This episode of Justice Above All discusses voter challenges and voter turnout ahead of the November 5, 2024 election. Our guests discuss how voter intimidation and voter suppression tactics continue to pose systemic barriers to Black voters. Even while this is occurring, Black voices are not being completely silenced: organizers are building Black political power in the South and celebrating major wins. Ahead of the November 2024 election, the Legal Defense Fund (LDF) won two lawsuits which resulted in new, majority-Black congressional districts being created in Alabama and Louisiana. As a result, Black voters succeeded in electing three candidates of their choice to represent them in the House of Representatives (Shomari Figures and Terri Sewell in Alabama and Cleo Fields in Louisiana). Alabama and Louisiana are just two examples of places that illustrate the occurrence of some of the myriad forms of voter suppression tactics, as well as the effectiveness of voter advocacy in empowering Black voters to enact their right to vote.
Research Manager, Thurgood Marshall Institute
Former Manager, Black Voters on the Rise and Voting Special Counsel, Legal Defense Fund
Associate Professor, Department of Political Science, Emory University
The Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution were passed to rebuild the nation following the end of the Civil War, and they are collectively known as the Reconstruction Amendments. These amendments abolished slavery and involuntary servitude, with the exception of those people who had committed a crime, granted citizenship to those who were born in the United States, and expanded the right to vote to many more citizens, regardless of race, color, or previous condition of servitude.
The Voting Rights Act of 1965 (VRA) prohibited discriminatory state voting barriers and, crucially, established a federal preclearance process for voting policy changes in certain jurisdictions. States and jurisdictions with a history of voting discrimination or disparities were required to seek approval from the Department of Justice or the U.S. District Court for Washington, D.C. before making changes to their voting laws. Preclearance was a huge success. The review process prevented discriminatory voter suppression laws from taking effect, and in turn, Black Americans experienced unprecedented access to the ballot box.
Despite the success and progress made, in 2013, the Supreme Court took its first strike and gutted the heart of VRA in its infamous Shelby County v. Holder ruling. The Shelby ruling immobilized the Section 5 preclearance process that had protected Black voters and other voters of color from discrimination for decades. The Supreme Court struck down Section 4(b) of the VRA which included the coverage formula used to determine which states and localities were subject to preclearance. The Supreme Court ruled that the Section 4(b) coverage formula was unconstitutional, effectively rendering Section 5 inoperable.
In the immediate aftermath of the Shelby County v. Holder decision, many states that were previously covered by preclearance rushed to enact restrictive voter ID laws and other voter suppression laws. Within minutes of the decision, Texas Governor Greg Abbott tweeted that the state’s discriminatory voter ID law would go into effect immediately. Data from the National Conference of State Legislatures shows that voter ID laws tripled in states that were previously covered under preclearance—jumping from 22.2% in 2012, one year before Shelby, to 66.67% in 2014, one year after Shelby. As a basis for comparison, there were minimal changes in non-preclearance states. Years of research show quite clearly that strict voter ID laws disproportionally burden voters of color.
Later in the 1800s, many Southern states began holding constitutional conventions. Summaries of the conventions show a fear of the Populist movement through which people had hoped to unite white farmers and newly enfranchised Black voters. Poll taxes began to be used around this time as a means of voter suppression. One of the earliest recorded records of a poll tax is in the Louisiana State Constitution of 1898. It states “No person less than sixty years of age shall be permitted to vote at any election in the State who shall not, in addition to the qualifications above prescribed, have paid on or before the 31st day of December, of each year, for the two years preceding the year in which he offers to vote, a poll tax of one dollar per annum…” For context, in 1892 in Alabama, farmworkers made $13.75 monthly before paying for board. Paying the poll tax would be just under 1% of an Alabamian farmworker’s yearly income. In 1962, the Twenty-Fourth Amendment to the U.S. Constitution was passed, outlawing poll taxes in federal elections. However, it would not be until the 1966 U.S. Supreme Court case Harper v. Virginia State Board of Elections when poll taxes were first also outlawed for state and local elections
Simultaneously, literacy tests were being widely administered in many Southern states. The Alabama State Constitution of 1901 stated that beginning in January 1903, voter eligibility would be contingent upon being able to “…read and write any article of the Constitution of the United States in the English language,” in addition to the requirement of being male and at least twenty-one years old. Although some Black people had learned to read while they were enslaved, this was not the norm. Moreover, the literacy tests tested more than just being able to read: these tests asked questions about the government, including the Constitution, that the average citizen would likely not have all the answers to. The tests were also extensive; Alabama’s literacy test from 1965 had 68 questions, many of which were open ended. These literacy tests took advantage of the fact that Black people were excluded from formal education spaces. Even though this was the case, Black people were still expected to succeed in literacy tests in order to exercise one of their unalienable rights. To make matters worse, Alabama and other states had an exemption for passing the literacy test, and that exemption is known as the grandfather clause. Generally, the clause removed the literacy test requirement for men who 1) previously served in the U.S. military, 2) were the descendant of someone who had served in the U.S. military, or 3) were the descendant of someone who was eligible to vote before 1867. All categories were nearly impossible for Black men to meet due to their disenfranchisement prior to the Reconstruction Amendments.
Primary elections are held to determine which candidates will run later in a general election. Although they are common across all U.S. states today, they were not widespread until the mid-to-late 1870s. In the years following Reconstruction, Black citizens in the U.S. South experienced disenfranchisement and saw the power of the Republican Party, then a champion of rights for Black people, diminished. Southern politicians from the Democratic Party took that as an opportunity to expand their power and established all-white primaries which excluded everyone who was not white from participating. All-white primaries would not be struck down until the 1944 Supreme Court decision Smith v. Allwright. LDF Founder Thurgood Marshall skillfully and successfully argued the case before the Supreme Court.
In recent years, LDF has filed several lawsuits challenging voter suppression laws and discriminatory redistricting policies across several states.
Houston Area Urban League (HAUL) v. Abbott is a lawsuit challenging Senate Bill 1 (SB 1), a Texas law that greatly restricts access to voting. SB 1 was signed into law by Governor Greg Abbott in 2022 and includes several suppressive voting provisions that will make it much harder for Texans to vote and will disenfranchise some altogether, particularly Black and Latinx voters and voters with disabilities. The lawsuit argues that SB 1 violates the First, Fourteenth, and Fifteenth Amendments of the U.S. Constitution and Section 2 of the VRA. The plaintiffs argue that the law violates the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Section 208 of the VRA.
Alabama Senate Bill 1 (SB 1) was signed into law by Governor Kay Ivey in March of 2024. SB 1 criminalizes absentee ballot application assistance. This provision particularly impacts incarcerated voters, voters with disabilities, and low-literacy voters. The lawsuit, Alabama State Conference of the NAACP v. Marshall, argues that SB 1 violates various laws including the 1st and 14th Amendments and Section 2 of the VRA. Civil rights organizations filed the lawsuit on April 4, 2024, and LDF joined a May 2024 motion for a preliminary injunction.
Allen v. Milligan was a landmark redistricting case that challenged Alabama’s 2021 congressional map for violating Section 2 of the VRA. Section 2 prohibits racially discriminatory voting practices and procedures. LDF Deputy Director of Litigation Deuel Ross argued the case before the U.S. Supreme Court on October 8, 2022.
On June 8, 2023, the U.S. Supreme Court ruled in favor of LDF and Black voters, affirming the district court’s order striking down Alabama’s congressional map for violating the VRA by diluting Black political power. The decision required Alabama to redraw its map to include an additional majority-Black district where Black voters have the opportunity to elect candidates of their choice. In its decision, the court also affirmed that under Section 2 of the VRA, race can be considered in the redistricting process to provide equal opportunities to communities of color and ensure they are not packed and cracked in a way that impermissibly weakens their voting strength.
In March 2022, LDF filed Robinson v. Landry (formerly Robinson v. Ardoin) challenging discriminatory congressional redistricting maps passed by the Louisiana legislature in 2022 as a violation of Section 2 of the VRA. The lawsuit argues that the maps passed by the legislature dilute the voting power of Black Louisianans and deny Black voters an equal opportunity to elect candidates of their choice because they fail to add a second majority-Black district.
