Our news - 6/27/2021
Authors’ note: CAP uses “Black” and “African American” interchangeably throughout many of our products. We chose to capitalize “Black” in order to reflect that we are discussing a group of people and to be consistent with the capitalization of “African American.”
Introduction and summary
The United States is a contradiction. Its founding principles embrace the ideals of freedom and equality, but it is a nation built on the systematic exclusion and suppression of communities of color. From the start, so many of this country’s laws and public policies, which should serve as the scaffolding that guides progress, were instead designed explicitly to prevent people of color from fully participating. Moreover, these legal constructs are not some relic of antebellum or Jim Crow past but rather remain part of the fabric of American policymaking.
Over the centuries, even as the nation struggled to prohibit the most repugnant forms of exclusion and suppression, it neglected to uproot entrenched structural racism. The inevitable result is an American democracy that is distorted in ways that concentrate power and influence. For example, according to a new Center for American Progress analysis, in 2016, 9.5 million American adults—most of whom were people of color—lacked full voting rights.1
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The inability to fully participate in the democratic process translates into a lack of political power—the power to elect candidates with shared values and the power to enact public policy priorities. As a result, people of color, especially Black people, continue to endure exclusion and discrimination in the electoral process, more than 150 years after the abolition of slavery.
This report examines how lawmakers continue to protect discriminatory policies and enact new flawed ones that preserve barriers to voting for people of color. Promoting full participation, therefore, will require intentional public policy efforts to dismantle long-standing barriers and protect the right to vote for all Americans.
Voting and citizenship were largely denied to people of color until 1870
The very first law codifying naturalization in the United States restricted national citizenship to “free white [people] … of good character.”2 While free Black men were at times permitted to vote in some states, enslaved Black people, who constituted more than 85 percent of the nation’s Black population between 1790 and 1860, were unable to vote anywhere in the United States.3 Even in states such as Pennsylvania, where Quakers preached racial tolerance, free African Americans who were legally permitted to vote rarely exercised this right for fear of retribution.4 In 1857, the infamous U.S. Supreme Court decision in Dred Scott v. Sandford ruled that no Black person could become a citizen of the United States and thus had no protections to exercise their right to vote.5 By 1865, virtually all white men were permitted to vote in presidential elections, whereas Black men were permitted to vote in just six states.6
In the wake of the Civil War, the United States ratified the 14th and 15th amendments—granting citizenship to all people born or naturalized in the country and prohibiting disenfranchisement based on race, color, or previous condition of servitude.7 The nation also adopted three bills called the Enforcement Acts between 1870 and 1871 that criminalized voter suppression and provided federal oversight in elections.8 These laws broke the back of the first iteration of the Ku Klux Klan and led to hundreds of arrests, indictments, and convictions for those who sought to interfere with Black citizens’ right to vote.9 By 1877—the end of the 12-year period known as Reconstruction—at least 1,510 Black Americans had held elected office on every level of government, from clerks and school superintendents to congressional representatives and U.S. senators.10
The unfulfilled promise of Reconstruction
The end of the Civil War marked an inflection point in U.S. history. The destruction of slavery as a legal institution and the passage of the 14th and 15th amendments promised to usher in a new age of American freedom and democracy. With the support of the U.S. Army and the Freedmen’s Bureau, millions of newly freed African Americans gained access to property ownership, education, and political participation for the first time. The federal government and thousands of volunteers reconstructed the Southern economy, building schools, banks, and hospitals for liberated Black families, and helped protect these families from white nationalist terrorism.11 For a time, federal officials even helped implement Special Field Order No. 15, which mandated the redistribution of roughly 400,000 acres of land confiscated from Confederate planters to newly freed Black families in 40-acre segments.
But lawmakers’ commitment to protecting the constitutional and human rights of Black citizens did not last. Widespread support for Reconstruction faded by the 1870s, and the election of President Rutherford B. Hayes signaled the impending end of the era. The death of Reconstruction fueled resurgence of white nationalist violence, occupational segregation, and racial discrimination designed to trap Black Americans in a semipermanent status of second-class citizenship. The cornerstone of these efforts was the systematic disenfranchisement and suppression of Black voters.
Lawmakers continued to exclude and suppress Americans of color even after the 14th and 15th amendments
Reconstruction offered people of color a glimpse at what American democracy could be. But the visionary moment soon passed and was replaced by nearly a century of brutal suppression and disenfranchisement. Even as the nation became more diverse, and increased attention was given to expanding voting rights, the systematic exclusion of people of color from electoral participation helped ensure that the nation’s democratic institutions and policies would remain racially homogenous.
After Reconstruction, white nationalists waged a campaign of terror to suppress Black voters and seize control of Southern state legislatures
In 1877, the withdrawal of the last U.S. troops from former Confederate states marked the death of Reconstruction and the birth of the Jim Crow era.12 In subsequent decades, Southern states would adopt numerous measures to codify the exclusion and suppression of Black people. Many states simultaneously criminalized low-income Black residents by making vagrancy illegal and prohibited people with convictions from voting.13 While the 13th Amendment prohibited slavery, it also provided an exception for crime. The exception permitted convict leasing, a system that allowed Southern states to lease prisoners for free labor. This set the stage for many states to pass laws, known as “Black Codes,” which only applied to Black people. Once they were convicted under these laws, Black people were leased out to do various jobs.14
During this time period, states also adopted poll taxes and English literacy tests for voting, which required Americans to pay a fee and answer a sometimes endless series of challenging and confusing civics and citizenship questions in order to vote.15 White residents—even those who were low income and illiterate—were conveniently exempted from literacy tests thanks to “grandfather clauses,” which allowed anyone who was eligible to vote prior to the 15th Amendment, along with their descendants, to vote in elections.16 These and other Jim Crow laws made it virtually impossible for otherwise eligible Black citizens to participate in Southern elections.17
The systematic exclusion and suppression of voters of color during this period was not limited to Southern states
In the West, U.S. states routinely adopted measures to undermine democratic participation among communities of color. Oregon, for instance, entered the Union prior to the Civil War with a constitution that explicitly disenfranchised Black and Chinese people.18 After the war, the state’s lawmakers rejected the 15th Amendment and went on to deny suffrage to most people of color until the mid-20th century.19 In fact, Oregon did not ratify the 15th Amendment until 1959—almost 90 years after federal certification.20
On the federal level, the progress made during Reconstruction was followed by decades of policy decisions that limited or completely restricted suffrage for people of color. For example, the Chinese Exclusion Act explicitly prohibited Chinese immigrants from becoming American citizens.21 During this period, the United States also acquired multiple overseas territories, such as Puerto Rico and Guam, but denied full suffrage to the territories’ predominantly nonwhite residents.22 While the Chinese Exclusion Act would ultimately be repealed in 1943, 3.4 million otherwise eligible Americans living in U.S. territories—namely Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and American Samoa—continue to lack full voting rights to this day.23
The civil rights movement dismantled many obstacles to electoral participation
In 1954, Black activists launched the American civil rights movement to ensure that all Americans, regardless of race, could exercise the rights and protections guaranteed to them in the U.S. Constitution.24 Movement leaders and participants risked life and limb in a decades-long struggle against discrimination, segregation, and voter suppression.25 Through nonviolent protest, civil disobedience, litigation, education, and determination, they succeeded in dismantling many of the institutions that had oppressed people of color since the end of Reconstruction.26 Among the many landmark legislative victories of the civil rights movement, the Voting Rights Act of 1965 (VRA) and its subsequent amendments ushered in a new era of democratic participation.
The VRA provided the federal government and civil rights leaders with the authority and the tools needed to break the grip of Jim Crow and ensure that all Americans could exercise the fundamental right to vote. Among other things, the VRA prohibited any practice or procedure that denied or limited a citizen’s right to vote because of their race, color, or membership to a language minority group.27 One of the most critical provision was Section 5, which prevented jurisdictions with an established history of discriminatory anti-minority election practices from enacting unfair voting policies.28 Under Section 5, these jurisdictions were required to seek permission from the U.S. Department of Justice or a federal court before making any changes to election processes or their voting procedures.29
The VRA expanded access to the ballot box for hundreds of thousands of voters of color. From 1965 through 1988 alone, the number of Black citizens registered to vote in places such as Alabama, Georgia, and Louisiana more than doubled.30 (Figure 1) Mississippi experienced a more than tenfold increase in Black voter registration during this period.31 Increased access to voting translated into more Black legislators across all levels of government. In just one decade—1970 to 1980—the total number of Black elected officials in the United States tripled, from just 1,469 to 4,912.32