The question of who has a claim to citizenship and political participation has long defined the life of republics. In ancient Athens, women, slaves, foreigners and anyone under 18 found themselves excluded from the democratic process: although there were roughly 260,000 people living in Athens in 4 BCE, only around 40,000 of them made up the active citizenry.
The question “who counts?” still haunts the US republic, and is one upon which its future may rest. Across the country, states are passing laws that will make it more difficult for people of colour, specifically black people, to vote in federal, state and local elections. According to a March poll by the Brennan Centre for Justice, lawmakers in 47 out of 50 states have introduced more than 300 bills to restrict access to voting this year alone. In the state of Georgia, which the Democrats narrowly won in the 2020 presidential election, a new 98-page voting law, passed by the state’s Republican legislators, makes it a crime to offer water to people waiting to vote; voting lines tend to be longer in more populated urban areas. The law also makes absentee voting more difficult. Nearly one in four bills introduced nationwide seeks to introduce tighter voter ID requirements.
To understand the origins of the Republican campaign to restrict voting rights, what President Joe Biden has described as “an assault on liberty”, you must look to American history.
After the Civil War, the US added the 13th, 14th, and 15th amendments to the constitution. These amendments abolished slavery, made everyone who was born or naturalised in the US a citizen, and gave every person, regardless of race, the right to vote.
From the 1860s until the 1960s, in an effort to disenfranchise and undo the economic gains black people had made during the Restoration period, white Americans found other ways to restrict the right to vote. These were the “Jim Crow” laws, which, despite these constitutional amendments, codified racial segregation, particularly in the American south.
According to Carol Anderson, the chair of African American studies at Emory University in Atlanta, Georgia, there are certain similarities between the Jim Crow laws and the GOP-sponsored laws today. There is, she said, the use of “race-neutral” language, which means that the laws do not overtly state their intention to curtail the rights of African Americans, or that they will disproportionately affect to one group. But by design, both Jim Crow and these new voting laws do disproportionately impact non-white people, particularly black voters.
Anderson described “the acquiescence of the US Supreme Court” in ensuring the establishment of laws attacking voting rights. One example is the 1890 Mississippi constitution, which imposed limits on the right to vote on issues such as poll taxes or literacy tests. In 1898 the Supreme Court decided that this did not violate the 15th amendment – the right of citizens to vote without discrimination – because it wasn’t the case that only black voters had to pay the poll tax or pass the literary test. The law was written to apply to everyone, even if, in reality, it disproportionately impacted one group in the population. This is similar to a Supreme Court decision in April this year, when the court upheld Arizona voting laws that Democrats, activists and political experts had argued disproportionately impacted minority voters.
Supreme Court Justice Samuel Alito wrote: “The mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or does not give everyone an equal opportunity to vote.” (The Supreme Court had already gutted much of the 1965 Voting Rights Act in 2013; the majority argued that the legilslation, which made certain states seek federal clearance before implementing voting laws, was no longer relevant.)
Like Jim Crow, these laws, which in Florida, for example, also include stricter requirements on submitting mail-in ballots and further restrictions on ballot drop box use, are meant to delegitimise non-white votes. They are about who has the right to participate in American democracy and who is exiled from the demos. It is no coincidence that these state laws are being introduced after the 2020 presidential election, which former President Donald Trump claims was stolen. Trump’s unproven allegations of voter fraud have focused on states and cities that have large African American populations, such as Atlanta, Detroit and Philadelphia. When Trump supporters stormed the US Capitol on 6 January, they sought to overturn the election. (This, too, has precedent in American history. In 1873 a black American militia, fearing some of their white neighbours would try to seize power after a contentious gubernatorial election in Louisiana, took control of a local courthouse. A mob of 150 white men in Colfax then killed between 60 and 150 black Americans.)
These new voting laws need to be understood not only as a continuation of America’s history of slavery, racial segregation and inequality, but also as an extension of the 2020 election. Challenging the legitimacy of the election results hasn’t worked, so the Republican Party has turned to the law, and the daily workings of state legislatures, to prevent (mostly Democratic) voters from being able to vote at all. “I think one of the things that has folks bristling at the connection: they think of Jim Crow only in terms of lynching, only in terms of the violence,” said Anderson, author of One Person, No Vote: How Voter Suppression is Destroying Our Democracy. “They don’t understand or recognise that Jim Crow dealt with a lot of laws and policies that were about infusing inequality and inequity into the operating code of the United States”.
In response to the recent events, Anderson would like to see the filibuster – a legislative procedure that allows representatives and senators to delay or prevent a vote – “blown wide open”, particularly where constitutional rights such as the right to vote are under threat.
In theory, Congress could bring in voting rights legislation to protect voters from discriminatory laws passed at the state level. But it has not done so, partly because Senate rules require 60 votes to end a filibuster – Democrats only have 50 and moderates in the party are reluctant to relinquish the filibuster. But the debate over the filibuster is not about whether or not to retain an arcane Senate procedure. It is about what kind of country we want to be. Are we going to be one that has a civic-based conception of democratic participation? Or are we going to determine voting eligibility along colour lines? Which is to say, with all due respect to the ancient Athenians, not really a democratic country at all.