The most famous footnote in the history of constitutional law came in a 1938 U.S. Supreme Court case dealing with federal regulation of interstate commerce. The actual decision, which allowed the federal government to prohibit the shipment of reconstituted milk across state lines, was unremarkable. Footnote four in the opinion, however, was much more important, though unrelated to the facts of the case.
Justice Harlan Fiske Stone, who spoke for the majority, called for a very strict standard of scrutiny when a law discriminates against racial, religious or other “discrete and insular minorities,” especially reducing their ability to participate politically.
Justice Stone’s reasoning highlights the close connection between political democracy and the protection of the rights of marginalized minorities. Stone recognized that in order to function democratically, the political system cannot place undue burdens upon voters, especially the most vulnerable citizens.
In reality, the targets of voter suppression have always been and still are African Americans, indigenous Americans, Americans of Latino and Asian descent and the impoverished. Our nation fails to live up to its democratic ideals when lawmakers — local, state or national — place restrictions on minorities registering to vote or casting ballots.
This does not mean that government officials cannot enact reasonable rules concerning the right to vote. They can require that voters register in the first place, and they can require some proof of the voter’s identity. They can also set up regulations dealing with the time and manner of holding elections. What lawmakers cannot do is to create rules that operate in a way to handicap “discrete and insular” racial, ethnic, religious or sexual minorities.
Unfortunately, U.S. history is filled with such attempts. Fortunately, it is also replete with attempts to defeat efforts to disfranchise citizens of color. The adoption of the 15th Amendment along with passage of the 1965 Voting Rights Act testifies to the success in expanding and protecting minority voting rights.
The problem in ensuring minority voters access to the ballot remains the shrewd but duplicitous techniques of those who seek to limit it. After Reconstruction, those who have sought to restrict the franchise have concocted measures that appear neutral on their face.
Literacy tests and poll taxes, for example, supposedly applied to all citizens attempting to vote. In practice, these measures were used to discriminate mainly against African Americans. When these devices were barred by the Voting Rights Act and the Supreme Court, disfranchisers devised other reputedly neutral means of making it harder for African Americans to vote and diluting their vote if they cast a ballot. These range from requiring a photo I.D. card to vote, placing limits on voting by mail, refusing to allow early voting on Sundays and reducing the number of polling places in minority neighborhoods.
In the modern era, such practices have been deployed by Republican Party lawmakers with surgical precision to cut away racial and ethnic minority voters for their Democratic Party opponents. Republican apologists claim that these policies are necessary to eliminate fraud and enhance election security. Yet this flies in the face of clear evidence that elections have been conducted fairly and without the kind of fraud Republicans claim they are trying to eliminate.
Since the presidential election in 2020, 43 states have introduced 253 bills that restrict access to voting, with Georgia having most recently passed such voter suppression legislation. The Florida governor and Republican Legislature have similar measures on their agenda.
In contrast, the U.S. House of Representatives has passed several bills that would reverse these restrictive measures and protect the right of all citizens to vote. It is important to remember that from 1965 to 2008, conservative Republicans in Congress supported the Voting Rights Act and its extensions. Today with their increasing dependency on a core base of white voters, they are relying on the filibuster to derail the democratic political process and threaten the rights of marginalized minorities. To paraphrase the words of Justice Stone, unless the nation can protect our “discrete” minorities in voting, democracy itself will crumble.
Steven F. Lawson is professor emeritus of history, Rutgers University.