On Friday evening, Jan. 3, 2018, President Trump disbanded his controversial Advisory Commission on Election Integrity. Trump launched the commission soon after he was inaugurated, alleging — without evidence — that widespread voter fraud cost him the popular vote in the 2016 election. Voting rights advocates feared that the commission would deliver new rules that would limit who could vote.
That anxiety spiked when, in June, the commission asked all 50 states to turn over personal information about their registered voters. Many states refused, and civil rights organizations sued to keep that information private. Trump says he backed down rather than “engage in endless legal battles at taxpayer expense.”
This battle had a strongly partisan cast. The commission was sharply divided on partisan lines, with one Democratic commissioner going so far as to sue the panel for allegedly excluding him and violating transparency laws. Republicans have generally supported Trump’s claims about voter fraud, while Democrats have strongly opposed the commission.
Have Republicans “always” supported voting rights — until now? Nope.
Some observers have suggested that this division is relatively new. According to this view, from 1965 to around 2008, there was strong bipartisan support for minority voting rights. But that’s not so. Republicans have a long history of trying to limit federal enforcement of minority voting rights. Trump is following in his predecessors’ footsteps.
Here’s how the story goes, according to the conventional wisdom: Both Republicans and Democrats repeatedly — in 1970, 1975, 1982 and 2006 — voted overwhelmingly to extend the Voting Rights Act (VRA) of 1965. This “five-decade bipartisan consensus” collapsed in the 2000s, however, when Republicans, anxious about growing racial and ethnic diversity that would likely favor Democrats, abandoned the VRA and embraced restrictive voting rules.
But as I argue in my recent book, this narrative focuses almost exclusively on the legislative history of the VRA, in which Republicans consistently supported the act, while ignoring administrative and judicial policies, in which they did not. And those exclusions give us a distorted picture of this history.
Republicans voted in favor of minority voting rights — but undermined them behind the scenes
But doesn’t consistent Republican support for the VRA in Congress prove that “Republicans used to unanimously support the Voting Rights Act”? In a word, no. Republicans knew that aggressive, public opposition to the VRA would look bad. So they chose less transparent strategies to limit the scope of the act. Here’s what happened.
Republican resistance to minority voting rights began in 1969, under President Richard M. Nixon. During debate over the VRA reauthorization, Nixon tried to strip Section 5 from the legislation. Section 5 was known as the “heart” of the Act; it required the Justice Department or the federal courts to review any voting changes proposed by states with histories of discrimination. If the department or the courts concluded that a change would make it harder for African Americans to vote or exercise political power, it could reject the change.
Nixon lost the battle to eliminate Section 5. But his Department of Justice set rules and procedures that didn’t enforce the VRA very strongly. For example, when dozens of Mississippi counties proposed requiring all citizens to re-register to vote, which likely would have disenfranchised eligible black voters, the DOJ approved it. Nixon’s Justice Department also allowed a Mississippi law that required candidates to receive an absolute majority of the vote to be elected to office — even though this measure made it much more difficult for African American candidates to win when the white vote was divided.
Meanwhile, Nixon appointed Supreme Court justices who took a narrow view of the VRA’s protections. Led by William H. Rehnquist, Nixon appointees chipped away at the act’s constitutional and statutory foundations. For example, in a 5-3 decision in City of Richmond v. United States (1975) — supported by three of Nixon’s four appointees — the court gave cities and towns the right to legally annex territory in ways that might make it harder for black voters to elect candidates.
More important, Nixon’s appointees provided four of five votes for the majority ruling in Beer v. United States (1976), which effectively required the DOJ to adopt a more lenient standard in reviewing voting changes — leading to a 50 percent decline in Section 5 objections and requests for more information between 1976 and 1981, and fewer Section 5 objections well into the 1990s.
Ronald Reagan continued this strategy. While Reagan accepted the 1982 VRA reauthorization, Reagan’s voting rights czar, William Bradford Reynolds, used his authority aggressively to monitor the activities of career Justice Department employees and reverse decisions that conflicted with the administration’s priorities. Under his leadership, between 1981 and 1988, Section 5 objections fell to a new low. Federal courts overturned a number of post-1980-census submissions pre-cleared under Reagan — including North Carolina’s legislative reapportionment; the council apportionment for Montgomery, Ala.; and Louisiana’s congressional reapportionment – for diluting minority voting strength.
Like Nixon, Reagan appointed justices more conservative than their predecessors on voting rights issues, including Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy, and put Rehnquist in the chief justice’s chair. Once joined by George H.W. Bush’s appointee Clarence Thomas, between the early 1990s and mid-2000s these justices narrowed the VRA’s scope. For instance, in a series of decisions in the 1990s — Shaw v. Reno (1993), Miller v. Johnson (1995), Shaw v. Hunt (1996) and Bush v. Vera (1996) — the court’s conservative majority sharply limited the conditions under which states and localities could create districts where non-white voters comprised a majority.
From George W. Bush to Donald Trump
Under George W. Bush, congressional Republicans did vote to reauthorize the VRA in 2006, but only grudgingly; as TMC editor Sarah Binder has detailed, many Republicans (including the president) actually wanted amendments that would have substantially weakened the act.
Meanwhile, the Bush administration continued narrowing federal enforcement. Bradley Schlozman, who was in charge of enforcing the VRA under Bush, violated federal civil service rules by basing decisions about the hiring, transfer and promotion of career voting rights attorneys on their ideological views. Important voting rights cases were assigned to administration loyalists, while liberal attorneys were reassigned to cases outside their expertise. The considered views of career attorneys were banned in important voting rights cases. Under Bush, the DOJ saw still more declines in Section 5 enforcement and fewer new voting rights lawsuits.
Bush’s court appointees were even more conservative on voting rights than the justices they replaced. According to data from the Supreme Court Database, John G. Roberts Jr. (as chief justice) and Samuel Alito (as associate justice) voted less often in support of voting rights plaintiffs than Rehnquist and Sandra Day O’Connor, respectively. And in 2013, in Shelby County v. Holder, the Roberts court declared that since voting discrimination was well in the past, the VRA provision requiring pre-clearance for voting changes from states and localities with histories of discrimination was no longer needed.
Trump’s efforts, in other words, are in line with what leading Republicans have long worked for behind the scenes.
Jesse H. Rhodes is associate professor of political science at the University of Massachusetts at Amherst. He is the author of “Ballot Blocked: The Political Erosion of the Voting Rights Act” (Stanford University Press, 2017).