy and balked at defending a full-blown affirmative right to vote for black Americans. Black advocates pushed a bolder vision for the 15th Amendment that would have nationalized election administration, taking power out of the hands of state officials hostile to black enfranchisement, and included provisions to assure equal access to elected office, not just to the ballot. Instead, Congress passed a watered down 15th Amendment that ultimately had little force and did nothing to stem the rising tide of Jim Crow.

It wasn’t until nearly a century later that the civil rights movement of the 1960s—aided by a historically aberrational Supreme Court under Earl Warren willing to push for desegregation of schools and uphold new transformative reforms like the Voting Rights Act—restored the promise of Reconstruction and emancipation, helping dismantle Jim Crow. Even then, the same patterns of backlash, some violent and some more subtle in the form of changing public policy and grassroots opposition to desegregation, reasserted segregation in other guises, from white flight to housing discrimination to the rise of the “New Jim Crow” of the mass incarceration crisis.

Viewed in the light of this history of racialized violence and the efforts to hoard political power, Trumpism is better understood not as an aberration but a continuation of the struggle for American democracy. We need to set our sights beyond just voting Donald Trump out of office. We must use this critical moment to drive the kind of transformative change that makes good on the promise of Reconstruction.

First, democracy requires structural reforms that dismantle the persisting patterns of racial hierarchy and unequal political power—and reforms that are built to withstand the backlash that inevitably follow. Passing democracy reform bills in Congress (like H.R. 1) and in the states is a start. But just as Reconstruction created the 13th, 14th, and 15th amendments, so too should we today push for a constitutional right-to-vote amendment that constitutionalizes protections against voter suppression and rigged elections, and finally corrects a systematically unequal political system that disproportionately prioritizes white voters through the Electoral College and an unequal Senate.

Second, we need to be prepared for these democratizing reforms to be undercut by opponents who will seek to ignore or undermine these new rules—as was the case in the 1870s and in the more recent dismantling of the Voting Rights Act by our current Supreme Court. That means local elections for judges, state legislators, and prosecutors are just as essential as the presidency to install officials who are truly committed to defending democratic institutions.

Third, we need to take a broad view of what liberation and enfranchisement today requires. Real democracy must encompass more than the right to cast a ballot once every few years. Especially when we look at the experience of black and brown communities, it’s clear that the right to vote doesn’t mean much unless it is closely tied to broader changes to the economic and social conditions that produce racial hierarchy and economic inequality. We need to accompany democracy reforms with policies that empower workers, limit corporate power, and address the concentration of environmental harms and poverty in black and brown communities.

And we need to bring democracy all the way down, directly empowering working families and especially black and brown communities to control the kinds of day-to-day governing decisions that directly affect economic and social well-being—democracy in the ballot box as well as on the administrative bodies from the zoning board to the water utility to the federal regulatory state. We could create direct representation for the most affected and systemically marginalized communities on administrative boards and commissions that have significant power to shape economic realities. Imagine how different policies would be if black and brown communities had representation on the zoning boards that shape urban planning decisions and hear grievances against developers that don’t do enough to invest in the local neighborhoods. Or if communities like Flint or Baltimore had more direct control over the still-poisoned water utility system, now run by state officials and privatized firms with little accountability to the public. Often we relegate high-stakes socioeconomic policy decisions to administrative bodies that are easily swayed by well-resourced interest groups. But we have in other moments created more participatory and responsive administrative institutions: In the war on poverty, grassroots groups fought for more direct community control over poverty-reduction agencies, while in recent years, U.S. cities have adopted international experiments with participatory budgeting.

Reconstruction was not a blueprint, and suffered from its own limitations—particularly its silence on women’s rights and uneasy relationship with immigration. But the experience of Reconstruction reminds us of the realities of power and violence that have historically blocked efforts at democracy reform—and the level of aspiration we should have in 2020 and beyond. Ending Donald Trump’s presidency in November is critical. But that action alone cannot tackle the deep inequities of race and power that continue to hobble American democracy. If we are to build a truly inclusive democracy, we need to remember the transformative emancipatory vision of Reconstruction—and push to transform our Constitution and our political institutions across the country.

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