n the morning of his wedding, in 1956, Henry Frye realized that he had a few hours to spare before the afternoon ceremony. He was staying at his parents’ house in Ellerbe, N.C.; the ceremony would take place 75 miles away, in Greensboro, the hometown of his fiancée; and the drive wouldn’t take long. Frye, who had always been practical, had a practical thought: Now might be a good time to finally register to vote. He was 24 and had just returned from Korea, where he served as an Air Force officer, but he was also a black man in the American South, so he wasn’t entirely surprised when his efforts at the registrar’s office were blocked.
Adopting a tactic common in the Jim Crow South, the registrar subjected Frye to what election officials called a literacy test. In 1900, North Carolina voters amended the state’s Constitution to require that all new voters “be able to read and write any section of the Constitution in the English language,” but for decades some registrars had been applying that already broad mandate even more aggressively, targeting perfectly literate black registrants with arbitrary and obscure queries, like which president served when or who had the ultimate power to adjourn Congress. “I said, ‘Well, I don’t know why are you asking me all of these questions,’ ” Frye, now 83, recalled. “We went around and around, and he said, ‘Are you going to answer these questions?’ and I said, ‘No, I’m not going to try.’ And he said, ‘Well, then, you’re not going to register today.’ ”
DISENFRANCHISED
This article is the first in a series examining the ongoing effort to roll back the protections of the Voting Rights Act.
Sitting with me on the enclosed porch of his red-brick ranch house in Greensboro, drinking his wife’s sweet tea, Frye could joke about the exchange now, but at the time it left him upset and determined. When he met Shirley at the altar, the first thing he said was: “You know they wouldn’t let me register?”
“Can we talk about this later?” she replied.
After a few weeks, Frye drove over to the Board of Elections in Rockingham, the county seat, to complain. An official told him to go back and try again. This time a different registrar, after asking if he was the fellow who had gone over to the election board, handed him a paragraph to copy from the Constitution. He copied it, and with that, he became a voter.
But in the American South in 1956, not every would-be black voter was an Air Force officer with the wherewithal to call on the local election board; for decades, most had found it effectively impossible to attain the most elemental rights of citizenship. Only about one-quarter of eligible black voters in the South were registered that year, according to the limited records available. By 1959, when Frye went on to become one of the first black graduates of the University of North Carolina law school, that number had changed little. When Frye became a legal adviser to the students running the antisegregation sit-ins at the Greensboro Woolworth’s in 1960, the number remained roughly the same. And when Frye became a deputy United States attorney in the Kennedy administration, it had grown only slightly. By law, the franchise extended to black voters; in practice, it often did not.
What changed this state of affairs was the passage, 50 years ago this month, of the Voting Rights Act. Signed on Aug. 6, 1965, it was meant to correct “a clear and simple wrong,” as Lyndon Johnson said. “Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote.” It eliminated literacy tests and other Jim Crow tactics, and — in a key provision called Section 5 — required North Carolina and six other states with histories of black disenfranchisement to submit any future change in statewide voting law, no matter how small, for approval by federal authorities in Washington. No longer would the states be able to invent clever new ways to suppress the vote. Johnson called the legislation “one of the most monumental laws in the entire history of American freedom,” and not without justification. By 1968, just three years after the Voting Rights Act became law, black registration had increased substantially across the South, to 62 percent. Frye himself became a beneficiary of the act that same year when, after a close election, he became the first black state representative to serve in the North Carolina General Assembly since Reconstruction.
In the decades that followed, Frye and hundreds of other new black legislators built on the promise of the Voting Rights Act, not just easing access to the ballot but finding ways to actively encourage voting, with new state laws allowing people to register at the Department of Motor Vehicles and public-assistance offices; to register and vote on the same day; to have ballots count even when filed in the wrong precinct; to vote by mail; and, perhaps most significant, to vote weeks before Election Day. All of those advances were protected by the Voting Rights Act, and they helped black registration increase steadily. In 2008, for the first time, black turnout was nearly equal to white turnout, and Barack Obama was elected the nation’s first black president.
Since then, however, the legal trend has abruptly reversed. In 2010, Republicans flipped control of 11 state legislatures and, raising the specter of voter fraud, began undoing much of the work of Frye and subsequent generations of state legislators. They rolled back early voting, eliminated same-day registration, disqualified ballots filed outside home precincts and created new demands for photo ID at polling places. In 2013, the Supreme Court, in the case of Shelby County v. Holder, directly countermanded the Section 5 authority of the Justice Department to dispute any of these changes in the states Section 5 covered. Chief Justice John Roberts Jr., writing for the majority, declared that the Voting Rights Act had done its job, and it was time to move on. Republican state legislators proceeded with a new round of even more restrictive voting laws.
All of these seemingly sudden changes were a result of a little-known part of the American civil rights story. It involves a largely Republican countermovement of ideologues and partisan operatives who, from the moment the Voting Rights Act became law, methodically set out to undercut or dismantle its most important requirements. The story of that decades-long battle over the iconic law’s tenets and effects has rarely been told, but in July many of its veteran warriors met in a North Carolina courthouse to argue the legality of a new state voting law that the Brennan Center for Justice at the New York University Law School has called one of the “most restrictive since the Jim Crow era.” The decision, which is expected later this year, could determine whether the civil rights movement’s signature achievement is still justified 50 years after its signing, or if the movement itself is finished.
I. 1865-1980
1. “STATES’ RIGHTS”
The fundamental promise of American democracy is that every citizen gets a vote, but delivering the franchise from on high and in the face of violent local opposition has always been a complicated legal proposition. The 13th Amendment freed the slaves, and the 14th Amendment gave them citizenship. But the key to Reconstruction was the 15th Amendment, ratified in 1870, which did something far more radical, not just guaranteeing (male) former slaves the right to vote but giving Congress the authority to enforce that right state by state, an authority that to this day many legislators see as a drastic intrusion into local affairs.
The new laws immediately enfranchised more than 700,000 black Southerners. Although blacks made up just 13 percent of the overall United States population, they made up 36 percent of the South’s population and a much higher percentage in some states, including a majority in Mississippi and South Carolina. Their enfranchisement was a shock to the political system that almost exclusively benefited Republicans, the party of Lincoln.
A BRIEF HISTORY OF THE BLACK VOTE (UP TO THE VOTING RIGHTS ACT)
1870 As part of the Republican-led Reconstruction after the Civil War, the 15th Amendment bars states from denying the franchise based on race.
1870 Hiram Rhodes Revels, a Republican, begins his first term as United States senator from Mississippi, which was then majority black, becoming the first black man to serve in Congress.
1877 President Rutherford B. Hayes recalls United States troops from the former Confederate states, ending Reconstruction.
1900 North Carolina amends its Constitution to require a literacy test and a poll tax.
1965 The Rev. Dr. Martin Luther King Jr. leads the last of three marches for voting rights from Selma, Ala., to Montgomery.
1965 The Voting Rights Act is signed into law by Lyndon Johnson.
Like its former Confederate neighbors, North Carolina sent several black Republicans to Congress. In the state’s General Assembly, legislators with the support of black Republicans wrote a new state Constitution in 1868 that created state-supported public schools; apportioned state representation based on population rather than wealth — a setback for the 1 percent of that era, the plantation owners; and, eventually, instituted a property tax.
Democrats throughout the South responded to the growing influence of black legislators with a brutal effort to suppress the black vote, enforced by the Ku Klux Klan and its many paramilitary imitators, who kept blacks from election polls at gunpoint and whipped or lynched many who resisted. The Southern Democrats ran on an open message of white supremacy and quickly retook statehouses, city halls and courthouses throughout the South. Within 15 years of the Civil War’s end, Reconstruction was just a memory. What followed was deconstruction: the era of Jim Crow, the poll tax, the literacy test, double primaries and a host of other mechanisms that blocked the black vote. For decades, most black citizens in the South had no practical right to vote.
Beginning in the 1950s, propelled by the Supreme Court’s decision in Brown v. Board of Education to desegregate schools, by modern media portrayals of anti-black violence and by the growing nonviolent resistance movement led by the Rev. Dr. Martin Luther King Jr., Congress began to assert its electoral authority with a series of legislative fixes. With the bipartisan Civil Rights Act of 1957, it created a separate Department of Justice civil rights division and the United States Commission on Civil Rights to monitor and investigate civil rights abuses. The fight over the law’s passage was bitter. In a party split, Southern Democrats attacked it relentlessly as a violation of “states’ rights,” a justification their predecessors used to resist abolition. The law survived the longest filibuster in Senate history, by Strom Thurmond of South Carolina, but it was considerably weakened in the process.
Congress tried again with the Civil Rights Act of 1964, a more powerful bill that ended legal segregation. But again, the segregationist Democrats who had for many years controlled the South watered down its voting provisions, leaving the poll tax and the literacy test in place. Thurmond, in a sign of things to come, left the Democratic Party entirely, switching his allegiance to the Republicans.
It took the Voting Rights Act, with its considerably stronger protections, to finally deliver the black franchise, 100 years after it was first promised. Its most extraordinary measure, the one that rankled Southern politicians the most, was Section 5. By naming specific states as bad actors that fell under special federal scrutiny, it was the ultimate affront to states’ rights. But under intense pressure, Lyndon Johnson was able to shepherd the bill into law. Its tough approach to knocking down barriers to voting, combined with a phasing in overseen by federal registrars who signed up voters throughout the South, brought about a sudden and significant increase in black voter registration — in Mississippi, black registration increased to 54 percent from 7 percent within three years. This second Reconstruction, with its second surge of Southern black voters, precipitated a second realignment of the parties, and with it an even more complex legal effort to undermine and ultimately undo the most powerful provisions of the Voting Rights Act.
2. “EVIDENCE OF NATURAL RACIAL DISTINCTIONS”
“It all goes back to winning elections,” Carter Wrenn, a longtime North Carolina Republican strategist, told me in June. Wrenn fits the prototype of the Southern Political Strategist: He’s 63, round-faced, round-waisted and always seems to be on the verge of telling another too-good story from the bygone days of American politics. Sitting behind the wide desk in his Raleigh office, wearing sweats and puffing on a cigar, Wrenn explained the existential dilemma that confronted Southern Democrats back in the ’70s, when Wrenn started working in the mighty North Carolina political operation of Senator Jesse Helms.
After Reconstruction, Wrenn explained, the South reverted to complete Democratic control. Elections were decided in the Democratic primaries, which were often fought between the conservative wing and a more moderate wing. The passage of the Voting Rights Act upset that status quo. “What the Voting Rights Act did was brought very quickly a group of African-American voters into those primaries, and it tilted the balance to the progressives,” Wrenn said. “It tilted the playing field so much that by the ’70s, it was very unlikely a conservative was going to win a Democratic primary.”
Helms, a former Raleigh city councilman, had seen it coming. After the Democratic candidate he was supporting for governor lost the primary to a pro-integration opponent in 1960, he moved full-time into a new political realm — television punditry. Owl-eyed, balding and fiery, Helms became a popular on-air commentator for WRAL-TV, where he inveighed against a civil rights movement that was infested with “moral degenerates” and willfully blind to what he called “the purely scientific, statistical evidence of natural racial distinctions in group intellect.” In 1971, he registered as a Republican. Tom Ellis, a lawyer and close political adviser, suggested that he run for the United States Senate.
The electoral path for Southern Republicans was not at all clear back then. In 1966, 18 percent of North Carolina voters were registered Republicans. In 1972, the number was still just 22 percent. At the same time, Democrat registrations were hanging in at around 75 percent. To win, Helms would need to reach and convert a lot of unhappy Democrats.
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