In May 1957, Martin Luther King, Jr. gave a landmark speech in Washington, DC. This address, entitled, “Give Us the Ballot” was King’s vision about how Black voting power could transform the apartheid South. In particular, he said:
“Give us the ballot, and we will fill our legislative halls with men of goodwill and send to the sacred halls of Congress men who will not sign a ‘Southern Manifesto’ because of their devotion to the manifesto of justice.”
Maybe we had a foretaste of King’s foresight as we watched the African American vote defeat Judge Roy Moore and elect Doug Jones to the U.S. Senate from Alabama, a state at the heart of Trump conservatism. And maybe we also saw a glimpse of how an empowered Black vote can be a threat to establishments that rely on their marginalization.
But let me confess up front that I predicted Moore would win—and win outside of the margin of error–because of how Alabama had been dominated by Trump in the 2016 election and how Alabamans had elected Moore twice to statewide office (after he had been removed once and suspended once from his judgeship for violating the U.S. Constitution).
And I also knew that Alabama’s strict voter identification law, its efforts to make such identification less available, and its efforts to modulate (but not eradicate) the collateral consequences of criminal convictions that bar voting all made Alabama a focal point of the voter suppression wars.
Thus, this election was both a referendum on the divisive gender and racial politics of Donald Trump and a test of the ability of the Black community to surmount the effects of voter suppression. And I was a pessimist about both.
In a world absent the allegations that Moore had romantically pursued teenage girls while a District Attorney, absent his Islamophobic stances, and absent the prominence given to various reactionary claims, e.g., all the amendments after the Tenth are “problematic,” I probably would have been right. But all this came to light, and it demobilized white voters and energized Black voters. And that cost Moore the election.
Exit polls reveal that Black voters overwhelmingly voted for Jones and white voters voted overwhelming for Moore. Here’s the data as summarized by the Washington Post:
This was a perfect storm to cause the defeat of Trump’s chosen candidate in the heart of the Trump campaign’s base.
But the data makes two key points: first, the base of white Republican voters voted overwhelmingly for Moore despite the rhetoric and the accusations. This echoes the outcome of the 2016 election. However, fewer moderate Republicans voted for Moore; they instead supported Jones. Had there been more Republican party unity, or a more respectable candidate, the Republicans would probably have won. And presumably, in the next election cycle, Alabama Republicans will unite behind a more respectable candidate.
But this is not to deny the strength of Black voting power. African American voters were consistent with their performance in 2016 in opposing the Trump-Moore politics. This to me is a glimmer of King’s prophesy of how African Americans would use the vote to oppose white supremacy in the name of justice. They compared Moore to Jones and selected the person who they thought was “a man of goodwill.”
This happened despite the post-Shelby County, Alabama v. Holder era of voter suppression to use voter ID laws, racial gerrymandering, and structural efforts to make it more difficult for poor black Alabaman voters. I have previously discussed Alabama’s voter identification laws and the strong risk that such IDs would be unavailable to poor black voters due to DMV closings in the Black Belt (the counties in Alabama which are over 80% black and where there is high poverty). In a recent academic paper, I extend these arguments to talk about how there is a little-discussed structural problem when it comes to failing to prioritize the right to vote—and that structural misgiving can have voter suppression consequences. I have also discussed the Supreme Court’s ruling on the Alabama legislature’s effort to racially gerrymander state districts to pack black voters and preserve white Republican political power.
In short, Alabama is a front line of the post-Shelby County voter suppression wars.
Black voters turned out despite the barriers, and the efforts of civil rights groups to overcome the barriers deserve praise. Between that and the white voters who damned him by few votes, Moore lost.
It is tempting to argue that Black voters’ ability to organize and vote despite voter suppression means voter suppression claims are overblown. That reasoning is faulty. Being able to surmount an illegitimate difficulty doesn’t make the difficulty any less illegitimate. Moreover, numerous federal courts have used the Voting Rights Act of 1965 to strike down voter identification laws because of their potentially disparate discriminatory impact.
The evidence brought in court included academic studies, the documentation of the intent to suppress minority votes, and the statistical risk of disparate effects. It all supports the claim that strict voter identification laws, arbitrary and last-minute changes in the timing of voting, and arbitrary enforcement have been used in concert to unnecessarily intimidate and unduly burden the right to vote (rather than making voting more efficient or secure). This battle continues in Alabama and elsewhere to secure the legacy of the right to vote.
King foresaw what that legacy could be. He knew that the African American electorate could transform the South if voter suppression barriers were removed and African Americans brought the vote to bear. Roy Moore’s defeat by African American voters gave us a glimpse of this transformative power. But it’s also a reminder that the voter suppression war can still be lost.
And it also forces us to wonder anew if this new era of voter suppression exists because of fear of the Black ballot.
Cross-posted on Race and the Law Prof Blog.
Atiba Ellis 
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