The Court & the Right to Vote: A Dissent

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.

The story of “Bloody Sunday” in Selma, Alabama, where, as the Chief Justice notes, “police beat and used tear gas against hundreds marching in support of African-American enfranchisement,” is told in detail in May’s book. Given the fact that 57 percent of the residents of Selma are black, it is not at all surprising that the city now has a black mayor. What is remarkable is the fact that so few members of that majority were registered to vote in 1965.

May’s description of the conditions in Selma begins with an account of the work of Bernard Lafayette, who, as a twenty-one-year-old member of the Student Nonviolent Coordinating Committee, moved into the city in 1962 to encourage blacks to register to vote. Lafayette’s commitment to nonviolent resistance to segregation, which had its origins in his religious training, was confirmed during the student sit-ins in Nashville in 1960.

Lafayette’s experiences in Selma during 1962 illuminate some of the ways in which the white minority prevented blacks from voting—by simple stonewalling in response to repeated attempts to register; by requiring them to pass impossibly difficult tests to qualify to vote; by tolerating private acts of violence by young white thugs; and by the law enforcement practices of “the city’s sheriff, Jim Clark, who dressed like George S. Patton and, with a private posse at his beck and call, ruled with an iron fist.” One of Clark’s tactics was to use cattle prods to disperse black attempts to organize peaceful demonstrations. The account of Lafayette’s activities also explains how, despite his false arrest for vagrancy and his brutal beating, he succeeded in inspiring local support for black resistance to white misrule. By the end of the summer, he was organizing weekly mass meetings attended by over eight hundred protesters.

FBI agents monitored those meetings without providing Lafayette with any special support or protection. (Indeed, the FBI appears to have been more interested in assembling adverse information about Martin Luther King Jr. than in the safety of his followers.) They noted that much of Lafayette’s support came from teenagers too young to vote. In his early organizing efforts, one important obstacle that he had to overcome was the concern of the older and more conservative members of the black community, including religious leaders, about the consequences of the white majority’s reaction to the movement.

Following the example set by Lafayette in Selma, in 1963 in Birmingham King also relied on the city’s high school and even grammar school students for help in mobilizing large demonstrations. Responding to a demonstration on May 3, the notorious “Bull” Connor, May writes,

let loose his police. They beat black youths with their nightsticks and allowed their vicious attack dogs to leap and bite the demonstrators, tearing their clothes and flesh. Then came the city’s fire hoses that, when turned on, swept people away under streams of pressurized water. The protestors rolled and tumbled like rag dolls; among them was Colia Lafayette, whose injuries would incapacitate her for several months. After the assaults came more arrests. By the end of the day over nine hundred children were in jail.

The Klan’s response to King’s demonstrations was even more vicious. On Sunday, September 15, 1963, presumably responding to King’s famous “I Have a Dream” speech in Washington in August, Klansmen bombed the 16th Street Baptist Church in Birmingham, killing four girls instantly, and precipitating additional violence that caused other deaths and severe injuries. Those incidents motivated the administration of President John F. Kennedy to seek federal legislation that would curb such violence.

I was surprised to learn from May that the proposals first advanced by the Kennedy administration, unlike the statute ultimately enacted under Johnson’s administration, would have limited the protection for the voting rights of blacks to those with a sixth-grade education. In response to Kennedy’s proposal, King’s followers “were furious. Southern States had prevented them from receiving an education equal to that of whites, and now they were being ‘punished’ for that denial at the ballot box.”

Best known of the events in 1965 that finally led to the enactment of the VRA was the confrontation on the Edmund Pettus Bridge on March 7—a date that would become known as “Bloody Sunday”—between six hundred men, women, and children who intended to march from Selma to Montgomery and helmeted Alabama law enforcement personnel armed with nightsticks, whips, and cattle prods, as well as firearms and tear gas. May describes how the police initiated their brutal attacks on the marchers, and the fact that the event was witnessed by newsmen from ABC, NBC, and CBS. National publicity generated significant support for the marchers. In her dissent in the recent Supreme Court case, Justice Ginsburg cites May’s book and refers to those beatings as “the catalyst for the VRA’s enactment.”

Her characterization of “Bloody Sunday” as the “catalyst” is supported by May. After quoting a remark made by King a few days earlier—“We will write the voting right law in the streets of Selma”—May pointed out that King was wrong because, in May’s words, “the Voting Rights Act would be written—in blood—on the Edmund Pettus Bridge.” In fact, however, during the next few days President Johnson reacted unfavorably to numerous requests for immediate action, stating that he would not be “ ‘blackjacked’ into hasty action, whether it was sending troops to Selma or sending a voting rights bill to Congress.”

Then, on Saturday, March 13, 1965 (just six days after “Bloody Sunday”), he met with Alabama’s racist governor George Wallace in the Oval Office of the White House for over three hours. Wallace’s insistence that he did not have the power to make it possible for blacks to vote in Alabama obviously offended and angered Johnson—as illustrated by the profane language that Johnson used in response—and may well have been the real catalyst that motivated prompt and decisive action by the president.

Later that Saturday Johnson held a special press conference with over a hundred reporters:

He was no longer the indecisive, hesitant leader who had met with the clergymen just a few days prior…. He surprised reporters by announcing that a new voting rights bill would be sent to Congress on Monday, March 15—just two days away.

May’s description of the events that occurred over that weekend, culminating in Johnson’s eloquent speech to Congress on that Monday evening, makes it pellucidly clear that the president had finally concluded that there was an imperative need for prompt federal intervention to protect the voting rights of blacks.

In the prologue to his book, May identifies two important consequences of the VRA: it ended a half-century of practices that prevented African-Americans from exercising their right to vote, “and it transformed American politics by turning a once-solid Democratic South into a Republican stronghold.” With respect to the first consequence, he expresses concern that even though the circumstances that gave birth to the act may not have an exact parallel today, their echoes can be found in more subtle and insidious efforts to prevent blacks from voting. He describes his concerns at length in the final chapter of his book where he criticizes photo ID laws and notes that an analysis of Obama’s election demonstrates that race remains a divisive issue—pointing to the fact that in Alabama in 2008 Obama received only 10 percent of the white vote.

With respect to the second consequence, May says very little; indeed, when I read that passage I questioned its accuracy, because during Reconstruction the former slaves voted overwhelmingly for Republican candidates and so one would expect that protecting their right to vote would benefit that party. It is not, however, an increase in the number of Republican blacks that turned the South into a Republican stronghold—because today most blacks vote for Democratic candidates. Instead, the Republican Party in the South has become more attractive to white voters who include the heirs of the white supremacists who were Democrats during and after Reconstruction.

The statistics set forth in Roberts’s recent opinion persuasively explain why a neutral decision-maker could reasonably conclude that at long last the imposition of the preclearance requirement on the states that lost the Civil War—or more precisely continuing to use the formula that in 1965 identified those states—is not justified by the conditions that prevail today. The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court. The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the VRA.

The several congressional decisions to preserve the preclearance requirement—including its 2006 decision—were preceded by thorough evidentiary hearings that have consistently disclosed more voting violations in those states than in other parts of the country. Those decisions have had the support of strong majority votes by members of both major political parties. Not only is Congress better able to evaluate the issue than the Court, but it is also the branch of government designated by the Fifteenth Amendment to make decisions of this kind.

In her eloquent thirty-seven-page dissent, Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, described the extensive deliberations in Congress over the preclearance requirement, the precedents holding that the Court has a duty to respect Congress’s decisions, and the reasons why the preclearance remedy should be preserved. Indeed, she captured the majority’s principal error concisely and clearly when she explained that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Justice Ginsburg’s conclusion sums up exactly why the VRA reauthorization should have been upheld:

The record supporting the 2006 reauthorization of the VRA is…extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27½ years” he had served in the House…. After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” …That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’s decision.

A further unusual feature of the Court’s decision merits a final comment. Instead of holding that it was unconstitutional to apply the preclearance requirement to Shelby County, the Court merely held that it was unconstitutional to use the formula in the 1965 Act to identify those jurisdictions that must have their proposed voting changes precleared. Presumably that narrower holding was intended to avoid the rule of judicial restraint that normally, in a so-called facial challenge, required the plaintiffs challenging the constitutionality of a federal statute to convince the Court that the statute is invalid under all circumstances. Thus, the Court sidestepped the problem that Alabama’s past history would adequately support a continuing application of preclearance procedures to Shelby County by focusing only on the formula used to subject Shelby County to this requirement.

That unusual method of reaching the merits of a constitutional issue without first addressing the antecedent question of what kind of challenge was before the Court was questionable to me when I first read the Chief Justice’s opinion. It struck me as even more questionable when I read Justice Scalia’s dissent in the Defense of Marriage Act case, which was decided the next day. In his dissent, Justice Scalia contended that the Court erred in its antecedent decision that it had jurisdiction to reach the merits of the constitutional challenge to DOMA. The “diseased root” that Justice Scalia described in the introductory paragraph of his DOMA dissent may well have infected the majority opinion that he joined in the voting rights case. He wrote:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.