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62 Howard Law Journal 809 (2019)


In this brief history of race and voting in the United States, we look at five distinctive yet interrelated moments. The first is the founding period, a moment when the framers put our constitutional structure in place and set the initial federalist calculus in favor of the existing states. This is perhaps the most important moment in the story. The framers chose to allow the states to define the criteria for voting qualifications for federal elections. Instead of uniformity and centralization, they opted for diversity and decentralization. This is a choice that reverberates to this day. The second moment is the Civil War and Reconstruction, a moment acknowledged by many as a time when congressional leaders reset the federalism calculus towards the national government. The third moment is the expected retrenchment by the turn of the century, beginning in 1890 with the Mississippi plan. The fourth is the Second Reconstruction, which, for our purposes, culminated in the passage of the Voting Rights Act of 1965. The final moment is the concomitant retrenchment, exemplified by the recent Shelby County decision, and what commentators have labeled the new voter suppression. We take up each moment in turn.