Att conix: For Once, the Truth of American History on Voting Rights Just Triumphed in the Courts
"America’s Anti-Democratic Movement [...] An anti-democratic movement, inspired by Donald Trump but much larger than him, is making significant progress, as my colleague Charles Homans has reported .. https://www.nytimes.com/2021/12/11/us/politics/trust-in-elections-trump-democracy.html . In the states that decide modern presidential elections, this movement has already changed some laws and ousted election officials, with the aim of overturning future results. It has justified the changes with blatantly false statements claiming that Biden did not really win the 2020 election. "
And among the defeated parties was Florida Governor Ron DeSantis.
- “Florida has repeatedly, recently, and persistently acted to deny Black Floridians access to the franchise…At some point, when the Florida Legislature passes law after law disproportionately burdening Black voters, this Court can no longer accept that the effect is incidental.” -
Walker therefore put Florida under pre-clearance requirements for the next 10 years, a power the federal courts still have under what’s left of the VRA. Walker threw out three provisions in the new Florida law that were carefully tailored to make it harder for minority citizens to organize and vote: a so-called “line warming” ban, a restriction on drop-boxes, and a warning requirement for non-partisan voter registration campaigns. And he minced no words in explaining his decision.
- Florida has a grotesque history of racial discrimination. For example, Professor Austin, whom this Court accepted as an expert on Florida elections and Black and Latino political participation, testified that Florida’s first post- Civil War constitution never took effect because it extended the franchise to White males only. And even when Congress forced Florida to extend the franchise to Black men, Florida did everything it could to prevent those citizens from voting. As Dr. Kousser—an expert in American politics, southern politics, and minority voting rights testified—during the post-Reconstruction period, Florida took incremental steps to limit the franchise.
First, Florida altered its constitution to allow the governor to appoint all statewide officeholders, ensuring White domination of the executive branch. In 1887, the Florida Legislature enacted a proto-identification requirement, under which registration certificates were required to vote. In 1888, the Legislature passed the “Eight Box Law”—which “worked as a de facto literacy test”—and a poll tax. Id. at 1699. These measures—all facially neutral—had their desired effect; “Black voting dropped from 62 percent in 1888 to 11 percent in 1892.”
Florida’s White majority also used terrorism to suppress the Black vote, as Dr. Burch, an expert in—among other things—discriminatory barriers to voting, testified. In 1920 in Ocoee, Florida, “a man was lynched and 30 to 60 people were killed and nearly all of the Black homes and churches were burned after a Black man tried to vote in an election that day.” -
This is a rare bit of legal scholarship that plants the modern Florida GOP firmly in the history of both Jim Crow and the domestic terrorism that was its primary mechanism of enforcement. You are known, Judge Walker wrote, by the historical company you keep. Walker even tossed an elbow at Chief Justice John Roberts and his Day of Jubilee on the way by.
- What is this Court to make of this history? To be sure, there are those who suggest that we live in a post-racial society. (See Shelby Cnty., 570 U.S. at 557). But that is simply not so. -
Sometimes, it’s easy to despair of this country’s ever learning anything from the truth of its history, a subject that is currently under attack in public schools all over the country. Too often, it seems like the political institutions of the country are particularly resistant to the truth. It’s entirely possible that Judge Walker’s decision will fall to that sense of institutional denial as it goes through the inevitable appeals. But, for now, it stands, and that makes this a good day.
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