Local Authority in the Future of Voting Rights

During the 1940s and 1950s, a Mississippi Circuit Clerk named Luther Cox gained notoriety for asking potential black voter registration applicants “How many bubbles are in a bar of soap?” before summarily denying their applications.¹ Cox’s question has become the stuff of movement legend and is often misattributed to other white registrars across the South. But the absurdity of such questions actually mattered very little to the mechanics of black voter suppression during the era of Jim Crow. The power of white Southern registrars like Luther Cox lie not in senseless questions about soap bubbles or jelly beans in a jar, but rather in the authority bestowed upon their local offices to prevent people from voting by whatever means they deemed appropriate.

Between 1890 and 1910, every Southern state rewrote its constitution to circumvent the Fifteenth Amendment, which guaranteed the right to vote, regardless of “race, color, or previous condition of servitude.” Mississippi led the way. In 1890, Mississippi legislators gathered to re-write their state constitution specifically to eliminate the black vote. As the president of Mississippi’s 1890 Constitutional Convention flatly observed, “We came here to exclude the negro.” What followed was a series of new voter guidelines, most notably poll taxes and literacy tests, that helped prevent most African Americans from voting.

At the time, Mississippi’s strategy to disfranchise black voters was no great secret. In 1890, numerous national media outlets observed that new policies such as literacy tests were specifically designed to target and eliminate black voters. When Mississippi legislators gathered that August, the Baltimore Sun observed, “The most important work of the convention is to find some means of either reducing or neutralizing the negro vote without coming into conflict with the federal constitution.” “That purpose,” agreed the Washington Post, “is to devise a way whereby, without fraud or violence, the minority [whites] may be enabled to govern the majority [blacks].” Despite this flagrant objective to disfranchise African Americans, Mississippi’s new voter restrictions were passed with impunity and ultimately replicated across the South. Yet, in most cases black voting was never actually deemed illegal. That would have violated the Fifteenth Amendment. Rather, the black vote was suppressed by a widespread system of local authorities who used the new voter restrictions to legally curtail black voting rights until the Voting Rights Act of 1965 provided the federal government with the authority to oversee local voting procedures.²

As voting rights expert Ari Berman has observed, recent false claims of voter fraud have helped legitimize dozens of proposals for restrictive new state voter laws. Enabled by the repeal of Section 4b of the 1965 Voting Rights Act, all states can now pass new voting laws without federal oversight. These new laws, which range from requiring specific types of identification (ID) to pledging long-term state residency, are designed to suppress particular types of voters—especially the poor, minorities, and younger citizens—who tend to vote Democrat. In recent years, some of these new laws so blatantly targeted specific groups that they were deemed unconstitutional. In North Carolina, for example, the new Republican-backed voting restrictions were struck down by a federal court because they “target African Americans with almost surgical precision.”

Voting rights advocates have documented the potential systematic disadvantages these new requirements can create for different groups, but another pitfall has gone largely unnoticed. America’s history of voter suppression suggests that new voting laws also hold the potential to create an entirely different type of threat to voting rights: improvised and/or premeditated voter suppression by local authorities.

Contemporary defenders of new voter laws employ a similar logic to those in 1890: What is the harm, one might have asked in 1890, in requiring voters to understand the basic laws of the state in which they are voting? One might similarly ask in 2017, what is the harm in requiring voters to show IDs to poll watchers or make a long-term residential commitment to the state? These types of inquiries color voting rights debates across a wide range of historical eras. But lessons from the past suggest that these types of arguments might not actually matter much at all.

The power to enforce Jim Crow-era voting laws lay in the hands of local authorities like Luther Cox. County registrars and a variety of elected or appointed local officials held the authority to determine the qualifications of each voter applicant. It was local white officials who conducted literacy tests and determined who was eligible to vote. With little oversight or standardization, registrars improvised tests and shifted requirements at their own whim. Some applicants were asked detailed questions about state constitutions. Others were simply asked to recite their home addresses. Regardless of the question or answer, registrars used their authority to discriminate against potential black voters. Some simply denied all black applicants. Others, like Luther Cox, made a mockery of the process with ridiculous, unanswerable questions such as “How many bubbles are in a bar of soap?”

Historical lessons from the Jim Crow era suggest that new voting restrictions promise to enhance the ability of local authorities to deny individual voting rights. Whereas registrars in the Jim Crow South could always rely on literacy tests to deny applicants, local authorities in the coming years could enjoy a virtual grab-bag of new voter restrictions that they can use to disqualify voters. This can even include voters who have otherwise met every requirement to vote. For example, with strict voter ID laws, local officials will have the authority to question the authenticity of an ID card or suggest that the individual depicted in the image of the ID card is a different person than the person attempting to vote. What or who is to stop them if they are granted such authority? And this merely applies to ID requirements. Virtually every new state voting law provides yet another potential justification to deny voter registration applicants or turn away people at the polls. Armed with new restrictions, local officials will have an opportunity to exercise greater authority at their own digression.

There are, of course, recourses for any qualified citizen who is denied the right to vote. But the processes of appeal would also disproportionately affect the very same demographics most vulnerable to voter suppression techniques in the first place—rural, poor, and younger citizens. If denied the vote at the polling place, these individuals would once again have to navigate additional procedural steps to protest that denial. This is, of course, in addition to whatever burden they may have already overcome by acquiring the proper form of ID, making some sort of pledge, or taking time from work or school to vote during restrictive hours that limit access to polling places and create lengthy queues. Moreover, if voting is only conducted on one day, then anyone who is turned away would be left with little assurance that their vote would eventually count and a diminished motivation to participate in subsequent elections.

Last November in Alabama, a ninety-two-year-old woman was denied the right to vote because her driver’s license had expired. She could have cast a provisional ballot that would have counted only if she could have returned within three days with a proper form of ID. It is unclear whether the woman was aware of this process of appeal, but this requirement clearly placed an excessive burden on the elderly woman by requiring her to secure a new driver’s license and return to the county election commission office within three days. In Milwaukee, where Wisconsin’s new voter ID law coincided with a roughly 41,000-voter decline between the 2012 and 2016 elections, some voters without IDs were reportedly turned away without even being offered provisional ballots, meaning they enjoyed little recourse at all.

Many black people in the Jim Crow South simply stopped trying to register because they knew local registrars would deny their applications. Others were unfamiliar with the procedures or unaware that as citizens they enjoyed a Constitutional right to vote. In any case, theirs was a fight against local authorities who wielded state-sanctioned tools to prevent certain portions of the population from voting. In addition to creating broad systematic barriers, voter suppression laws also legitimized grassroots voter suppression by individual actors.

We do not know when and where local authorities might abuse such power in future elections, but it is important to realize how individuals can work within systems to help further limit access to basic voting rights. History teaches us that there can be great injustice when local officials are provided the tools to stand between the people and the ballots, or rather between the Constitution and the democracy.

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