How ‘Jim Crow 2.0’ is shaping this presidential election

On the first and third Monday of each month, Theresa Burroughs traveled to Alabama’s Hale County courthouse to register to vote. On each trip, she was met by a group of White men playing dominoes.

One of those men oversaw voter registration in the county. He’d point to a jar of jelly beans on a nearby table and ask Burroughs, “How many black jelly beans are in a jar? How many red ones in there?”

It was the late 1940s, and Burroughs was a Black woman who knew she wasn’t welcome at a voting booth in the Jim Crow South. But she was so determined to vote that she kept going to the courthouse every month for two years until she wore the voter registrar down. When he finally handed her a voter registration card, he didn’t bother to hide his disgust.

“It was a joy,” Burroughs said, recounting her first vote during a 2015 interview with a nonprofit group that collects oral histories. “But the thing about it is, I didn’t feel it should have been this hard. I knew it shouldn’t have been this hard.”

More than 70 years later, it still is hard for many Black people to vote in America — and the proof can be seen in how this year’s presidential election has unfolded, voting rights advocates and historians say.

The jelly beans test never quite went away; it’s just evolved into more sophisticated ploys. They include allegedly sabotaging the US Postal Service to delay the delivery of mail-in ballots, limiting sprawling counties in Texas to one ballot drop-box location, and passing stricter voter ID laws to combat allegations of widespread voter fraud, even though those claims have been debunked in court and by academic studies.

Voting-rights advocates say those are just some of the tactics that President Donald Trump, Republican politicians and Republican-appointed judges are employing to prevent Black people — and other groups who traditionally align with the Democratic Party — from voting in 2020.

Some of these voter-suppression tactics are so similar to the segregated era of Burroughs’ youth that some observers are calling them “Jim Crow 2.0. When it comes to roadblocks to voting, there are at least four unsettling parallels between the Jim Crow era and now.

Laws that prohibit ex-felons from voting

Back then, many segregationists didn’t bother with clever tricks to keep Blacks away from the voting booth. Raw terror was their preferred method. They routinely employed beatings, mob violence, and murder to keep Black voters from the polls.

White politicians began attacking Black voting power after the 15th Amendment granted Black men the right to vote in 1870. They transformed the post-slavery-era South into an apartheid state where Blacks were reduced to another form of servitude, the Rev. Martin Luther King Jr. once observed.

“So long as I do not firmly and irrevocably possess the right to vote, I do not possess myself,” King said in a 1957 speech. “I cannot make up my mind — it is made up for me. I cannot live as a democratic citizen, observing the laws I have helped to enact — I can only submit to the edict of others.”

Southern officials also developed more subtle ploys — like using the courts — to keep Blacks from voting.

For one, they passed laws that permanently stripped voting rights from former prisoners — at the same time that some Southern states did as much as they could to steer Black men to prison.

These states passed a slew of laws that made it easier for authorities to arrest Black residents for minor offenses such as loitering and vagrancy. It was a forerunner of mass incarceration — the mass criminalization of Blackness that, among other things, reduced Black political power.

And laws aimed at felons are still keeping Black people away from polling stations today, according to a recent report.

An estimated 5.1 million people in the US won’t be able to vote in the 2020 election due to a felony conviction, according to a new study from the Sentencing Project, a non-profit group that uses research to push for alternatives to mass incarceration.

Felon disenfranchisement laws are “race-neutral” on their face, but in the United States race is clearly tied to criminal punishment because imprisonment rates of African Americans have consistently exceeded those of Whites, said the authors of another 2003 study, in the American Journal of Sociology.

African Americans represent a disproportionate percentage of felons and are hit harder by such laws — especially in Southern states. About 1 in 16 African American adults can’t vote because of a felony record, according to the Sentencing Project report. That rate is almost 4 times greater than that of non-African Americans.

Laws forcing people to pay to vote

Another common weapon in the Jim Crow voter-suppression toolkit was the “poll tax.” Southern states passed laws requiring the payment of a fee to vote. Many Blacks, not long removed from slavery, were too poor to afford the fee. They couldn’t exercise a fundamental right simply because they didn’t have enough money.

Some critics say Republican lawmakers have created a modern-day poll tax in Florida by passing a “pay to play” approach to voting for ex-felons.

In 2018, Florida voters approved Amendment 4, which granted convicted felons who complete all terms of their sentence, including parole or probation, the right to vote — except those convicted of murder or a felony sexual offense.

The Republican controlled-Florida legislature, however, passed a law the following year that required ex-felons to pay all financial obligations before they could vote. Critics say this places an unfair burden because the state of Florida has no reliable way to tell ex-felons how much they owe. Many of the records used to sentence prisoners are lost or are inaccessible, critics say.

The Sentencing Project estimates “that nearly 900,000 Floridians who have completed their sentences remain disenfranchised,” despite the passage of Amendment 4. Voting rights advocates were encouraged when a federal judge ruled that the state’s “pay-to-vote system” was unconstitutional. But a federal appellate court upheld the law.

The dissenting judges in that decision drew their own parallel to the Jim Crow era. They described the elaborate accounting process that ex-felons had to navigate to vote as having “all the certainty of counting jellybeans in a jar.”

Purging voters from rolls

Sometimes White officials in the Jim Crow South didn’t bother with subtlety. They simply wiped Blacks from voting rolls.

People would arrive at the polls to discover they were no longer registered to vote and could not re-register until after the election.

Southern states also rewrote voter-registration guidelines in the late 19th century to make it more difficult for Blacks to register to vote through barriers such as “good character tests” or property qualifications.

A property qualification was a thinly disguised way to keep Blacks from voting since many back then were too poor to afford property, while a “good character test” usually meant that a White voting registrar had the sole authority to decide who had the right “moral character” to vote (Blacks rarely had the right moral character).

Their ploys worked, with swift and devastating results. In Louisiana, for example, there were 130,344 Black registered voters in 1896. Four years later there were only 5,320.

The purging of rolls continues today, voting-rights advocates say.

The state of Ohio, whose top election official is a Republican, faced a legal challenge for purging thousands of voters from its voting rolls beginning in 2015. An Ohio law allowed state officials to remove people from voter registration rolls if they didn’t vote in several elections and failed to return a prepaid address confirmation form.

Critics said the law amounted to a “use it or lose it” approach to voting. The Ohio case went to the US Supreme Court in 2018 and was upheld. That ruling, though, hasn’t stopped criticisms of Ohio’s voter purges.

In 2019 an investigator discovered that the state of Ohio had mistakenly placed about 40,000 people on a voter purge list. One of them included the executive director of the League of Women Voters of Ohio, who was mistakenly flagged by the state as being an inactive voter.

Georgia has also been heavily criticized for its voting purges. The state, which has a large Black population, is considered a swing state in this presidential election.

In 2017, a year before what would be a highly contested gubernatorial election, Georgia passed a law that said voters’ names on registration records must “perfectly match” their names on approved forms of identification. About 80% of Georgia voters whose registrations were blocked by this law were people of color.

What happened in Georgia and Ohio is part of a trend: Republican-controlled states, particularly those in the South, are purging voters at an elevated rate, according to a study by the Brennan Center, a think tank and advocacy group for voting rights. Voting rights advocates say these purges are designed to make it more difficult for people of color and Democrats to vote.

What unites all these voter suppression tactics from today and yesterday is how White lawmakers talked about them, says Russell Brooker, a political scientist at Alverno College in Wisconsin.

“They didn’t mention race, just like today they don’t mention race,” Brooker says. “Nobody says today, ‘Let’s screw up the post office to prevent Blacks from voting.'”

A Supreme Court that has hampered voting rights

None of the voting suppression tactics of the Jim Crow era would have been possible without the cooperation of the US Supreme Court. Any student of history reading about the high court’s decisions in the 19th century would be struck by its hostility toward Black voting rights.

Lawrence Goldstone, author of “On Account of Race: The Supreme Court, White Supremacy, and the Ravaging of African American Voting Rights,” said the court in the 19th and early 20th century “contented themselves with taking refuge in parsing language” while producing decisions that ignored what almost everyone could see: Blacks were being defrauded, beaten and murdered while trying to vote.

“What they were doing was hiding behind language to avoid the intent of the Constitution, which is to grant equal justice,” Goldstone told CNN.

Republican-appointed judges are engaging in a similar “see no evil, hear no evil” approach today, voting rights advocates say.

A conservative majority on the Supreme Court issued a 2013 decision in Shelby County v. Holder that gutted the chief enforcement mechanism of the most important law passed during the civil rights movement — the 1965 Voting Rights Act.

Chief Justice John Roberts said in the decision that the Jim Crow voter-suppression tactics which made the Voting Rights Act necessary did not exist any longer. The high court ruled that states with a history of voter racial discrimination no longer had to “preclear” any voting changes through the federal government.

“Our country has changed,” Roberts wrote. “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

Brooker, the political scientist, says Roberts’ Shelby decision was a textbook example of the high court refusing to see what was in front of them — states passing voter ID laws designed to dilute the Black vote.

“It just seems to be a willful ignorance of everything,” he says. “The same day of the Shelby decision, Texas changed to voter ID. It didn’t even wait until the sun went down.”

Since the Shelby decision, several Republican officials have acknowledged that voter ID laws suppress Democratic voters. (Blacks are overwhelmingly Democratic voters.) Even President Trump recently said that if voting was made easier, it would hurt the Republican Party.

None of this has made an apparent impact on Roberts or the other conservatives on the Supreme Court, voting rights advocates say.

They say the conservative bloc on the high court has consistently sided with Republican officials who have made voting more difficult. They have refused to stop gerrymandering that allows Republicans to retain control of states even when they don’t receive as many votes as Democrats and have declined to ease voting requirements to protect Americans during the coronavirus pandemic.

And Republican-appointed judges in lower courts have followed their example, one recent study concluded. It found that these judges impeded ballot access 79% of the time in their decisions, versus 37 % for Democratic-appointed judges.

The future will likely bring more voter-suppression scams

There are some who say the struggle for voting rights is ultimately a battle to preserve democracy.

Commentator Ezra Klein wrote in a recent essay that the Republican Party has concluded that “mass democracy is inimical to their interests” because their ideas no longer command popular support.

Their solution, he wrote: Appoint judges that will make voting harder for groups that don’t traditionally support Republicans.

“A party that wins power even as it fails to win over voters will quickly turn against democracy itself,” Klein says. “And when that happens, it will use the power it has to make it yet easier to win power without winning voters. And so the Republican Party is.”

Brooker, the political scientist, says the future of voting rights may be in the past. As the country becomes more racially diverse, conservative White lawmakers and judges will come up with clever new ways to discourage Black people from voting, he says.

“I don’t know what the next one is,” Brooker says of voter-suppression tactics. “But there’s always another scam down the road.”

They may no longer use jars of jelly beans, but the game remains the same.

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