Did We Always Care About Voting Rights?

Voting rights in the United States continue to attract public debate. Voter fraud investigations, faulty election procedures, the extension of the Voting Rights Act and, of course, the 2000 presidential election have all drawn attention. One common assumption is that the federal government must play a muscular role in addressing voting rights issues. Yet this assumption was strongly disputed fifty years ago, when Congress enacted the first modern civil rights law. What happened to change the earlier consensus that the federal government should play, at most, only a limited role in protecting the right to vote? The story of the eight short years between enactment of the Civil Rights Act of 1957 and the Voting Rights Act of 1965 helps us understand the enormous change in the role of the federal government. It is a story of conflict between local power and federal power, of conflict between white supremacists and black civil rights advocates, and of conflict between the dominant white power structure and individual black citizens who sought to register to vote.

Much has been written about voting rights in America and about the civil rights movement of the 1960’s. However, prior works tend to either treat the history with a broad brush or to focus on the dramatic events that led to the Voting Rights Act. It is time to start examining the period in more detail. Rather than demonize local officials or federal judges, we need to understand what may have led them to act the way they did. Rather than treat the civil rights movement as a collection of super-hero leaders, we need to look as well at the real heroes, the rank and file citizens who insisted on the right to vote.

Finally, in all the ink that has been spilled on this subject, the work of the federal government has been virtually ignored. Yet if one were to ask who were the important players in the march from the pallid 1957 Act -- which only authorized the United States to bring civil suits to remedy racial discrimination in voting -- to the 1965 Act -- which substituted federal officials for local registrars and required federal approval of changes in southern voting laws -- the lawyers of the Civil Rights Division of the U.S. Department of Justice would occupy a key position on the list. The progression from weak to tough legislation is based in significant measure on the 70 voting rights suits the Division brought between 1957 and 1965.

Prior studies have well described the underlying events that prompted Lyndon Johnson to propose the 1965 Act in March 1965, but they do not explain how the legislation took its shape. My book, Free at Last to Vote: The Alabama Origins of the Voting Rights Act, links the provisions of the Act to the litigation of the prior eight years, in two ways. First, the failure of some southern federal judges to award effective relief, in the face of overwhelming evidence of racial discrimination against black applicants for voter registration, convinced Congress that it should no longer leave enforcement of the Fifteenth Amendment in the hands of southern judges. Congress instead provided for administrative enforcement and moved many voting rights cases to the District of Columbia federal court. Second, the Department of Justice litigation had, in the hands of Judge Frank M. Johnson of Alabama and the judges of the Fifth Circuit Court of Appeals, fashioned a set of legal principles that Congress incorporated in the Voting Rights Act. Chief among these was the “freezing principle,” requiring registration of blacks who met the standards of the lowest qualified whites whom the registrars had registered. This essentially led to the end of the literacy test as a prerequisite to voting.

These cases could not have been brought without the efforts of black farmers, teachers, laborers, and housewives who repeatedly sought to register to vote. My study of three black-belt counties in Alabama shows that these efforts were part of a tide of activity that was independent of national organization efforts. The Mississippi Summer of 1964 was important. But so were the long-standing efforts of blacks in Elmore, Perry and Sumter counties -- backwaters of Alabama that received little attention from national organizations until 1964 or later.

Study of the stories of these cases deepens our understanding of the human element in the events that led to the adoption of the Voting Rights Act. Whites in these counties held a range of views about race. Yet even those who thought of themselves as friends to the African-American were often unable to free themselves from paternalism and the status quo. Most blacks, on the other hand, recognized the importance of gaining the right to vote and thought that fairness required nothing less. However, they were often unaware of the extent of the discrimination against them, because they did not know the extent to which illiterate whites were being registered while literate blacks were being rejected for voter registration. There is no indication that the federal judges of Alabama did not believe in enforcing the law. However, those who believed in the good faith of the Alabama whites in power assumed that strong and prompt enforcement was neither needed nor in the long-term interest of the people of Alabama, black and white. The factual record of Department of Justice litigation, the legal principles established in that litigation, and the failures of some judges created the foundation for the 1965 Act, just as the efforts of blacks to register and the graphic violence by Alabama troopers and sheriffs provided the dramatic impetus for the new legislation.

Finally, study of Johnson administration files and Congressional materials underscores the many legislative choices that the drafters of the legislation faced. At every turn of their consideration of the provisions of the Act, the litigation records influenced the outcome. This fact comes to life when one considers the disparity between treatment of the literacy test and the poll tax. The Supreme Court had upheld both. Civil rights groups wanted both declared illegal. The Johnson administration ultimately drew a sharp distinction between the two. The record of past litigation supported suspension of literacy tests. However, there was no comparable record of government litigation against the poll tax. Civil rights advocates ultimately had to settle for a provision requiring the Attorney General to bring suit challenging the constitutionality of the poll tax.

One common assumption is that the federal government must play a muscular role in addressing voting rights issues. Yet this assumption was strongly disputed fifty years ago, when Congress enacted the first modern civil rights law. What happened to change the earlier consensus that the federal government should play, at most, only a limited role in protecting the right to vote? The story of the eight short years between enactment of the Civil Rights Act of 1957 and the Voting Rights Act of 1965 helps us understand the enormous change in the role of the federal government. It is a story of conflict between local power and federal power, of conflict between white supremacists and black civil rights advocates, and of conflict between the dominant white power structure and individual black citizens who sought to register to vote.

Much has been written about voting rights in America and about the civil rights movement of the 1960’s. However, prior works tend to either treat the history with a broad brush or to focus on the dramatic events that led to the Voting Rights Act. It is time to start examining the period in more detail. Rather than demonize local officials or federal judges, we need to understand what may have led them to act the way they did. Rather than treat the civil rights movement as a collection of super-hero leaders, we need to look as well at the real heroes, the rank and file citizens who insisted on the right to vote.

Finally, in all the ink that has been spilled on this subject, the work of the federal government has been virtually ignored. Yet if one were to ask who were the important players in the march from the pallid 1957 Act -- which only authorized the United States to bring civil suits to remedy racial discrimination in voting -- to the 1965 Act -- which substituted federal officials for local registrars and required federal approval of changes in southern voting laws -- the lawyers of the Civil Rights Division of the U.S. Department of Justice would occupy a key position on the list. The progression from weak to tough legislation is based in significant measure on the 70 voting rights suits the Division brought between 1957 and 1965.

Prior studies have well described the underlying events that prompted Lyndon Johnson to propose the 1965 Act in March 1965, but they do not explain how the legislation took its shape. My book, Free at Last to Vote: The Alabama Origins of the Voting Rights Act, links the provisions of the Act to the litigation of the prior eight years, in two ways. First, the failure of some southern federal judges to award effective relief, in the face of overwhelming evidence of racial discrimination against black applicants for voter registration, convinced Congress that it should no longer leave enforcement of the Fifteenth Amendment in the hands of southern judges. Congress instead provided for administrative enforcement and moved many voting rights cases to the District of Columbia federal court. Second, the Department of Justice litigation had, in the hands of Judge Frank M. Johnson of Alabama and the judges of the Fifth Circuit Court of Appeals, fashioned a set of legal principles that Congress incorporated in the Voting Rights Act. Chief among these was the “freezing principle,” requiring registration of blacks who met the standards of the lowest qualified whites whom the registrars had registered. This essentially led to the end of the literacy test as a prerequisite to voting.

These cases could not have been brought without the efforts of black farmers, teachers, laborers, and housewives who repeatedly sought to register to vote. My study of three black-belt counties in Alabama shows that these efforts were part of a tide of activity that was independent of national organization efforts. The Mississippi Summer of 1964 was important. But so were the long-standing efforts of blacks in Elmore, Perry and Sumter counties -- backwaters of Alabama that received little attention from national organizations until 1964 or later.

Study of the stories of these cases deepens our understanding of the human element in the events that led to the adoption of the Voting Rights Act. Whites in these counties held a range of views about race. Yet even those who thought of themselves as friends to the African-American were often unable to free themselves from paternalism and the status quo. Most blacks, on the other hand, recognized the importance of gaining the right to vote and thought that fairness required nothing less. However, they were often unaware of the extent of the discrimination against them, because they did not know the extent to which illiterate whites were being registered while literate blacks were being rejected for voter registration. There is no indication that the federal judges of Alabama did not believe in enforcing the law. However, those who believed in the good faith of the Alabama whites in power assumed that strong and prompt enforcement was neither needed nor in the long-term interest of the people of Alabama, black and white. The factual record of Department of Justice litigation, the legal principles established in that litigation, and the failures of some judges created the foundation for the 1965 Act, just as the efforts of blacks to register and the graphic violence by Alabama troopers and sheriffs provided the dramatic impetus for the new legislation.

Finally, study of Johnson administration files and Congressional materials underscores the many legislative choices that the drafters of the legislation faced. At every turn of their consideration of the provisions of the Act, the litigation records influenced the outcome. This fact comes to life when one considers the disparity between treatment of the literacy test and the poll tax. The Supreme Court had upheld both. Civil rights groups wanted both declared illegal. The Johnson administration ultimately drew a sharp distinction between the two. The record of past litigation supported suspension of literacy tests. However, there was no comparable record of government litigation against the poll tax. Civil rights advocates ultimately had to settle for a provision requiring the Attorney General to bring suit challenging the constitutionality of the poll tax.