With democracy hanging in the balance in 2020, the Supreme Court is clearly playing a decisive and destructive role. Unfortunately, we’ve been here before.
A little over a generation after the Civil War, Mississippi state legislator James K. “Big Chief” Vardaman (1861-1930) beamed with joy. He boasted that his state’s 1890 Jim Crow constitution had been designed solely to eliminate Blacks from politics. The scheme worked. Before the new constitution took effect, more than 190,000 Black people were registered to vote in Mississippi; within two years, only 8,600 remained on the rolls, and most of them would soon vanish as well. Vardaman was equally proud that in the face of this damning evidence of racial purging, the Supreme Court, in a unanimous decision in Williams v. Mississippi (1898), argued that the state’s formidable barriers to the ballot box, such as the poll tax and the literacy test, did not violate the 15th Amendment, which laid out that the right to vote “shall not be denied or abridged … on account of race, color, or previous condition of servitude.”
The justices argued that because the poll tax and literacy test applied to everyone, not just Blacks, the fact that 90 percent of Black voters disappeared from the electorate had nothing to do with “race, color, or previous condition of servitude.” That was the trick that had brought such joy to Vardaman. The Potemkin village of race-neutral law had been painstakingly built to choose voting requirements based on Black Americans’ slavery-induced lack of access to wealth (the poll tax) and education (the literacy test). By making the legacies of slavery the determinants of voting rights rather than specifying blackness in particular, the Mississippi Plan of 1890 danced around the Constitution while trampling all over it.
And this is what the Court had blessed.
As the Mississippi Plan spread throughout the old Confederacy, the result was devastating to American democracy. While more than 130,000 Black Americans were registered to vote in Louisiana in 1896, less than a decade later that number had nosedived to only 1,342. Similarly, Alabama went from 180,000 registered Black voters to fewer than 3,000. The same attrition was happening in Texas, Georgia, South Carolina, Virginia, and North Carolina.
The shredding of American citizens’ right to vote continued unabated for decades. Thus, by the time the United States prepared to go to war against the Nazis, only 3 percent of age-eligible Blacks were registered to vote in the South. During the presidency of John F. Kennedy, there were counties in Alabama, Georgia, and Mississippi that had zero to nearly zero percentage of Blacks on the voter rolls. As the electorate shrank and became more gnarled and disfigured, the remaining voters, sometimes with a turnout rate below 5 percent, selected the policy makers who ruled not only at the local and state levels but also dominated Congress and the shaping of federal law.