VRA forWesleyan, 1-18-15, page 1
Vernon Burton, The Voting Rights Act in Historical Perspective.
Two things have changed the modern South: air conditioning and the
Voting Rights Act. Sadly, Americans understand better how air
conditioning operates than how the Voting Rights Act works. Partly this is
due to the better science education than civics, political science, and history
in our public schools. But at least partly we as Historians are to blame.
The Voting Rights Act is a great story with heroes and villains,
treachery and idealism. There is a long list of martyrs who died for the rights
of African Americans to vote, Medger Evers, Viola Liuzzo, Cheney,
Goodwyn, Schwerner, Martin Luther King, Jr., and tragically so many more,
especially African Americans whose history has not recorded or known
about their stories. Even Abraham Lincoln was killed not for the
Emancipation Proclamation, but for advocating African American voting, as
limited as that was. On April 11, when Lincoln gave his last speech, one
VRA forWesleyan, 1-18-15, page 2
man in the audience understood perfectly what Lincoln was speaking about.
John Wilkes Booth told his companion, “That means n----- citizenship.
Now, by God, I’ll put him through. That is the last speech he will ever
make.”
The history of the Voting Rights Act provides an opportunity to
examine core moral values of our democracy. Democracy is not static and it
advances and retreats, and this can clearly be seen with the history of voting
rights in America. The fifteenth amendment guarantees that “The right of
citizens of the United States to vote shall not be denied or abridged by the
United States or by any state on account of race, color, or previous condition
of servitude,” and that “Congress shall have power to enforce this article by
appropriate legislation.” Following Reconstruction, however, African
Americans were nearly totally disfranchised throughout the former
Confederacy. Former abolitionist and champion for African Americans
VRA forWesleyan, 1-18-15, page 3
rights Senator Charles Sumner correctly foresaw that possibility when he
abstained from voting for the fifteenth amendment in 1870. He objected to
it because it did not prohibit states from using literacy tests and poll taxes to
restrict African American voting.
After the Civil War—a whole century before the Voting Rights Act--
the 15th Amendment and the Civil Rights Acts of 1866, 1870, 1871, and
1875 gave African Americans the rights of equal accommodations and
citizenship. Newly enfranchised African Americans could elect candidates
of their choice from majority black districts. No federal mechanisms,
however, ensured a fair vote. White southern politicians instigated a
counterrevolution to resist and undermine Civil Rights legislation. Major
provisions of Civil Rights laws were systematically dismantled by the
courts, especially the Supreme Court. By World War I, the Jim Crow South
VRA forWesleyan, 1-18-15, page 4
had destroyed the country’s experiment with voluntary compliance in
interracial democracy during Reconstruction. White supremacists voted out
all African American legislators and believed black Americans would never
again be elected to office. More prophetic, however, was the 1901 farewell
address by African American Republican Congressman George White from
North Carolina: "This, Mr. Chairman, is perhaps the Negro's temporary
farewell to the American Congress; but let me say that, Phoenix-like, he will
rise up and come again."i
Ironically, one of the legacies of the Civil War was idealism in race
relations. The Midwest had been particularly racist before the Civil War,
many states prohibiting free blacks to even move into the state. But with the
Civil War, the Republican Party comes to champion rights for African
Americans and all of that idealism does not die out. When the Civil Rights
VRA forWesleyan, 1-18-15, page 5
Cases of 1883 struck down the Civil Rights Act of 1875 and when in 1884,
the Supreme Court in (UR) Hurtado v. California ruled that the 14th
Amendment did not guarantee enforcement of the Bill of Rights, states led
by the Midwest Iowa and Ohio 1884; Illinois, Indiana, Michigan, and
Nebraska 1885, Pennsylvania 1889, passed their own state civil rights
statutes. We have always explained the Great Migration of African
Americans because of economics, but I believe it was also because of
Midwestern and Northeastern state civil rights statutes that guaranteed equal
rights and the vote, even if they often were not actually practiced. Thus, you
have black Congressman, like Oscar de Priest in Chicago, elected in the
1920s from a majority black district in the late 1920s. Explains why more
senators and congressmen from IL, the districts and rights to vote.
VRA forWesleyan, 1-18-15, page 6
Because Brown v. Board in 1954 was the landmark desegregation
case, historians have focused much more on African American’s campaign
to end segregation than their campaign for a fair vote. Yet, careful study of
the historical record shows that African Americans always emphasized the
importance of the vote. A meaningful vote is the key to meaningful
citizenship. . W. E. B. DuBois argued that the right to vote not only defined
citizenship, but manhood. Back in 1937 Castell Jackson from Anderson,
South Carolina wrote to President Franklin Roosevelt regarding a proposed
anti-lynching bill, "Not worth the paper it is written on." Rather, he
implored that he be given the right to vote so that African Americans could
"work out our own salvation state by state." Osceola McKaine, African
American field organizer of the Southern Conference for Human Welfare,
traveled the South in 1946 and reported, "The Negro masses have ... a keen
discernment of the relation of voting to their everyday lives." Benjamin E.
VRA forWesleyan, 1-18-15, page 7
Mays, long-time president of Morehouse College and spiritual godfather of
the Civil Rights Movement, continuously avowed from the 1930s into the
1980s that "the right to vote is the most sacred thing a man can have." In
1957 Mays’ student, Martin Luther King, Jr., echoed his mentor when he
equated the right to vote with a moral issue connected with America's sin of
slavery, "So long as I do not firmly and irrevocably possess the right to vote,
I do not possess myself."ii King demanded, “Give us the Ballot!”
The bloody events of the summer of 1963 in Birmingham and
subsequent assassination of President John Kennedy caused Attorney
General Robert Kennedy to fear revolution if some government action for
civil rights were not taken to defuse the situation. Intended to eradicate
racial discrimination in America, the 1964 Civil Rights Act merely
reinstated provisions of the earlier Civil Rights Acts of 1866 and 1875 and
stressed voluntary compliance through state and local action. Despite
VRA forWesleyan, 1-18-15, page 8
formidable efforts of local African American leaders, Civil Rights
organizations, and voting education projects, Alabama still had less than
one-fifth of eligible blacks registered to vote in 1965, an increase from 14.2
to only 19.4 percent in six years; in Mississippi, where mythic SNCC leader
Bob Moses valiantly struggled in the 1960s, black voter registration
increased from 4.4 percent in 1954 to only 6.4 percent in 1965. One study of
the 1964 Mississippi Freedom Summer chronicled six deaths, 35 shootings,
65 bombings, and 80 beatings, and only 1,200 African Americans registered.
Throughout the southern states, arbitrarily applied literacy tests continued to
disqualify African Americans from registering. One of the problems with
literacy tests was in the application. For example, here is a comment from a
local Democratic executive committee spokesman to a journalist in 1940:
"There are dam few negroes registered in any way," he observed. "If a coon
wants to vote in the primary, we make him recite the Constitution backward,
VRA forWesleyan, 1-18-15, page 9
as well as forward, make him close his eyes and dot his t's and cross his i's.
We have to comply with the law, you see." In 1962 SNCC addressed some
of the methods of vote suppression, "Whatever the apparent procedure,
purging or inflating of voting lists, economic warfare, police brutality, etc.,
all attempts to nullify the right to vote among Negroes have aimed at
psychological enslavement which has increased in effectiveness throughout
the years."iii Chief Justice Earl Warren announced the combined failures of
the Civil Rights Acts of 1957, 1960, and 1964 to remedy "the problem of
voting discrimination."iv In 1965 the goal was straightforward: the right to
vote.
Because the Civil Rights Act of 1964 had passed only after cloture
ended an 83-day marathon southern filibuster, few believed that further civil
rights legislation would be possible. Continued southern violence, however,
created a climate that allowed President Lyndon Johnson to go back to
VRA forWesleyan, 1-18-15, page 10
Congress and address voting rights. Martin Luther King, Jr., chose the ideal
city to focus the fight for voting rights: Selma, Alabama, bastion of white
supremacy and the Ku Klux Klan. One can not stress enough the
importance of the media in the success of the Civil Rights Movement and
especially the passage of the Voting Rights Act. The importance of
newspaper photographs and TV in the Civil Rights Movement goes a long
way toward explaining the difference in why the so-called Second
Reconstruction of the twentieth century was successful and the first in the
mid- nineteenth century ended so quickly. During the First Reconstruction,
northern whites fell subject to white Southern claims of the exaggeration of
terrorism and violence, but in the 1960s photographic documentation of this
violence was broadcast into people’s homes daily. On TV, America
watched senseless white savagery, now infamous in the history of the Civil
Rights Movement as "Bloody Sunday," on Edmund Pettus Bridge 7 March
VRA forWesleyan, 1-18-15, page 11
1965. Representing the white South's extreme opposition to black voting
rights, Selma was directly responsible for the passage of the Voting Rights
Act of 1965. Even before King renewed the Selma march, Johnson
appeared before a televised joint session of Congress to encourage strong
legislation for racial justice. "There can be no argument. Every American
citizen must have an equal right to vote." Racial inequality bared "the secret
heart of America" and challenged the "values and purposes and the meaning
of our beloved nation."v
When, in August 1965, Congress finally passed a Voting Rights Act,
Nicholas Katzenbach, then attorney general, remembered Lyndon Johnson's
charge; he wanted "The [expletive deleted …goddamnedest] toughest
voting rights act that you can devise." A decade later Katzenbach labeled
that bill "the most successful piece of civil rights legislation ever enacted."
Reverend Theodore Hesburgh, then President of Notre Dame and chairman
VRA forWesleyan, 1-18-15, page 12
of the U.S. Civil Rights Commission, proclaimed the Voting Rights Act
"one of the most important legislative enactments of all time."vi
The Voting Rights Act of 1965 outlaws voter qualification tests,
specifically literacy, educational achievement, and character tests. The
sections of the law most effective (which means also most controversial) are
Section 2 and Section 5. Section 2 bans the use of any “test or device” for
registering or voting and is applicable nationwide. However, voter
disfranchisement was most blatant in the South, and that is where
enforcement initially focused.
Section 5, the crux of enforcement, “the steel spine of the law,” (USA
Today, p. 2A, Richard Wolf,) which has effectively been made unenforceable
in Shelby Co V. Holder (2013), requires jurisdictions with a history of
discrimination to “preclear” all changes to their election rules and
procedures with the federal government. This section did not cover the
VRA forWesleyan, 1-18-15, page 13
whole nation, but only areas selected by an "automatic trigger." Whether
this automatic trigger was applied depended on past voting records and on
the percentage of the eligible voting age population of a jurisdiction that
voted in the preceding presidential election, and use of the literacy test. [del
for time --Jurisdictions covered by Section 5 today are the states of
Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina,
Texas, and Virginia, 40 counties in North Carolina, 5 counties in Florida, 5
counties in California, 3 counties in New York, 2 counties in South Dakota,
and 2 towns in Michigan and10 towns in New Hampshire. ]
The courts have tended to recognize that Sections 2 and 5 of the VRA
were designed to combat different evils. Thus they have seen Section 5 as
having a limited goal of insuring that a state does not adopt election
procedures or redistricting plans that “would lead to a retrogression in the
position of racial minorities with respect to the effective exercise of the
VRA forWesleyan, 1-18-15, page 14
electoral franchise.” That is, if under an election plan African Americans
regularly elected two candidate, but a change in the election laws resulted in
the election of only one black candidate, that would be retrogression. Section
2, on the other hand, was designed “as a means of eradicating voting
practices that minimize or cancel out the voting strength and political
effectiveness of minority groups.”
Historically enforcement focused on the South, and that southern
emphasis justified the measures. Like the first Reconstruction, Congress
could achieve African American enfranchisement only by focusing on the
South. -TALK - With widespread media publicity of the Civil Rights
Movement, many non Southern white Americans believed that the
geography of the U.S. tilted so that all the evils rolled below the Mason
Dixon Line.
VRA forWesleyan, 1-18-15, page 15
In 1968 Strom Thurmond, calling in his debts for helping Richard
Nixon win the presidency with his famed southern strategy, requested, "If
they are going to pass a Federal voting rights law to apply to the South, let it
apply to the rest of the Nation." Thurmond's protégé Harry Dent became
part of Nixon's staff and was determined to remove the "monkey" of the
Voting Rights Act "off the backs of the South." Despite his intentions,
Nixon was unable to retreat on the Voting Rights Act.vii Non-Southerners,
who had worked to get the Voting Rights Act passed and renewed, fought
amendments to make coverage nationwide without application of any kind
of a “trigger.” Partly this was a matter of practicality. The Justice
Department did not have the resources to police the entire nation. But partly
it was a way to get the Act renewed. One Voting Rights Act lobbyist
explained, "We could always get a majority of Congress to beat up on the
VRA forWesleyan, 1-18-15, page 16
southern minority. That is why in 1965, and renewals in 1970, 1975, and
1982 we beat back amendments to make Section 5 coverage nationwide."viii
The passage of the 1965 Voting Rights Act marked a great legislative
victory in the African American struggle for political equality. The statute
inaugurated an extended campaign to implement the rights contained in the
Fifteenth Amendment for every American. The immediate effect of the
Voting Rights Act was the enfranchisement of African Americans
previously barred from registering and voting. The Voting Rights Act of
1965 suspended the criteria responsible for the exclusion of African
American voters and authorized the federal government to supervise fair
registration and voting procedures.
The first nine counties chosen to receive federal registrars quadrupled
African American registration within one week from 1,764 to 6,998. In the
seven states of the old Confederacy covered by Section 5, the percentage of
VRA forWesleyan, 1-18-15, page 17
eligible blacks registered rose from 31% to 66% between 1965 and 1984.
Mississippi went from a national low of 7% in 1964 to 85% in 1984
(although the courts have found the last figure inflated). The elimination of
registration barriers increased both white and black participation; in absolute
numbers (not percent), new white voters exceeded new black voters, and, in
most localities, African Americans remained a voting minority.
Nevertheless, within one year of the Act's passage African American voter
registration increased 50 percent in five Southern states.
The civil rights coalition did not look at the right to vote narrowly, but
considered the ballot as heading toward self-determination, full citizenship,
and political and economic power. Although in the historical and political
literature the civil rights movement and black power are traditionally viewed
as distinct and oppositional, the right to exercise the franchise was central to
both. The first two African American representatives elected to the U.S.
VRA forWesleyan, 1-18-15, page 18
Congress after redistricting under the VRA were Andrew Young from
Atlanta (actually not a majority minority district, and after Young, it went to
a white Congressman) and Barbara Jordan from Houston (really a rim South
area,) both major cities. Indeed, for years after the Voting Rights Act very
few minorities were elected to Congress, and those that were came primarily
from rim South – Baltimore, St. Louis, and major cities). Though the
benefits of the VRA have inured primarily to voters of color, the VRA has
contributed to an expansive understanding of representation and meaningful
participation in democratic politics and has done so in a manner that
transcends race. The Voting Rights Act touches on many contemporary
issues, for example, felon disfranchisement. Moreover, the Voting Rights
Act forces more discussion about voting disputes and political participation
more generally. In the only example I know of where the have-nots
triumphed repeatedly over the haves, minority plaintiffs invoking the Voting
VRA forWesleyan, 1-18-15, page 19
Rights Act generally won in the courtroom from 1965 until 1992, opening
the American political system to more people. Fifty years and several
reauthorizations later, 1970, 75, 82, 2006, the Act remains one of the
nation’s premier vehicles for advancing the cause of racial fairness in the
electoral arena.
Franchise extension defused black militancy and channeled protests
into traditional political and especially judicial processes. Many of those
who marched with Martin Luther King, Jr., in the 1950s and 1960s became
prominent national leaders. John Lewis, SNCC leader hospitalized on
"Bloody Sunday," and the Civil Rights leader most often jailed, became a
U.S. Congressman from Georgia. Andrew Young served as Ambassador to
the United Nations and as Mayor of Atlanta and made an unsuccessful bid
for Governor of Georgia. The Reverend James Bevel, one of the Nashville
group of SNCC leaders so active in Alabama, summarized the change,
VRA forWesleyan, 1-18-15, page 20
"There is no more civil rights movement. President Johnson signed it out of
existence when he signed the voting-rights bill."ix The Civil Rights
movement entered the era of court room battles, not confrontation in front of
news cameras.
The 1965 Voting Rights Act was challenged immediately and
continues to this day to be challenged. In 1966 in South Carolina v.
Katzenbach, plaintiffs claimed that the Act violated a state’s right to control
and implement elections. When South Carolina, first in nullification and
first in secession, challenged the constitutionality of the Voting Rights Act,
the states of Alabama, Georgia, Louisiana, Mississippi, and Virginia joined
the suit. The Supreme Court, however, upheld the law in 1966. Chief
Justice Earl Warren explained the new departure: "Congress felt itself
confronted by an insidious and pervasive evil." The chief justice noted the
long history of racial discrimination in the voter registration process in South
VRA forWesleyan, 1-18-15, page 21
Carolina, directly quoting some of the more outrageous remarks of
"Pitchfork" Ben Tillman at the 1895 disfranchising convention as evidence
of the discriminatory purpose of the literacy test suspended by the Act.
Warren stated that "[t]he constitutional propriety of the Voting Rights Act of
1965 must be judged with reference to the historical experience which it
reflects." Thus, its history had finally caught up with the South. The
Supreme Court dismissed the complaint, "Hopefully, millions of non-white
Americans will now be able to participate for the first time on an equal basis
in the government under which they live."x
[?? *maybe del for time] After the Supreme Court rejected this
challenge, Mississippi and Virginia filed Allen v. Board of Elections (1969),
contending, again unsuccessfully, that the Act protected only the right to cast
a ballot, not the right to have nondiscriminatory election structures, such as
district elections.
VRA forWesleyan, 1-18-15, page 22
** And it has been challenged every since. After the Act was renewed again,
and renewed this last time a year early in 2006, (Senate unanimous 98-0,
House minimal opposition, 390-33) coming through the courts.
Although civil rights plaintiffs were enjoying success in the courts,
they were losing the war of public opinion. The success of the Voting
Rights Act has brought about a strong and decided backlash. White
opposition is complicated and in flux. Some whites simply oppose redress
of grievances; they are against affirmative action, and any redistricting to
benefit minorities. Far too many whites believe that the average African
American is faring better than the average white in terms of access to
housing, education, jobs, and health. This is absolutely false, and such
ignorance hurts the body politic.xi
There was also a side effect that historians have yet to explore. As
Northerners opposed voting rights litigation in their backyards, it gave heart
VRA forWesleyan, 1-18-15, page 23
to white southerners’ renewed opposition to voting rights litigation. When
white southern politicians saw the North fight against Voting Rights Act
lawsuits and especially the movement from an at-large election system that
diluted the minority vote, it took that as a signal from the Yankees that it
was ok to fight against these voting rights cases. The very success of the
Voting Rights Act incited a reaction especially once the cases moved North
and out of the South.
Steven Colbert, in the Colbert Report on March 16, 2009, said that
rewriting history is a good thing because we can make it better. He
recommends that now that an African American is president, we can say that
slavery never existed. Although done in humor, there are indications that in
the court of popular opinion, as well as with some justices on the Supreme
Court, this is to some degree happening. On the morning of 25 June 2013,
VRA forWesleyan, 1-18-15, page 24
in its decision in Shelby County v. Holder, the U.S. Supreme Court found
part of the Voting Rights Act to be unconstitutional,
Shelby County v. Holder, seriously challenges the pre-clearance
section 5 of the Voting Rights Act. The decision undid the important Section
5 pre-clearance of the Voting Rights Act by ruling Section 4, the automatic
trigger unconstitutional. Eliminating Section 5 is the equivalent of letting
the foxes guard the hen house (terrible cliché, better phrasing?). It was the
standard 5-4 decision against the constitutionality of the VRA this time.
Some see the election of President Barack Obama, or more correctly,
they argue that the election of an African American is the fulfillment of
Lincoln and the 13th, 14th, and 15th Amendments. [Del time I was asked by
NPR to comment on this for the North Carolina Voting Rights case, Bartlett
v. Strickland , decided March 9, 2009 by the Supreme Court with a 5-4
decision.]
VRA forWesleyan, 1-18-15, page 25
An earlier important Texas case with similar arguments to Shelby was
decided in 2009 and portended Shelby County in 2013 . A tiny jurisdiction
in Austin, Texas, challenged the constitutionality of Section 5 of the Voting
Rights Act, as reauthorized in 2006. The jurisdiction lost at the trial court
level and appealed to the Supreme Court which heard oral arguments in the
case on April 29th, 2009, and decided the case at the end of June. Chief
Justice Roberts wrote the 8-1 opinion, in which the court found that the
jurisdiction was entitled to bailout, that is they would no longer be required
to have Justice Department approval of election law changes. That allowed
the court to dodge the issue of constitutionality, but to say lots of nasty
things about Section 5. That was the last time the Supreme Court ruled on
the constitutionality of the Voting Rights Act, and specifically Section 5,
before Shelby in 2013, and the Chicago Tribune asked, “Does the election of
a black president mean racism is no longer a factor in American politics?
VRA forWesleyan, 1-18-15, page 26
And are civil rights laws outdated in the age of Obama?” That article
examined legal briefs challenging the constitutionality of section 5 of the
Voting Rights Act. On June 22, 2009, echoing traditional states' rights
rhetoric that was used to defend slavery, segregation, and disfranchisement,
Chief Justice Roberts declared that the Voting Rights Act “also differentiates
between the States, despite our historic tradition that all the States enjoy
‘equal sovereignty.’” Unlike the Warren Court, which upheld the equal
protection of individuals against racial discrimination was one of the
principal duties of the U.S. Supreme Court, the Roberts Court argued that
the Court’s role is more to protect the rights of the States to deal with voting
as they wish. Chief Justice Roberts continued: “Things have changed in the
South.” In a not so veiled threat to overturn Section 5 of the Voting Rights
Act in a later case, he stated, “Whether conditions continue to justify such
legislation is a difficult constitutional question we do not answer today.”xii
VRA forWesleyan, 1-18-15, page 27
And the Tribune seemed to agree on the grounds that “Obama’s election
heralds the emergence of a colorblind society in which special legal
safeguards for minorities are no longer required.”xiii The Supreme Court in
Shelby County v. Holder decided those legal safe guards are not still needed,
or at least the formula that determines which jurisdictions are covered is not
valid.
On the other side, civil rights advocates have presented state-by-state
data that shows persistent racial polarization in the Deep South and
elsewhere. Racism in America is still alive and well.
After the 1975 extension of the Voting Rights Act, one of the first
cases argued was Mobile v. Bolden in 1976. Residents of Mobile, Alabama
brought a class action suit against the city of Mobile, Alabama stating that
the at-large election system diluted the strength of the African American
vote and thus violated the 15th Amendment. The Supreme Court disagreed
VRA forWesleyan, 1-18-15, page 28
in 1980. Proof of discrimination in election procedures was no longer
enough to show a violation of the law. The Court ruled that the procedure
had to have been implemented with the purpose or intent of discriminating.
No longer was an outcome of racial discrimination sufficient; Mobile v.
Bolden meant that plaintiffs had to argue the issue of intent.
Voting Rights Attorneys knew that they needed historians to do intent,
and purpose. Historians have been involved for a long time in the court cases
for Voting Rights, and I believe these same historians give us some hope for
setting the record straight, and hopefully keep moving democracy forward.
[del for time ( Peyton McCrary, one of the first historians in the modern
generation of Voting Rights litigation and who was working on the Mobile
case, organized a meeting at the Atlanta Biltmore (at the end of the Southern
Historical Association meeting) in November 1980 to recruit historians to
work for Voting Rights (del. For time Morgan Kousser, Dick Engstrom,
VRA forWesleyan, 1-18-15, page 29
Armand Derfner, Frank Parker, Neil Bradley, Chris Coates, Abbigail
Thernstrom).]
In 1982, Congress again renewed the Voting Rights Act. Congress
also strengthened the law to address the Court’s retraction in the Bolden
case. It outlawed vote dilution, identifying a series of objective factors to
determine what constituted vote dilution. Congress also specified that vote
dilution would not require proof of discriminatory intent. Renewal included
a powerful amendment to Section 2; the act now prohibited electoral policies
whose purpose or "result" diluted minority voting strength. This amendment
moved beyond requiring that changes in election laws must be approved
beforehand by the Justice Department, i.e., preclearance. The renewal
outlawed pre-existing election laws that were racially discriminatory.
Ironically, in view of the heated two-year struggle in Congress, this strongest
version of the Act passed by much more overwhelming congressional
VRA forWesleyan, 1-18-15, page 30
majorities than ever before and for a longer period of time than previous
renewals, 25 years till 2007 (but renewed in 2006). Quite likely this success
was due to a growing African American influence, that is to the VRA itself.
Lawyers still felt better about having more than one arrow in quiver,
thus they have continued to use historians in voting rights cases. Moreover,
some voting rights attorneys believed that even if a judge did not find intent,
it might actually help the judge to see the institutional context. Judges could
rule that a law was not racially intentional, but still decide in favor of
Minority plaintiffs.
Moreover, generalizations about the past should not dominate public
issues when historians can provide expertise in contemporary issues. In
congressional redistricting controversies, for example, some vilify the
Voting Rights Act. That means historians have the responsibility to the
general public to explain the history, purpose, and efficacy of the Voting
VRA forWesleyan, 1-18-15, page 31
Rights Act. We have to carry their stories out of the court room and correct
the court of public opinion.
We need to remember that the former Confederate states with the help
of the Supreme Court undermined the 14th and 15th Amendments after
Reconstruction, the too brief experiment in interracial democracy ended, and
it took the Civil Rights Act and the Voting Rights Act of 1964 and 1965 to
re-establish those rights. Revolutions can and do go backward, especially in
economically difficult times, as in the great depression of 1873 into the
1890s, racial justice is often sacrificed when the economic pie shrinks and
whites perceive that there is less opportunity for them.
i
Speech of George White, U.S. Congress, House, 1901.
Castell Jackson to President Franklin D. Roosevelt, 1937 in the Papers of the Justice
Department, National Archives; Osceola McCain, Report, 31 January -- 20 February
1946, box 2, in the Records of the Southern Conference for Human Welfare Papers,
Hollis Burke Fissell Library, Tuskegee University, Tuskegee, Alabama and "The Third
Revolution," July 1946, Box 80, in the Luther Porter Jackson Papers, Johnston Memorial
Library, Virginia State University, Petersburg; Patricia Sullivan, Days of Hope: Race
ii
VRA forWesleyan, 1-18-15, page 32
and Democracy in the New Deal Era (Chapel Hill: University of North Carolina Press,
1996), p. 202Benjamin E. Mays, Born to Rebel: An Autobiography. (original 1971)
Reprint Brown Thrasher Edition. (Athens: University of Georgia Press, 1987); Martin
Luther King, Jr., "Address at the Prayer Pilgrimage for Freedom," May 17, 1957, p. 1;
David J. Garrow, "The Voting Rights Act in Historical Perspective," The Georgia
Historical Quarterly Lxxiv:3 (Fall 1990), 377.
iii
SNCC Voter Education Project.
iv
South Carolina v. Katzenbach, 383 U.S. 301, 313 (1966).
v
Garrow, Protest at Selma.
vi
Howell Raines, My Soul is Rested: The Story of the Civil Rights Movement in the
Deep South (G.P. Putman, 1977), p. 337; U.S. Congress, Senate, Committee on the
Judiciary, Extension of the Voting Rights Act of 1965 -- Hearings Before the
Subcommittee on Constitutional Rights, 94th Congress, 1st Session, 1975, p. 121, April
10, 1975; U.S. Congress, House, Committee on the Judiciary, Extensions of the Voting
Rights Act -- Hearings Before the Subcommittee on Civil and Constitutional Rights, 94th
Congress, 1st session, 1975, p. 319, March 6; David J. Garrow, Protest at Selma: Martin
Luther King, Jr., and the Voting Rights Act of 1965 (New Haven: Yale University Press,
1978), p. xi.
vii
U.S. Congress, Senate Judiciary Committee, p. 444; Leon E. Panetta and Peter Gall,
Bring Us Together: The Nixon Team and the Civil Rights Retreat (Philadelphia, 1971),
p. 106; Steven F. Lawson, "Preserving the Second Reconstruction: Enforcement of the
Voting Rights Act," Southern Studies (Spring 1983), pp. 65-6.
viii
Frank Parker to Vernon Burton, 1990, letter in possession of author.
ix
August Meier and Elliott Rudwick, CORE: A Study in the Civil Rights Movement,
1942-1968 (Urbana: University of Illinois Press, ), p. 329.
x
South Carolina v. Katzenbach, 383 U.S. 301, 313 (1966).
xi
Lexington, The Economist, October 14, 1995, p. 36.
xii
Northwest Austin Municipal Utility District No. 1 v. Holder, quotations at 1, 8, 16.
Other challenges to Section 5 are Shelby County v. Holder (Alabama) and Nix v.
Holder (North Carolina) cases. Both the South Carolina and Texas Voter ID cases will
probably both go to the Supreme Court and challenge Section 5, Texas v. Holder and
South Carolina v. Holder. I was asked by NPR to comment on a similar case for the
North Carolina Voting Rights case, Bartlett v. Strickland. In that case, decided March 9,
2009, the Supreme Court with a 5-4 decision struck down a North Carolina redistricting
plan that would have preserved minority voting power in a district where African
Americans were a significant minority, 39 percent.
xiii
Chicago Tribune, March 15, 2009.