J. Morgan Kousser ’65 Gives a Brief History of Voting Rights

Morgan Kousser ’65, professor emeritus of history and social science at Caltech, has testified in more than 50 voting-rights cases. This spring, Kousser testified in a major Florida voting-rights case, Jones v. DeSantis, which challenged a Florida law passed after a 2018 ballot measure restored the right of formerly incarcerated people to vote upon completion of their sentences. The law, SB 7066, stipulates that people convicted of felonies cannot vote until they have paid fees related to their convictions, a move that the ACLU likened to a poll tax. Ruling on Sept. 11, the 11th Circuit Court of Appeals upheld the law. Though that decision is expected to be appealed to the U.S. Supreme Court, it makes it unlikely that many of the estimated 800,000 Floridians who have completed their sentences will be able to cast ballots in the November election.

Lavinia Liang ’18 spoke with Kousser about America’s long history with voting rights.

How would you describe the history of voting rights in the United States?

I think that the pattern of voting rights in the U.S. has been cyclical. That’s particularly the case with regard to African Americans, but it’s also been the case for whites. Interestingly, in the 18th century, poll taxes at first increased the enfranchised, since more men could qualify to vote under poll taxes than under the traditional requirements of land ownership. It was only in the late 19th century that it was used to disfranchise Blacks, particularly in the South. In the 1980s and 1990s, the ACLU did a lot of work with Native American suffrage, and they got a lot of laws eliminated that had made it more difficult for Native Americans to vote. But those kinds of laws are coming back now. And we’ve had various kinds of laws that were enforced against Asian Americans.

One thing I would point out about Black disfranchisement is the importance of laws that were really half-measures … Gerrymanders, registration laws — these sorts of intermediate laws made it more difficult for Blacks and their white allies to win, and therefore made it easier for disfranchisers to pass laws to disfranchise them more.

These are the sorts of laws we’re seeing now: voter-ID laws, laws that continue voter suppression — as in Florida with the felon-enfranchisement law, which cut the number of new people who could register to vote from perhaps 750,000 to 800,000 to under 100,000. 

There are continuous patterns of [improvements and regressions], and large bursts of political power by groups that are not in the superior position in the polity have often been reversed, at least partially, afterward. Right now, for African Americans and Latinos, we seem to be in a retrograde time — which seems very paradoxical, considering that after the George Floyd protests there seemed like there was a sort of interracial, interclass consensus that white supremacist policies ought to stop. But nobody’s told the judges that, and they seem to be going in a retrograde fashion. 

Interested in the election? Read Rick Pildes ’79’s advice on how to make your vote count

What are common obstacles to full enfranchisement?

There were, in the 1980s, what were called “vote caging” efforts. The Republican Party decided that they would send out postcards to registered voters in minority areas. If the postcards were returned as undeliverable, then a representative for the Republicans would go to the polls on Election Day, and if that person then showed up to vote, they [the Republicans] would challenge them, saying that they don’t live in that place anymore, or that they must not be that person. 

Voter-ID laws started to pass, and they got stricter and stricter. For example, in Texas, a student-ID card doesn’t qualify as a voter ID. A card with your picture on it saying you work for Texas state or local government won’t work. However, a card saying that you can carry a gun — that is good evidence. 

The most comprehensive suppression device — the one will probably be used the most this year — is voter purges. This can be done on the basis of an interstate voter-registration roll. Suppose there is a person with your same name in Illinois, and you’re registered to vote in New Jersey. Someone could say, “I think that person is registered to vote in Illinois, and not in New Jersey.” When this happens, the government sends you a card, asking you to affirm: “Yes, I am who I say I am, and I want to continue to register to vote.” But suppose that you don’t return the card. The government can cut you off the rolls, and they don’t have to tell you. There are 200,000 purges in Wisconsin now that are tied up in litigation — that number of votes could carry Wisconsin, easily.

What should we be prepared for, heading forward into a COVID-defined election season?

I think, first, we should be prepared not to see a final decision on election night. I fear that we should prepare for some chaos. There’s a congressional district in New York — the 12th — where the primary was not decided for six weeks because of absentee votes. In California, we’re at almost 70 percent absentee ballots, and, in 2018, there were five congressional districts that were not decided until a couple months after the election — and they all shifted, from Republican to Democratic.

In what ways is Jones v. DeSantis related to past major voting-rights cases?

If Section 5 of the Voting Rights Act [which required certain jurisdictions with a history of infringing on minority voters’ rights to obtain federal clearance before changing any voting laws] had still been in effect, and SB 7066 had been required to obtain federal clearance — it would have never passed. Well, maybe in the Trump administration, it might have. But it would not have been precleared in any other administration. 

Nearly 65 percent of people in Florida voted to end a voter-suppression device. A majority of the legislature was opposed to that, and the legislature found a way to get rid of [the voters’ choice]. Essentially, until and unless people who want to see voting become easier and more widespread control the courts, it’s not going to happen.

It’s very frustrating to read the 11th Circuit’s opinion, particularly because Judge Pryor just assumes that the Republicans who passed SB 7066 did so only to put into effect the clear intent of the Florida electorate. It’s very hard to get judges to find a racially discriminatory intent, but I thought the case that I made in my [testimony] was overwhelming. The district judge was convinced by part of it, but I speculate that he was afraid that the newly-conservative 11th Circuit (with five Trump appointees) would not accept a finding of discriminatory intent, no matter how much evidence was in its favor. But at least that would have made them work a little harder. Voters in Florida know that they didn’t vote for Amendment 4 only to have a few hundred or a few thousand returning citizens get the right to vote back.

The outcome shows once again how important it is to elect executives who will appoint judges who are open to evidence and confident that if they argue logically and factually, their opinions will be accepted, instead of judges like those in the Jones majority in the 11th Circuit, whose opinions on nearly all important subjects are fixed before a single brief is filed.

What changes do you think the Black Lives Matter movement might have in the long term?

I think it will have a long-term effect on the criminal-justice system, but until that can be written into law at the state level — because most criminal-justice laws are at the state level — it’s too early to tell how big of an effect it’ll have. A lot of that will be determined by who wins state legislatures in 2020, who reapportions the congressional districts, what the courts say about reapportionment — and that’s hard to predict right now.