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The Court & the Right to Vote: A Dissent

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Danny Lyon/Magnum Photos
Demonstrators from the Student Nonviolent Coordinating Committee about to be arrested by police for urging blacks to register to vote, Selma, Alabama, October 1963

In Bending Toward Justice, Professor Gary May describes a number of the conflicts between white supremacists in Alabama and nonviolent civil rights workers that led to the enactment of the Voting Rights Act of 1965—often just called the VRA. The book also describes political developments that influenced President Lyndon Johnson to support the act in 1965, and later events that supported the congressional reenactments of the VRA signed by President Richard Nixon in 1970, by President Gerald Ford in 1975, by President Ronald Reagan in 1982, and by President George W. Bush in 2006.

May’s eminently readable book is particularly timely because the Supreme Court, on June 25, 2013, issued its decision in Shelby County v. Holder, invalidating the portion of the 2006 enactment that retained the formula used in the 1965 act to determine which states and political subdivisions must obtain the approval of the Department of Justice, or the US District Court in the District of Columbia, before changes in their election laws may become effective. That formula imposed a “preclearance” requirement on states that had maintained a “test or device” as a prerequisite to voting on November 1, 1964, and had less than a 50 percent voter registration or turnout in the 1964 presidential election. Alabama, where Shelby County is located, is one of those states. Over the dissent of Alabama-born Justice Hugo Black, the Court had upheld the preclearance provision shortly after the VRA was enacted in 1966 in South Carolina v. Katzenbach.

May’s book contains a wealth of information about the events that led to the enactment of the 1965 statute—and about the dedication and heroism of little-known participants in the events that came to national attention in 1964 and 1965. It includes both favorable and unfavorable information about well-known figures like Martin Luther King Jr. and J. Edgar Hoover, and about some of the methods used by whites to prevent blacks from voting and from registering to vote.

In his prologue the author makes it clear that in the 1960s in the Deep South not only were African-Americans prohibited from voting, but it was dangerous for them to attempt to do so. He describes the contrast between the oppression during the 1960s and the conditions a century earlier during the period that later became known as “Radical Reconstruction.” During the decade after the Civil War, when the South was divided into military districts occupied by federal troops, southern blacks enthusiastically embraced their newly acquired political freedom:

As many as two thousand served as state legislators, city councilmen, tax assessors, justices of the peace, jurors, sheriffs, and US marshals; fourteen black politicians entered the House of Representatives; and two became US Senators.

Although he does not identify the withdrawal of federal troops in 1876 as the principal cause of the change, May notes that by 1877 “southern white Democrats had overthrown every new state government and established state constitutions that stripped black citizens of their political rights.” Terrorist groups “like the Ku Klux Klan and the Knights of the White Camellia destroyed black schools and churches and murdered at will.”

State election laws that were enacted after 1877 were disastrous for black citizens. Whereas 130,000 blacks had been registered to vote in Louisiana in 1896, only 1,342 were registered to vote in 1904. In Alabama only 2 percent of eligible black adults were registered, and they risked serious reprisals if they attempted to exercise their right to vote. Black disenfranchisement, like segregation, was nearly complete throughout the South for well over sixty years. It was enforced not only by discriminatory laws, but also by official and unofficial uses of violence.

Writing for the five-man majority in Shelby County, the recently decided Supreme Court case challenging the VRA, Chief Justice John Roberts noted that “times have changed” since 1965. The tests and devices that blocked African-American access to the ballot in 1965 have been forbidden nationwide for over forty-eight years; the levels of registration and voting by African-Americans in southern states are now comparable to, or greater than, those of whites.

Moreover, the two southern cities, Philadelphia, Mississippi and Selma, Alabama, where the most publicized misconduct by white police officials occurred in 1964 and 1965, now have African-American mayors. In view of the changes that have occurred in the South, the majority concluded that the current enforcement of the preclearance requirement against the few states identified in the statute violates an unwritten rule requiring Congress to treat all of the states as equal sovereigns.

The Court’s heavy reliance on the importance of a “fundamental principle of equal sovereignty among the States,” while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted “three fifths” of a state’s slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College. That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states.

The fact that this “slave bonus” created a basic inequality between the slave states and the free states has often been overlooked, as has its far-reaching impact. In 1800, for example, that bonus determined the outcome of the presidential election since it then gave the southern states an extra nine or ten votes in the Electoral College, and Thomas Jefferson prevailed over John Adams by only eight electoral votes. Because of the slave bonus, Adams served only one term as president.

The slave bonus unfairly enhanced the power of the southern states in Congress throughout the period prior to the Civil War. It was after the war that Section 2 of the Fourteenth Amendment, passed in 1868, put an end to the slave bonus. When the Fifteenth Amendment was ratified in 1870 during the Grant administration, the size of the southern states’ congressional delegations was governed by the number of citizens eligible to vote. Since that number included blacks as well as whites, during Reconstruction those states were no longer overrepresented in either Congress or the Electoral College.

After reconstruction ended, however, the terrorist tactics of the Ku Klux Klan and other groups devoted to the cause of white supremacy effectively prevented any significant voting at all by African-Americans, thus replacing a pre-war three-fifths bonus with a post-Reconstruction bonus of 100 percent of the nonvoting African-Americans. Thus, for almost a century—until the VRA was enacted during President Johnson’s administration—the southern states’ representation in Congress was significantly larger than it should have been.

Both the underrepresentation of blacks and the overrepresentation of white supremacists in the South during that period contradict the notion that the “fundamental principle of equal sovereignty among the States” is a part of our unwritten Constitution. As Justice Ginsburg pointed out in her largely unanswered dissent in the Shelby County case, the Court in its opinion upholding the original 1965 Voting Rights Act

held, in no uncertain terms, that the principle [of equal sovereignty] “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”

Except for his reference to the fact that the first century of congressional enforcement of the Fifteenth Amendment’s guarantee of the right to vote “can only be regarded as a failure,” Chief Justice Roberts’s opinion gives the reader the impression that the Voting Rights Act was Congress’s response to a specific problem that developed in the 1890s. Parroting Chief Justice Earl Warren’s opinion in South Carolina v. Katzenbach, Chief Justice Roberts wrote:

In the 1890s, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent African-Americans from voting.

There is no reference in the opinion to anything that happened before 1890. By selecting two examples—Philadelphia, Mississippi and Selma, Alabama, where black mayors now preside—to illustrate the magnitude of the change that has taken place since 1965, however, Roberts ironically emphasizes the fact that the “tests or devices” that were used in the statute’s coverage formula were not the principal means by which white supremacists prevented blacks from voting.

The contrast between Roberts’s recent opinion and Justice Abe Fortas’s opinion in United States v. Price (1966), the case arising out of the Mississippi incident, is striking. While the Chief Justice’s opinion notes that “three men were murdered while working in the area to register African-American voters,” Justice Fortas explained that the murders occurred after the three men had been taken into custody and police officers had taken them to a rendezvous with fifteen conspirators to “punish” them. In discussing the statutory issues presented by the case, Justice Fortas noted that the

purpose and scope of the 1866 and 1870 enactments must be viewed against the events and passions of the time. The Civil War had ended in April 1865. Relations between Negroes and whites were increasingly turbulent. Congress had taken control of the entire governmental process in former Confederate States…. For a few years “radical” Republicans dominated the governments of the Southern States and Negroes played a substantial political role. But countermeasures were swift and violent. The Ku Klux Klan was organized by southern whites in 1866 and a similar organization appeared with the romantic title of the Knights of the White Camelia. In 1868 a wave of murders and assaults was launched including assassinations designed to keep Negroes from the polls.

Nothing that happened before the 1890s is even mentioned in Roberts’s opinion for the Court in the Shelby County case.

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