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The Rise and Fall of the Voting Rights Act
By Charles S. Bullock III, Ronald Keith Gaddie, Justin J. Wert UNIVERSITY OF OKLAHOMA PRESS
Copyright © 2016 University of Oklahoma Press
All rights reserved.
ISBN: 978-0-8061-5441-1
CHAPTER 1
Conditions Giving Rise to the Voting Rights Act
I want you to write me the Goddamdest, toughest, voting rights act that you can devise.
— Lyndon Johnson to his attorney general Nicholas Katzenbach
To understand the power and speed of adoption of the Voting Rights Act, one must first understand President Lyndon Baines Johnson. One must also understand the political capital he accrued in the election of 1964. Johnson had just been reelected with one of the most commanding mandates ever received by an American president. By taking 61.1 percent of the vote, Johnson actually did better than Franklin Roosevelt had in his strongest reelection bid, when the New Dealer received 60.8 percent of the vote in 1936. Johnson swept the Northeast and Midwest, losing only the five Deep South states and his opponent Barry Goldwater's Arizona.
The politically astute Johnson had won election to the House when still in his twenties, and by the time he won a full term as president he had been in Washington half of his entire life. Three decades spent on Capitol Hill as a staffer, representative, and senator had made him the most knowledgeable and effective legislator since Henry Clay. In the House he had been a protégé of and learned from legendary Speaker Sam Rayburn. His later experience as majority leader of the Senate had reinforced a lesson in Johnson: even the most popular president's command of power is fleeting. He was also well aware that, if left to their own devices, members of Congress typically respond lethargically unless confronted with a crisis. Johnson, therefore, acted to make the most of his electoral mandate by goading Congress into action on voting rights.
As a son of the South, Johnson knew firsthand the obstacles confronted by African Americans eager to exercise the franchise. Even though the Texas Hill Country where Johnson had grown up had few blacks, his work in Texas as the director of the state's National Youth Administration had given him a broader understanding of the race issue in Texas. Campaigning for the Senate had taken him into East Texas, the part of the Lone Star State with the highest concentration of African Americans as well as strong cultural and historical ties to the Deep South. Moreover, having served with southerners, especially in the Senate, Johnson fully understood the depth of resistance to a second Reconstruction. Some senators, including his mentor, Georgia's Richard Russell, adamantly opposed black political participation. LBJ knew and appreciated the lengths to which some in his native region would go to exclude blacks from the electorate. Previous efforts to advance even tepid legislation on civil rights during the Eisenhower administration had required applying all of his powers as majority leader, and the passage of the 1964 Civil Rights Act had been accomplished only through extraordinary effort by the White House and through the invocation of the memory of a charismatic, dead president.
By 1965, President Johnson and congressional leaders in both parties had observed the extremes to which the South would go to circumvent efforts to desegregate schools. Although clearly enunciating that segregated schools could not satisfy the Equal Protection Clause, the Brown v. Board of Education (1954) decision resulted in no school districts in the Deep South coming quickly into compliance. Throughout the 1950s, Deep South schools maintained the rigid segregation of previous generations. In the Rim South, token change had begun but most children continued to attend schools in which their race constituted the vast bulk of the student body. Rather than implement the Brown decision, southern state legislators took the Supreme Court order as a challenge to devise ways to avoid compliance. Legislatures came up with a stunning array of legal subterfuges to thwart the courts. The massive resistance strategy initially devised by Virginia senator Harry Byrd involved enactment of new laws each of which would have to be challenged in court, with the school district appealing the cases and doing everything in its power to delay final adjudication. At the extreme, some Virginia school districts actually went out of business. In some Virginia counties providing public education ceased to be a government function. Elsewhere across the South, legislatures enacted laws forbidding teachers from encouraging desegregation and threatening to withdraw public funding for desegregated schools. Some local school boards sold public school facilities at virtually no cost to organizers of private, white, segregation academies. By the mid-1960s, a handful of previously all-white schools in the South had capitulated, but no more than token desegregation had occurred.
In many southern districts children who entered the first grade in the fall after the first Brown decision graduated from schools that had taken no steps toward desegregation. As Congress turned its attention to protecting the suffrage, Johnson wanted a voting rights act that would avoid a repeat of the school desegregation in which one barrier after another had to be dismantled.
BACKGROUND
That President Johnson had to put on a full-court press to deal with persistent discrimination against perspective black voters indicates the failing of the Fifteenth Amendment. That amendment, adopted in 1870, did succeed for a few years in opening the way to the ballot box for the newly freed slaves. In its early days the federal government aggressively prosecuted individuals who sought to prevent blacks from voting. But the protections proved short lived and, especially once federal troops were withdrawn after the 1876 compromise, federal protection of the right to vote largely disappeared. Black participation declined, although it was not until the very end of the nineteenth century that concerted efforts began to eliminate most blacks from the electorate. The final onslaught against black voting began in the Mississippi Constitution of 1890, in which the two most significant provisions directed at reducing black participation implemented a literacy test and required that voters pay a poll tax. After the Supreme Court upheld these provisions, within short order other southern states adopted one or both. By 1908 when Georgia added a literacy test to the poll tax it had collected for many years, the innovations from Mississippi had spread across the South.
The poll tax, collected in a color-blind fashion, also kept many poor whites from participating. The literacy test would have also been a formidable challenge to many whites, and so efforts were made to get illiterate whites on the voting rolls. One technique, the grandfather clause, exempted those whose ancestors had voted in the past or whose ancestors had fought for the Confederacy or served in the military forces of the United States.
Unlike the poll tax and the literacy test, which were colorblind on their faces, the white primary provided an even more effective technique for minimizing black political influence. With the exception of a few mountainous sections, by the turn of the twentieth century and the demise of the Populist Party only Democrats won southern elections. If blacks were kept from voting in the primary, then even if they managed to register and vote in the general election they had no impact on political outcomes.
The first successful challenge to a Jim Crow voting law came in a 1915 Oklahoma case that invalidated the grandfather clause as a means for whites to avoid the literacy tests. But it would be decades before another would permanently fall. After a generation of legal sparring that involved four separate trips to the Supreme Court, in 1944 the white primary was invalidated in Smith v. Allwright. Beginning in the 1930s, Congress considered outlawing the poll tax, but southern senators managed to prevent action.
In addition to laws that kept black participation low in the South, discriminatory application of the standards, especially the literacy tests, was widespread. Even some blacks who managed to register subsequently had their registration challenged. African Americans brave enough and persistent enough to register might encounter still further obstacles if actually trying to vote. In some instances black voters were threatened at the polls and driven away. In 1946 the only African American who dared to vote in Taylor County, Georgia, was killed a few days later.
Despite the problems of discriminatory application of requirements for voting and intimidation, black registration began growing slowly after the demise of the white primary. From 1947 to 1950, the share of black adults registered to vote across the South grew from an estimated 12 to 18 percent. By the middle of the 1950s, black registration had continued to grow, but three-fourths of the adults remained off the registration rolls. Alabama, Mississippi, and Virginia, which required both a literacy test and the poll tax, had the lowest incidences of black registration as of 1955. In the first two states, less than a tenth of the black adults had registered, and in Virginia it was less than one-fifth. Less than 5 percent of Mississippi's African Americans registered to vote. At the upper end, in Arkansas, Florida, Louisiana, and Texas about a third of black adults had signed up to vote.
It was in this context that Congress began to give serious consideration to providing federal protection for African Americans eager to exercise the franchise. Although conservative Virginia representative and chair of the House Rules Committee Howard "Judge" Smith managed to prevent adoption of a civil rights act in 1956, the next year Congress finally took the first hesitant modern steps toward protecting the suffrage. Momentum was beginning to build as civil rights became the foremost concern in the American political system.
THE CIVIL RIGHTS ACTS
The 1957 Civil Rights Act became the first federal civil rights legislation adopted since 1875. From today's perspective, the 1957 legislation may seem modest; however, since there had been no congressional action in generations, even this first modern attempt did not come easily. The 1957 legislation facilitated legal challenges to discriminatory behavior by authorizing the attorney general of the United States to file suit against local election officials in jurisdictions that had a pattern or practice of discriminating against prospective voters. Having the attorney general provide the legal muscle eliminated the need for local citizens unjustly turned away at the polls or at the registration desk to dip into their own resources to hire attorneys and cover court costs. Moreover, since some of the challenges involved claims that local registration officials unfairly enforced literacy tests, it might require extensive digging through years of registration records to build a case that the registrar had rejected educated black applicants while allowing illiterate whites to become voters. Another advantage of having the attorney general sue the registrar was that the plaintiff would be the United States and not a local individual who might suffer physically or economically at the hands of outraged whites.
In the immediate aftermath of Brown v. Board of Education, the Montgomery bus boycott, and the Emmett Till lynching, southern congressional leaders recognized that the winds of change could no longer be contained. The most they could achieve was to water down the bill. Senator Richard Russell (D-Ga.), who led the southern opposition, felt that he had negotiated the best possible deal on the 1957 legislation. At Russell's urging, the legislation provided that suits filed by the attorney general would be tried by juries in the federal district court in which the offending registrar resided. Russell anticipated that it would be difficult to find a jury — one that would be overwhelmingly if not exclusively white — that would convict a registrar who sought to prevent black registration. Only if a registrar who had been enjoined to stop discriminating against blacks continued the illegal practices would the second suit be tried by a federal judge, not a local jury. The 1957 act also created the U.S. Commission on Civil Rights, which over the next several years conducted extensive studies documenting the inequalities confronted by many African Americans in the South.
Russell convinced all but one of his fellow southern Democratic senators to allow the bill to become law. The Georgia senator recognized that he had too few allies to maintain a filibuster and feared that the effort would prove counterproductive, since angry northerners might insert harsher provisions. The agreement almost came undone, however, when Senator Strom Thurmond (D-S.C.) staged a one-man filibuster. The Thurmond effort proved unavailing but did set a record that still stands for the longest solo filibuster; Thurmond stayed on his feet and spoke on the Senate floor for more than twenty-four hours.
Slow progress in the wake of the 1957 legislation (see next section) led Congress to revisit the problems of black registration in 1960. One problem that illustrated the continued opposition to black voting in the South became apparent when federal attorneys and investigators went about preparing their cases. To demonstrate that local election registrars discriminated against blacks, prosecutors had to show that black and white applicants were treated differently, for example, with black applicants held to higher standards than whites when trying to register. To build these cases required the gathering of extensive data held by registration officials. Efforts to get records from past elections often came up short, as when local officials claimed that the requested documents had been lost or destroyed. In Alabama little-known local judge George Wallace took control of the voting records for two counties in his jurisdiction and refused to make them available to federal officials until he was threatened by his former law school classmate and friend, federal judge Frank Johnson, with contempt. Wallace, seeking to attract the name recognition that would ultimately help him win four terms as Alabama's governor, released the requested documents to the county grand juries, which then gave the material to federal investigators. Even as he complied, Wallace portrayed himself as standing alone against federal officialdom, a role he reprised on national television as governor in an equally futile attempt to prevent desegregation of the University of Alabama. In a self-serving move, Wallace prepared and had the grand jury issue the following statement: "We commend the courageous action of the honorable George C. Wallace who risked his very freedom in the federal courts in carrying out his duties and oath of office as a Circuit Judge. ... The great need of the South today is for more men of the foresight and determination of Judge George C. Wallace."
The Civil Rights Act of 1960 sought to plug holes in the 1957 act like those encountered in Alabama. The 1960 law required that officials maintain all election documentation for up to twenty-two months after an election and that they make it available to federal officials. The 1960 legislation also authorized the appointment of a federal official to register blacks in a county if, after a trial, a judge found that a pattern or practice of discrimination had characterized the registration process.
In 1964, President Johnson goaded Congress into adopting a sweeping civil rights bill that addressed school desegregation, equal employment opportunities, and access to public accommodations along with further efforts to facilitate black access to the ballot. The main thrust of the 1964 law was not voting rights, but the new legislation did stipulate that any applicant who had completed the sixth grade in an American school was presumed literate. This change meant that, for applicants who had made it to junior high, the local registrar bore the burden of demonstrating the applicant's illiteracy rather than the applicant having to convince the registrar that he or she could read and write. Henceforth literacy tests must be conducted in writing, and anyone who failed had the opportunity to review the basis for the rejection. The legislation also forbade election registrars from rejecting applicants who had minor errors or omissions in their paperwork.
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Excerpted from The Rise and Fall of the Voting Rights Act by Charles S. Bullock III, Ronald Keith Gaddie, Justin J. Wert. Copyright © 2016 University of Oklahoma Press. Excerpted by permission of UNIVERSITY OF OKLAHOMA PRESS.
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