Heather Cox Richardson

Today, Judge Timothy Walmsley sentenced the three men convicted of murdering 25-year-old Ahmaud Arbery on February 23, 2020, as he jogged through a primarily white neighborhood in Brunswick, Georgia. Travis McMichael, his father Gregory McMichael, and their neighbor William “Roddie” Bryan chased Arbery in their trucks, cornering him on a suburban street. Travis McMichael shot and killed the unarmed Arbery, while Bryan filmed the encounter from inside his truck.

While the men were convicted of several different crimes, all three were convicted of felony murder or of committing felonies that led to Arbery’s death. Under Georgia law, they each faced life in prison, but the judge could determine whether they could be paroled. Judge Walmsley denied the possibility of parole for the McMichael father and son, but allowed it for Bryan. Under Georgia law, that means he will be eligible for parole after 30 years.

The state of Georgia came perilously close to ignoring the crimes that now have the McMichaels and Bryan serving life sentences.

Gregory McMichael was connected to the first two district attorneys in charge of the case, both of whom ultimately recused themselves, but not until they told law enforcement that Georgia’s citizens arrest law, dating from an 1863 law designed to permit white men to hunt down Black people escaping enslavement, enabled the men to chase Arbery and that they had shot him in self-defense. In late April, the state’s attorney general appointed a third district attorney to the investigation. “We don’t know anything about the case,” the new district attorney told reporters. “We don’t have any preconceived idea about it.”

On April 26, pressure from Arbery’s family and the community had kicked up enough dust that the New York Times reported on the case, noting that there had been no arrests. Eager to clear his name, and apparently thinking that anyone who saw the video of the shooting would believe, as the local district attorneys had, that it justified the shooting, on May 6 Gregory McMichael arranged for his lawyer to take the video to a local radio station, which uploaded it for public viewing.

The station took the video down two hours later, but not before a public outcry brought outside oversight. The Georgia Bureau of Investigation took over the case, and two days later, on May 7, GBI officers arrested the McMichaels. On May 11, the case was transferred to Atlanta, about 270 miles away from Brunswick. On May 21, 2020, officers arrested Bryan.

On Wednesday, November 24, a jury found the three men guilty of a range of crimes on the same day that the first district attorney turned herself in to officials after a grand jury indicted her for violating her oath of office and obstructing police, saying she used her position to discourage law enforcement officers from arresting the McMichaels.

The Arbery case echoes long historical themes. Arbery was a Black man, executed by white men who saw an unarmed jogger as a potential criminal and believed they had a right to arrest him. But it is also a story of local government and outsiders, and which are best suited to protect democracy.

From the nation’s early years, lawmakers who wanted to protect their own interests have insisted that true American democracy is local, where voters can make their wishes clearly known. They said that the federal government must not intervene in the choices state voters made about the way their government operated despite the fact that the federal government represents the will of the vast majority of Americans. Federal intervention in state laws, they said, was tyranny.

But those lawmakers shaped the state laws to their own interests by limiting the vote. They actually developed and deployed their argument primarily to protect the institution of human enslavement (although it was used later to promote big business). If state voters—almost all white men who owned at least some property—wanted to enslave their Black neighbors, the reasoning went, the federal government had no say in the matter despite representing the vast majority of the American people.

After the Civil War, the federal government stepped in to enable Black men to protect their equality before the law by guaranteeing their right to vote in the states. But it soon abandoned the effort and let the South revert to a one-party system in which who you knew and what you looked like mattered far more than the law.

After World War II, returning veterans, civil rights lawyers, and grassroots organizers set out to register Black and Brown people to vote in their home states and got beaten and murdered for their efforts. So in 1965, Congress stepped in, passing the Voting Rights Act.

It took only about 20 years for states once again to begin cutting back on voting rights. Then, in 2013, the Supreme Court gutted the Voting Rights Act, and states promptly began to make it harder to vote. Since the 2020 election, 19 Republican-dominated states have made it even harder. Many of those states are now functionally one-party states, in which equality before the law matters less than belonging to the dominant group.

Now, once again, right-wing leaders are trying to center our government on the states. Today, the Supreme Court heard arguments about the Biden administration’s vaccine or testing requirement for businesses that have more than 100 employees. (Ironically, two of the lawyers arguing against the mandate had to appear virtually because they had tested positive for Covid and the Supreme Court protocols prohibited them from the court.)

A majority of the justices indicated they thought such a mandate was government overreach. Knowing that Republicans in the Senate would never permit similar legislation, Chief Justice John Roberts said that the pandemic “sounds like the sort of thing that states will be responding to or should be, and that Congress should be responding to or should be, rather than agency by agency the federal government and the executive branch acting alone.”

But states that are restricting the vote almost certainly will not respond to the pandemic in a way that represents the will of the majority, and Republicans are trying to guarantee that the federal government cannot protect voting. Just last Tuesday, January 4, 2022, Republican senators reiterated their opposition to the Democrats’ Freedom to Vote Act.

Senate Minority Leader Mitch McConnell (R-KY) told reporters that there was no need for federal election protections because states would never overturn the counting of votes after an election (although a number of state legislators tried to do just that in 2020). “The notion that some state legislature would be crazy enough to say to their own voters, ‘We’re not going to honor the results of the election’ is ridiculous on its face,” he said. Senator Joni Ernst (R-IA) said that Senate Majority Leader Chuck Schumer (D-NY) “is using the false narrative that our states cannot protect voters’ access to voting.”

They can, of course. The problem is that historically, many of them do the opposite. And the minority rule that results not only results in poor governance, it leads to the sort of society in which three men can hunt down and shoot an unarmed jogger and, unless outsiders happen to step in, run a good chance of getting away with it.