"A really disturbing turning point": Why Bush v. Gore began a devastating new era for American civil rights

Author Ari Berman tells Salon how and when the GOP began turning the tide on voting rights

Published August 5, 2015 11:59AM (EDT)

  (Ports Bishop)
(Ports Bishop)

In 2008, when Barack Obama was elected to be America's first black president, there was an enormous wave of self-congratulatory rhetoric—rhetoric which ignored a mounting body of evidence of growing barriers to black voting rights. The viciousness of the backlash to Obama's presidency was something this rhetoric of progress was not prepared to make sense of.  Indeed, in 2013, in Shelby County v. Holder, the Supreme Court struck down a key part of the Voting Rights Act, first passed in 1965, without which Obama could never even had dreamed of running for president.

Although Black Americans were first promised the vote by the 15th Amendment, ratified in 1870, that promise had been effectively nullified by a combination of racial terrorism and political oppression until the passage of the Voting Rights Act first began to create the real possibility of a multi-racial democracy in America. The story of that promise—how the VRA came to be, the struggle to expand its effectiveness, and the mounting backlash against—is the subject of "Give Us the Ballot: The Modern Struggle for Voting Rights in America," a new book by Ari Berman, a political correspondent for The Nation.

Berman has spent years reporting from the front lines of the ongoing voting rights struggle. His book incorporates much of that frontline detail into a historical framework that helps makes sense of it -- but only to a limited extent, since the history involved is still being written, and Berman's readers may well play a significant role in shaping how it ultimately turns out. More than a passive history, this is a book which takes readers inside the living struggles that are still being fought out, as intensely now as at any other time in our history. To understand the stakes, you must understand the history. As an introduction to that history, Salon sat down for an interview with Berman, to begin exploring what he's found.

History is often told with a sense of inevitability, with a strong tendency, particularly in American history, to tell it is a story of progress. But your book, "Give Us the Ballot," makes clear that that's not really the pattern with the history of the right to vote, even after the election of our first black president. How should the story you tell be understood, and why should it be understood that way?

I think it's a story of remarkable progress, but one that's always followed by a very significant backlash. And that's not only the history of [the expansion of] voting rights in our country, but it's the history of the 50 years since the passage of the Voting Rights Act. Whenever there is a remarkable achievement -- the Supreme Court upholding the constitutionality of the VRA, or the election of the first black president—it's always met by a backlash that's even more significant than the previous backlash. So what I've realized from my research is that as the reach of the VRA has expanded, and the impact of the law has expanded, the backlash to it has grown.

The Voting Rights Act is central to the story you tell. What's the most important thing for us to know about initial passage? And what's least understood about it?

I think what's most important to understand about its passage is that the law worked -- that it really did significantly deal with the problem of voting discrimination in the South. It got rid of literacy tests. It led to the abolition of the poll tax. It led to the registration of millions of African American voters and then millions of voters more broadly.

We're always being told of cases where laws don't work, right? The health care law for example. [But] this law really worked. It was a remarkably complex undertaking that I think represented government and the country at its best, and one that had an impact not only in 1965, but it had an impact five decades later. So it really should be thought of in the pantheon of the most important laws passed by Congress. What's least understood about the act is its relevance today, and how persistent the backlash to the law was, and remains.

While the VRA forms the spine of your story, the story begins before that, with the March from Selma to Montgomery, and it ends with the ongoing Moral Mondays movement in North Carolina, and the prospect of that movement spreading further. What can you tell us about those organizing efforts and their significance?

The Selma organizing efforts were remarkable, because after the passage of the Civil Rights Act of 1964, many were pessimistic [about the prospects for] a Voting Rights Act. And indeed, LBJ... even though he wanted to do the VRA, he had told Martin Luther King that he was going to have to wait, that other issues in Congress were more pressing. What the organizing in Selma did, most notably the march on Bloody Sunday, was dramatically hasten the passage of the VRA, and also rally the public that there needed to be this law ASAP.

People who were saying, “Well, this is great, but it doesn't need to happen now,” or any number of arguments for why there couldn't a Voting Rights Act -- all those arguments were essentially obliterated by the violence in Selma. Everyone knew that there had to be a VRA, and there had to be one as soon as possible, or else there was going to be more violence, and more death, and more discrimination.

[In the present day,] the organizing I think in North Carolina around Moral Mondays was so important because there had been, since the 2010 election, a widespread effort to make it harder to vote, and those efforts intensified after the Supreme Court gutted the Voting Rights Act. And what people in North Carolina did, more significantly than anywhere else, is they stood up and said, “We're not going to take it anymore. We're not going to take this lying down. You can't just taking away our voting right and think that were not going to do anything about it.” Whereas the laws had been challenged in other states, primarily in the courts, here they were challenged on the streets, like had been done in the '60s. They were trying to dramatize to the public what these laws meant.

Even though the situation in North Carolina was significantly better than the situation in Selma, there was a similar need to go to the street to do civil disobedience, so that people could know the stakes of the issue, and understand that something had to change.

After the voting rights act was passed, it was renewed in 1970, 1975, 1982 and 2006 -- each time with a Republican president, and the GOP administration initially opposed it to some degree or another. Yet in each case, the law ended up being strengthened. What happened?

That's a great point, and that might be the least understood part of the VRA right there, you just mentioned. I don't think people realize just how bipartisan this law really was, and how many attempts there were to gut it, and how those attempts didn't succeed until 2013. Basically what happened was there was incredibly strong bipartisan consensus in Congress for the VRA, and there were always Republicans who were willing to battle their own party to get this thing passed. You see that with Congress standing up to Richard Nixon in 1970, and they stood up to Gerald Ford in 1975, they stood up to Ronald Reagan in 1982, and to some extent they stood up to the George W. Bush in 2006. And I think that's because -- well Antonin Scalia will tell you that's because the law led to a perpetuation of racial entitlement -- but I think that there was strong bipartisan consensus because there were Republicans that understood how important this law was, and they were proud of the fact that Congress had passed it. And they realize that if they didn't do something, it was going to hurt their party -- hurt their party with black voters and other voters -- but it was also going to hurt a law that they were part of. Republicans were an integral part of this law from the very beginning, and that they were going to turn their back on one of the better parts of their history.

Now Republicans don't seem to care that they're turning their back on that historic law that they helped pass and reauthorize. And they don't seem to care that they'll be hurt with black voters, because they don't believe that black voters are going to vote for them to begin with.

There are a lot of heroes in your book, both well-known and obscure, but the most pervasive presence in the story is that of civil rights leader Rep. John Lewis. What should people know about him and the role he played?

I think John Lewis is such an important character because he been in the struggle since 1965. So many people in the civil rights movement either passed away, or went on to other things. or lost interest in the voting rights fight. But John Lewis has been involved ever since 1965, And I think that's what makes him such a compelling character, that he's lived this in the late '60s, in the '70s, in the '80 and the '90s; he's been there for the darkest days of the country's history, and he's been there for the best moments in the country's history, and he has played an integral role all throughout the process. I really don't think there would be a Voting Rights Act without John Lewis, and I don't think it would've been reauthorized four times, and understood to be so powerful, without him. I think he is the most powerful living testimony to what the act did.

The contested 2000 election in Florida had a great many flaws but you point out that black voter disenfranchisement was one of the biggest stories involved, and one of the least reported. What happened there? And why is so important for us to understand?

There was a voter purge in Florida. The state told county supervisors to purge felons who were supposedly on the voting rolls. The purge list that was given to the county supervisors ended up being disproportionately African-American, and it was littered with errors, which means that African-Americans were disproportionately wrongly removed from the voting rolls.

That is the key impact for two reasons: Number one, it could have cost Al Gore the election. There were thousands of potential voters who were turned away from the polls. They were overwhelmingly Gore voters, so just in the grand scheme of things, that voter purge led to George W. Bush's election. The second huge impact of it was that I think Republicans realized after Florida that small manipulations in the electoral process could make a big difference. So Florida inspired similar efforts in Ohio in 2004, and across the country once the Tea Party took over the states post-2010.

It wasn't just voter purging, it was drastically expanded efforts to require government-issued ID, to cut early voting, to eliminate same-day registration, all of which was done to try to shape an electorate that was more conservative, more Republican, then before. Florida [in 2000] was pivotal in changing the direction of voting rights in this country. Had Gore won, we wouldn't have had the Supreme Court that gutted the Voting Rights Act; we probably wouldn't have had all this voter disenfranchisement after going forward. So I think it represented, in the modern history of our country, a really disturbing turning point.

There was also, at the same time, an election controversy in Missouri that fed into a subsequent history of struggle in the Civil Rights Division of the Bush Justice Department. What can you tell us about that? 

Missouri was similar to what happened in Florida, but even less understood. In St. Louis, the board of election, before the election, sent out voter registration cards to all these people [whose] addresses that came back as undeliverable; or, for one reason or another, people didn't get their mail, and those voters were just removed from the voting rolls, without actually being notified that they were being removed from the voting rolls. In a lot of cases, just like the voter purge in Florida, the addresses were wrong. So I would have a voter registration card sent somewhere where I didn't live, and I would be taken off the rolls, and I wouldn't be notified about it. So what happened was all these voters on election day showed up at their polling places, to find out that they weren't on the rolls. They were sent down to the board of election, it was total chaos, and a lot of people weren't able to vote.

The Gore campaign, on election day, filed a petition for the polls to stay open three hours later in St. Louis. That order was initially granted, and then rescinded by the Court of Appeal shortly after that. The Bush campaign and Missouri Republicans were furious that the polls have been kept open, and they viewed it as an attempt to oust Missouri Senator John Ashcroft who was running for reelection. Ashcroft was running against Mel Carnahan, who died in a plane crash three weeks earlier, and Carnahan's wife ran against Ashcroft instead, and Ashcroft lost. So Missouri Republicans said, “Wait, John Ashcroft's lost to a dead man? How can this be? There must be rampant voter fraud. It must be related to the polls being kept open.”

There was a lot of talk about voter fraud among the St. Louis Republicans, and what happened was two months after the election Ashcroft was nominated to be Bush's attorney general, and he did a radical restructuring of the Civil Rights Division, which had enforced the VRA since its passage. People who were very hostile to the VRA were suddenly put in very high positions in the Civil Rights Division in the Bush Justice Department, and they made a systematic effort to try and gut the act.

Could you talk about that effort in terms of how that played out? Like one or two examples that would be easy for people to understand more concretely?

I think the most prominent example was Georgia's voter ID law.

Georgia was one of those states that had to approve its voting changes with the federal government, based on the history of voter discrimination dating back to the '60s and '70s, and obviously well before that. So Georgia had to submit its voter ID law, which was one of the first of its kind, for federal approval. And there was clear data that African-Americans were more likely than whites to not have a government-issued ID, and there was also internal review done by the Justice Department where four of five lawyers objected to the law being approved. But what happened was the political appointees in the Justice Department who served under John Ashcroft pushed very hard for the voter-ID law to be approved, and it was subsequently approved, even though there was all this clear evidence—both internally and based on the data—that it should of been blocked.

That really set a chilling precedent for voting rights, because here you have the federal government, which had this special authority clearing a law that was discriminatory, and that was going to lead to more laws in the future. So it set a precedent for more the laws to be passed, and I think it represented the politicization and corruption of this process. The civil rights division had always been viewed as an honest broker when it came to enforcing the Voting Rights Act; and now instead, its reputation was that it had become an instrument, a partisan instrument for the Republicans.

In the book you talk about Lani Guinier. She had, I think, one of the most insightful analyses of the voting rights struggle in terms of the three different levels on which that struggle plays out. Could you go that a little bit and the light it throws onto the nature of the struggle involved with the voting rights act overall? 

Lani had been a civil rights lawyer for many years, and she was nominated to be Assistant Attorney General for Civil Rights by Bill Clinton in 1993, and Lani after she was civil rights lawyer became a professor at Penn, and she started writing a lot of articles that dealt with that next phase of the voting rights.

Basically she argued that the first phase of the Voting Rights Act knocked down the barrier that had prevented African-American and others groups from being able to register to vote. The second phase of the voting rights struggle had knocked down the discriminatory electoral systems that prevented African-American and other minority groups from actually being able to win elected office, and that was the major fight in the '70s and '80s and '90s. And then, Guinier said, there needs to be a new phase, and the new phase has to be giving people a fair share of political power.

It's not enough to have someone elected, you actually have to create mechanisms so that they can actually have real power once they're elected. For example, say you have a five person counsel and you elected two African-Americans. Well, if the white majority always voted 3-2 against the African-American members, the African-American members didn't have a lot of power. So that's what Lani was trying to get at. Instead of the Congress engaging with her ideas, she was demonized by the right as a "quota queen." So there was not a serious discussion of the remedies that she was proposing, because people were so concerned that she was going to mandate affirmative action in the electoral sphere. That was really a low point, I think for Congress in the broader public engagement with voting right and the VRA.

Turning to John Roberts: He was involved in fighting the VRA in 1982, but when he was confirmed for Chief Justice he pretended to accept it. How do his words and deeds compare?

Roberts was a very important foot soldier, in the Reagan Justice Department, in fighting the 1982 re-authorization of the VRA. There was a culture at that time of hostility towards the VRA and civil rights laws more broadly, and Roberts was at the forefront of that as a very influential special assistant to the Attorney General in the early 1980s. He'd also clerked before that for Justice William Rehnquist, who was, I think, the foremost opponent at the time on the Supreme Court of civil rights laws, and the Voting Rights Act in particular. So, Roberts had a history here.

When he was nominated as a Supreme Court justice, basically what Roberts told the Congress was that he had no agenda, that he believed the vote was preservative of all other rights, and that he didn't have a problem with constitutionality of the VRA in 1982, which he fought, and that if the law came up again, he would address it with an open mind. And I think it became very clear when the Voting Rights Act came before the court, first in the 2009 challenge, and then in the 2013 challenge, that Roberts definitely had an agenda. That he was still very hostile to this voting rights law, and he was going to do anything he could find to find a way to gut it.

I think he is someone who is extremely ideological when it comes to the voting rights act and civil rights laws more broadly. I think he wants to overturn the civil rights laws of the 1960s as much as we can. I think that is [one of his] foremost agendas on the court. So I think he was very dishonest in his testimony to the Congress on this.

One of the major talking points to emerge out of the election in Florida in 2000 was that military service members were being disenfranchised, and it was something Republicans put a lot of energy into publicize and railing against but you provide several striking example of veterans and active-duty military being denied the right to vote. How common is this and what are we to make of that?

I think what we're seeing is that new restrictions are affecting everyone, I think their intended effect is at the core of Obama's coalition, and I think in particular younger voters, minority voters, women voters. What we're also seeing is that it's hitting some of the GOP's coalition—elderly voters, military voters.

Military voters move around a lot, so when voting laws change, they can be caught in the crosshairs. For example in North Carolina, you have people who move from where they're stationed at a base, to where they live afterwards; they go to the polls to update their registration, like they could have done previously, and now they can't update the registration anymore, and they can't vote. So we've seen this story repeatedly in North Carolina, where military veterans were disenfranchised by the process.

I think people should realize from these stories that these laws are more widespread than you think, they really can affect everybody, and it's not just a small percentage of the voters that are potentially affected by these changes.

History books, even of books of the contemporaneous, usually have a strong sense of closure, but your book most definitely does not. Why is that and what does it tell us?

Well, I wish that it had a sense of closure, but unfortunately the period that I'm writing about, at the end, remains very unsettled. So I tried to do two things with the book: I tried to write about the documented history as much as possible, in the decades after the VRA, while saying at the end that there's a big fight about voting rights happening now, and we don't know how it's going to play out.

For now we have to accept this uncertainty, and I realize that's an unsatisfying ending. But that's the only ending there could have been.


By Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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2000 Election Civil Rights History Voter Id Voting Rights