Just as the US Supreme Court pretended Jim Crow had nothing to do with the laws that disfranchised Black Americans, the justices have now ignored the impact of COVID-19 on Black Americans’ voting rights. As before, the court is playing a starring role in democracy’s demise.
In a series of recent decisions imperiling voters’ access to the ballot box, the Supreme Court acted as if COVID-19 barely existed and the laws Republicans passed for absentee ballots were actually about election security and not outright disfranchisement. The first instance was the stunning decision in April that forced Wisconsin voters, in the middle of a pandemic, to make a Hobson’s choice between the right to vote or their own safety. In an unsigned decision by the five conservative justices, COVID-19 was barely mentioned, only that the tens of thousands of requested absentee ballots, which had not yet even arrived in the homes of voters by that night, still had to be postmarked by the next day to count. The result was that many in Wisconsin stood in line, risked their health to vote, and paid the horrible price by contracting the virus.
The justices then followed that debacle with another decision that was even more macabre, because by then COVID-19 had claimed more than 130,000 lives in the United States. The Court decided to allow Texas and Alabama to ignore the contagion and keep in place witness signatures and ID requirements — which were, in effect, barriers to voting — for absentee ballots, although, for many, those requirements can be secured only by violating the social distancing measures necessary to keep the novel coronavirus at bay. Worse, because both access to the government-issued photo identification required to vote and COVID-19 disproportionately impact Black and Latino voters, the sanitized bureaucratic language of absentee ballot requirements amounts to nothing less than biological warfare on the right to vote for more than 25 percent of registered voters in Alabama and 43 percent in Texas.
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.