with a new preface

The Voting Rights Act and the Transformation of American Democracy

gary may

BENDING TOWARD

JUSTICE

B E N D I N G T O WA R D J U S T I C E

Also by Gary May:

China Scapegoat: The Diplomatic Ordeal of John Carter Vincent

Un- American Activities: The Trials of William Remington

The Informant: The FBI, the Ku Klux Klan and the Murder of Viola Liuzzo

John Tyler

B E N D I N G T O W A R D J U S T I C E

The Voting Rights Act and the Transformation of American Democracy

G A RY M AY

Duke University PressDurham and London

2015

Copyright © 2013 Gary MayOriginally published by Basic Books,A Member of the Perseus Books Group

First published as a paperback edition by Duke University Press, 2015

Designed by Trish WilkinsonSet in 11- point Minion Pro

Library of Congress Cataloging- in- Publication DataMay, Gary, 1944–Bending toward justice : the Voting Rights Act and the transformation of American democracy / Gary May.pages cmIncludes bibliographical references and index.ISBN 978-0-8223-5927-2 (pbk. : alk. paper)1. United States. Voting Rights Act of 1965.2. African Americans—Suffrage—History.3. Minorities—Suffrage—United States—History.4. Election law—United States—History.5. United States—Politics and government—1861–1865.6. United States—Politics and government—1865–1933. I. Title.KF4893.M39 2014342.73ʹ072—dc23

Cover art: Young Man Waving American Flag during Selma to Montgomery Civil Rights March. © Steve Schapiro/Corbis

For Gail and William Aaron May, with love, and to the thousands of men and women, lost to history, who fought and died to make America a better country.

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Contents

Prologue:  The Most Powerful Instrument ix

Preface for the Paperback Edition xxiii

O N E Planting the First Seed 1

T W O An Ideal Place 25

T H R E E “Give Us the Ballot!” 53

F O U R Nothing Can Stop Us 85

F I V E To the Promised Land 125

S I X The Die Is Cast 149

S E V E N Breaking Down Injustice 171

E I G H T Where the Votes Are 203

N I N E The Struggle of a Lifetime 237

Acknowledgments 255

Notes 257

Index 303

Hattiesburg, Mississippi, 1964. Two African Americans attempt to register to vote while white o�cials look on. �e sign on the wall informs them that in ten days everyone will know. �eir names and addresses will be published in the local news-paper, giving opponents of black su�rage a chance to retaliate against them. © 1976 MATT HERRON/TAKE STOCK/THE IMAGE WORKS

Although he is only twenty-one years old, Bernard Lafayette is already a sea-soned civil rights activist: a veteran of the Nashville sit-ins, the Freedom Rides, organizing in Mississippi, he now comes to Selma to take a job nobody wanted.© AP/CORBIS

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Preface for the Paperback Edition: “Rainstorm”

August 6, 2015, marks the fiftieth anniversary of the signing into law of the 1965 Voting Rights Act, arguably the most important law in mod-ern American history. It will be a bittersweet anniversary, both a celebration of past achievements and, what some fear, a eulogy for a bygone age.

Honored will be the many African Americans who risked everything— their homes, their jobs, even their lives, to win the right to vote. As they do every year, thousands will gather in Selma, Alabama, in early March to re-member the pivotal event that led to the passage of the Voting Rights Act. On March 7, 1965, a day later remembered as “Bloody Sunday,” civil rights activists, demonstrating for voting rights, were savagely attacked by Alabama state troopers and vigilantes armed with bats, electric cattle prods, and tear gas as they tried to cross the Edmund Pettus Bridge. That night, ABC News interrupted its Sunday Night Movie to inform the nation of the tragedy. The raw footage shown had no narration and ran for fifteen minutes. Viewers, estimated at 48 million, were stunned by the sight of peaceful demonstrators being beaten and tear- gassed.

Others who later saw pictures of the event had similar reactions— horror, shame, and an overwhelming desire to do something. Thousands poured into Selma. Those who could not go south demonstrated in their own communi-ties, from Maine to Hawaii.

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Washington was besieged by demonstrators calling for a Voting Rights Act. President Lyndon B. Johnson was sympathetic to their demand but had been hesitating to act because he had signed the Civil Rights Act of 1964 the previous July and believed that Congress was not yet ready to pass another such law so soon. Bloody Sunday changed everything. LBJ later called it “a turning point in man’s unending search for freedom” and submitted a tough voting rights bill, which the Congress enacted four months later.

Never before had the federal government played such an intrusive role in an activity— voting— once left totally to the states. The most controversial provisions were Sections 4 and 5. Section 4 contained the criteria— literacy tests, low voter turnout— that placed certain states, then mostly in the South, under federal coverage while Section 5 was designed to prevent future dis-crimination by requiring states to seek “preclearance,” the permission of the Justice Department, or a Washington, DC, federal court before changing any voting practice.

On March 7, 1966, the first anniversary of Bloody Sunday, the US Supreme Court, in South Carolina v. Katzenbach, ruled that the Act was constitutional. Congress, it said, had responded correctly in redressing a historic grievance when it enforced the Fifteenth Amendment by passing the Voting Rights Act. “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,” wrote Chief Justice Earl Warren on behalf of the Court. Over the following forty- eight years, the temporary provisions of the Act were renewed by Con-gress four times— in 1970, 1975, 1982, and, overwhelmingly, in 2006.

The Act was immediately transformative. It removed obstacles— such as literacy tests— that had prevented African Americans from voting for the last sixty years. Black candidates across America were eventually elected to state and federal offices in record numbers. And, in 2008, Senator Barack Obama, an African American, was elected president of the United States.

The Voting Rights Act also transformed American politics. The segrega-tionist South was once thoroughly Democratic while the Republican Party was disparaged as the party of Abraham Lincoln and the abolitionists. Lyndon Johnson’s civil rights acts caused white southerners to flee first to the party of Richard Nixon and then to his Republican successors. Bureaucrats in the Nixon, Ford, and Reagan Justice Departments (such as a young John Roberts Jr.) tried to weaken the Act but its popularity, even among some con-

Preface to the Paperback Edition xxv

gressional Republicans, prevented them from dismantling it. In the end, that would be left to the Supreme Court.

On November 9, 2012, three days after the re- election of Barack Obama, the Supreme Court announced that it would hear the case of Shelby County, Alabama v. Holder. Its plaintiffs charged that Section 5 of the Voting Rights Act was unconstitutional and asked the Court to overturn it. Oral arguments began on February 27, 2013, and it was immediately clear that the Voting Rights Act was in trouble. Two issues were paramount. Was the Act still nec-essary in the Age of Obama? And what branch of government was constitu-tionally authorized to answer that question? Justice Antonin Scalia sarcasti-cally dismissed the Act as “a racial entitlement,” and accused the Congress of political cowardice when it easily renewed the Act in 2006 without up-dating its coverage formula. “Even the name of it is wonderful, the Voting Rights Act,” Scalia said. “Who is going to vote against that?” Justice Anthony Kennedy, considered the court’s swing vote because he sometimes sided with his liberal colleagues, doubted that the law was still necessary. “The Marshall Plan was very good, too,” he asserted, “[and]— the [nineteenth century’s] Northwest Ordinance, the Morrill Act— but times change.”1

Burt Rein, the lawyer for Shelby County, went further than Kennedy, asserting that racial discrimination was no longer a problem in the South. “Who gets to make that judgment really?” Justice Elena Kagan asked Rein. “Is it you, or is it the Court, or is it Congress?” “It is up to the Court,” Rein replied. Kagan was stunned: “Well, that’s a big new power that you are giving us— that we have the power now to decide whether racial discrimination has been solved? I did not think that fell within our bailiwick.” Summing up the day’s heated discussion, Pete Williams, NBC News’ legal correspondent, as-serted that “it’s safe to say there are five votes to strike down . . . parts of the Voting Rights Act.”2

Williams was correct. On June 26, 2013, the Chief Justice and his four Re-publican colleagues declared that “our country has changed” and that the Voting Rights Act had completed its historic mission. Writing for the ma-jority in Shelby County, Alabama v. Holder, Roberts noted that black voter turnout in five of the six covered states now surpassed white turnout and two southern cities, Philadelphia, Mississippi (where three civil rights workers were murdered in 1964) and Selma, Alabama, scene of Bloody Sunday, now had African American mayors. Such progress, he asserted, meant that the

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Act’s Section 4, which contained the formula that led to the coverage of the southern states, was outdated. And since those states were treated differently, Section 4 violated “the fundamental principle of equal sovereignty among the states,” and was therefore unconstitutional. The covered states were now freed from Section 5, the provision requiring “preclearance” before changing voting practices. Abolishing Section 4 left Section 5 moribund. (In a concur-ring opinion, Associate Justice Clarence Thomas called for the elimination of Section 5.)3

Associate Justice Ruth Bader Ginsburg, representing the Court’s Demo-cratic minority, summarized her view from the bench, a rare occurrence, which one Court expert called “a sign of deep disagreement.” She rejected Roberts’s notion that America was free of blatant discrimination in voting, noting that when the Congress renewed the Act in 2006, it did so based on extensive evidence that “second generation barriers”— gerrymandering, for example— still obstructed African American voting. Black empowerment had occurred, she insisted, precisely because of the existence of the Voting Rights Act. “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,” Ginsburg said.

She also accused her conservative colleagues of unwarranted judicial activism since the Voting Rights Act was explicitly created to enforce the Constitution’s Fifteenth Amendment requiring that the Congress— not the Supreme Court— create “appropriate legislation” to guarantee that a US citi-zen’s right to vote could not be “denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” “The court errs egregiously,” she ended, “by overriding Congress’s decision” to re-new the Voting Rights Act in 2006.4

Another distinguished jurist joined the debate in August. Reviewing Bending toward Justice for the New York Review of Books, former Supreme Court Justice John Paul Stevens, a lifelong Republican appointed to the Court by President Gerald Ford, issued his own dissent from the Court’s ruling. He thought Robert’s opinion ahistorical and “questionable.” His reliance on “the fundamental principle of equal sovereignty among the states” was also most curious since the Chief Justice accused the Voting Rights Act of violat-ing it but ignored the fact that for almost a century the Constitution allowed southern slave states to count their slaves as three- fifths of a man— a “slave

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bonus” that increased the South’s congressional and electoral college influ-ence. Furthermore, Roberts treated that principle as constitutional doctrine when in fact, Stevens noted, it only applied to how states were admitted to the Union.

Finally, he called Justice Ginsburg’s thirty- seven page dissent (which was longer than the majority opinion) concise, clear, and “eloquent,” and shared the minority’s view that Congress— not the Supreme Court— was “the branch of government designated by the Fifteenth Amendment to make decisions of this kind.”5

The months that followed the Court’s decision provided additional evi-dence of the need to restore the Voting Rights Act to its formal glory. Texas, South Carolina, Mississippi, North Carolina, Georgia, and other formerly covered states announced their intention to enact redistricting plans, limit voting time, and require voter IDs, which the Justice Department had earlier blocked under Section 5. Congressional efforts to enact a new Voting Rights Act were making little headway given the Republican- dominated House, and the party of Lincoln showed little interest in supporting new legislation. “The South continues to restrict voting rights more aggressively than anywhere else in the country,” noted journalist Ari Berman. “What has changed in re-cent years isn’t the South but the fact that states like Kansas and Ohio and Wisconsin and Pennsylvania have adopted southern- bred voter suppression tactics. Just when the VRA should’ve been expanded to cover the surprisingly wide scope of twenty- first- century voting discrimination, the Supreme Court instead gutted the law.”

There have been a few victories for voting rights advocates. In January, March, and May 2014, judges in Pennsylvania, Wisconsin, and Arkansas blocked voter ID laws that discriminated against blacks, the elderly, the poor, and students. In North Carolina, a biracial group called the Moral Monday Movement fought the efforts of the Republican state legislature to curtail vot-ing rights and pass legislation benefiting the wealthiest citizens.6

America is evolving into a more multiethnic nation much to the displea-sure of Donald Trump, Bill O’Reilly, and Cliven Bundy, the Nevada rancher who famously remarked that African Americans were better off as slaves. America has not changed as much as Chief Justice Roberts and his col-leagues believe. It is necessary to strengthen voter protections not dismantle them. “Race matters,” Justice Sonia Sotomayor noted recently, “because of the

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slights, the snickers, the silent judgments that reinforce that most crippling: ‘I do not belong here.’ . . . While the enduring hope [is that] race should not matter, the reality is that too often it does. Racial discrimination . . . is not ancient history.”7

While it is impossible to predict the future, what is past is prologue. It seems certain that the struggle for black equality in the polling booth and in many other places will go on. It is up to every citizen to join this struggle. “The right to vote is . . . the lifeblood of our democracy,” says Attorney Gen-eral Eric Holder. “The arc of American history has bent toward the inclusion, not the exclusion, of more of our fellow citizens in the electoral process. We must ensure that this continues.”

N O T E S

1. Ryan J. Reilly, “Voting Rights Act Supreme Court Case: Scalia Condemns the Perpetuation of Racial Entitlement,” http://www.huffingtonpost.com/2013/02/27 /voting- rights- act- supreme- court_n_2768942.html. 2. Quoted in ibid. 3. Shelby County, Alabama v. Holder, Attorney General, et al., No. 12–96. Argued February 27, 2013— Decided June 25, 2013, 2, 10–12, 15–16, 25; for Thomas’s opinion see Shelby County, Thomas, J., concurring, 1–3; Adam Liptak, “Supreme Court Invali-dates Key Part of Voting Rights Act,” New York Times, June 25, 2013. 4. Liptak, ibid. 5. John Paul Stevens, “The Court and the Right to Vote: A Dissent,” New York Re-view of Books, August 15, 2013, 37–39. 6. Dale Ho, “2014: The Voting Rights Spring,” Huffington Post, May 15, 2014, http://www.huffingtonpost.com/dale- ho/2014- the- voting- rights- sp_b_5331509.html; Ari Berman, “Fifty Years After Freedom Summer, the Voting Rights Act Is Needed More Than Ever,” Nation, June 24, 2015, http://www.thenation.com/blog/180389/fifty - years- after- freedom- summer- voting- rights- act- needed- more- ever. 7. Sotomayor is quoted in Jeffrey Toobin, “Chief Justice Roberts, Meet Bundy and Sterling,” New Yorker, April 29, 2014, http://www.newyorker.com/online/blogs /comment/2014/04/chief- justice- roberts- meet- bundy- and- sterling.