As America buried a last surviving hero of the civil rights movement, one message threaded its way through history last week: that every single person who participated in Black Lives Matter protests must channel that energy into voting. It’s the only way to realize the dream of Martin Luther King, Jr., and honor the sacrifice of civil rights leaders like Rep. John Lewis.
American democracy today is in a precarious posture — one we haven’t seen since the 1960s. Widespread protests calling for racial justice have triggered violent government crackdowns, while the right to vote — and the prospect of a free and fair election this fall — hangs by a thread. The raging COVID-19 pandemic makes it dangerous for people to go to the physical polls. Yet despite over 150,000 Americans deaths so far, President Donald Trump is signaling that if he loses to Joe Biden, he’ll irresponsibly contest mail-in votes as fraudulent.
According to a Washington-Post-Schar School poll, 3 out of 4 Americans supported the BLM demonstrations following the murder of George Floyd by Minneapolis police. Yet at least 92 million eligible voters did not participate in the 2016 presidential election, and registration numbers have plummeted this year due to the coronavirus.
There’s vital work to be done, and the way to address racial injustice and clean up government is at the ballot box. Nothing is more important to American democracy — and humanity itself — in this moment of political, moral and economic collapse.
For 55 years, the Voting Rights Act (VRA) has operated to prohibit certain racially discriminatory election practices. Before its enactment on Aug. 6, 1965, few Blacks could vote, making the promise of democracy as hollow as was the promise of liberty in the Declaration of Independence for those enslaved in 1776.
The 15th Amendment to the Constitution, adopted in 1870 to address this issue, accomplished little due to a lack of enforcement. In that year, North Carolina Gov. Charles B. Aycock boasted, “I am proud of my state…because there we have solved the Negro problem… We have taken him out of politics and have thereby secured good government under any party.”
In a democracy, how did politicians manage to take as much as 40 percent of state populations out of the electoral process? By perversion of the democratic process through such racially discriminatory devices as grandfather clauses, poll taxes and literacy tests.
When these devices failed, threats, physical intimidation and violence — including murder — were used to keep Black people from voting.
In the last century, hundreds of Blacks were killed when they tried to vote. Maceo Snipes, the only black man to vote in the Democratic primary in Taylor County, Ga., in 1946, was shot and lynched soon thereafter. Harry Moore, who organized a voter registration drive in Florida in 1950, was killed by a bomb under his home on Christmas Eve in 1951.
In 2013, the Supreme Court in Shelby County v. Holder invalidated the pre-clearance formula in the VRA, which required states with a history of race discrimination in voting to secure federal approval before changing dubious election practices. While the discriminatory methods today are not the lynch mobs that stopped Blacks from voting during the Jim Crow period, voter suppression and dilution methods continue robustly post-Shelby County.
Congress in December responded to the Supreme Court’s call for updates to the VRA in the wake of Shelby County. But despite its passage by the House of Representatives, the Voting Rights Advancement Act of 2019 has languished in the Senate. Meanwhile, the Supreme Court has repeatedly blocked measures to ease voting during the COVID-19 pandemic, prompting Justice Sonia Sotomayor to complain in one dissent that the court has embraced “a trend of condoning disfranchisement.”
To be sure, protests bring needed attention to issues of racial justice. But the way to move forward is through legislative change, which requires changes in leadership, which requires voting. And this fall, Americans must vote in massive numbers to lend legitimacy to the electoral process itself, and see it through so every ballot is counted, including after Election Day.
Consider Rep. Lewis’s final words, published posthumously at his request, expressing “hope about the next chapter of the great American story when you used your power to make a difference in our society.” Critically, he added, “Voting and participating in the democratic process are key. The vote is the most powerful nonviolent change agent you have in a democratic society. You must use it because it is not guaranteed. You can lose it.”
Michael Higginbotham and Kimberly Wehle are professors of law at the University of Baltimore School of Law. Mike is the author of “Ghosts of Jim Crow: Ending Racism In Post-Racial America.” Follow him on Twitter @professorhigg. Kim’s latest book is “What You Need to Know About Voting—and Why.” Follow her on Twitter @kimwehle.