The history of voting rights in America is not race-blind

When an organization which seeks to make democracy more functional and representative writes about voting rights history in the context of Black History Month, where should it begin? 1619? 1870? Many options exist, but this post uses the U.S. Civil War as a backdrop, a conflict instigated by Southern states in an explicit effort to maintain the vicious system of chattel slavery of Africans in America. 

While the war itself only lasted four years, it resulted in an estimated 620,000 deaths – similar to the current population of the entire state of Vermont. It was “a war between the old and new, slavery and freedom, barbarism and civilization,” as Frederick Douglass recalled in 1877. And so in 1865, while the blood still flowed, a scarred nation was at the threshold of a new Constitutional system adopted in direct response to the massive schism caused by the legalized enslavement of Black people. Over the next five years the states would adopt the 13th, 14th, and 15th Amendments – what historians like Eric Foner have called the Second Founding. 

Much like how the 1787 Constitution won against the Articles of Confederation in debates in Philadelphia and the succeeding Federalist Papers, the Reconstruction Constitution replaced previous notions of citizenship, strengthened the relationship between citizens and Congress, and diminished the centrality of state governments in our democratic system. As Justice Kentanji Brown Jackson explained in the Merrill v. Milligan oral arguments last fall, the Framers of this new Constitution were concerned that there was no existing constitutional basis for Congress to ensure that Black Americans could be made equal to white Americans. This fear was not abstract: shortly after Reconstruction was ended by the Compromise of 1877, racial segregation policies took hold throughout the former Confederacy and were legitimized by the 1896 U.S. Supreme Court case Plessy vs. Ferguson. 

Our Second Founding, then, which includes the 14th Amendment’s Equal Protection Clause, was ratified specifically to allow Congress to enact laws to prevent state and local backsliding toward the antebellum regime – the legalized and systematic subjugation of Black Americans – which had lost both on the battlefield and in Congress. Thus, our new Constitution requires that Congress have the authority to secure the rights of Black Americans, and is thus inherently race-conscious. Indeed, the functional purpose of our Reconstruction Constitution is to give Congress race-conscious remedies to promote societal equality, as made explicit in the Enforcement Clause found in each amendment, which states, “Congress shall have power to enforce this article by appropriate legislation.” 

The Reconstruction Constitution and the racist backlash after the ending of Reconstruction are the legal and historical foundations for the Voting Rights Act of 1965, passed one hundred years after our country embarked on its Second Founding. Contrary to the arguments of the state of Alabama in Merrill v. Milligan, which is still pending a decision from the Court, the Voting Rights Act was passed in order to actualize Congress’s race-conscious authority in the realm of voting rights. Congress cannot ensure that Black voters are protected in a redistricting scheme, of course, if neither Congress nor the state can acknowledge where Black voters live within such a scheme. 

And yet today a peculiar argument persists that our Constitution requires that laws are “race-blind”; that is, laws cannot intend to address the badges and incidents of slavery as they currently exist and persist. Despite there being no contextual basis to support the idea of a “race-blind” Reconstruction Constitution, it appears to be increasing in either popularity or attention: Alabama and others are gaining renewed success with this ahistorical argument in the context of voting rights, claiming that political redistricting cannot be done in a race-conscious way. Florida and South Carolina are making the same argument in the context of education, with South Carolina advancing a bill – just in time for Black History Month – which will inhibit an accurate teaching of the history of race in the United States. Indeed, similar bills have passed  in state houses across the country, especially in a geographically non-coincidental area of Kentucky, Arkansas, Mississippi, Tennessee, Alabama, Virginia, South Carolina, Georgia, and Florida. Such efforts to whitewash the Second Founding began immediately after the Civil War ended and often centered around the Lost Cause myth.

So, in the face of a US Supreme Court which has embraced “race-blindness” as an unwritten Constitutional requirement, we will continue to support and celebrate voting rights efforts at the state and federal level – including the John Lewis Voting Rights Advancement Act, which would revive and revitalize the bipartisan Voting Rights Act that passed the U.S. Senate 98-0 as recently as 2006. 

Reaffirming that long-term, year-round commitment is our constitutionally faithful recognition of Black History Month.  

Just as importantly, the next frontier is state governments, which should work toward passing their own state Voting Rights Acts to ensure all voters are effectively protected equally within their jurisdictions. In the spirit of the Reconstruction Constitution, so far California, New York, Oregon, Virginia, and Washington have passed their own Voting Rights Acts, with more states like Connecticut, New Jersey and Maryland considering their own this year.  

We explore these efforts more in a second post: A Path Forward for Voting Rights: State Voting Rights Acts. 

Image of the 15th Amendment from the National Archives.