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Never Count on the Supreme Court to Protect Voting Rights

Alex Wong / Getty Images

Chief Justice John Roberts's decision in Shelby County v. Holder may be the most politically naïve decision of our era. Rooted in the notion that there simply isn't enough racism left in the United States to justify a full-functioning Voting Rights Act, Shelby County struck down the law's preclearance provision—which required new election rules in states with a history of voter suppression to be reviewed by federal officials before they took effect—and left voters to the mercy of a judiciary that is increasingly skeptical of voting rights. 

Yet, even if the Roberts Court were champions of the franchise, the history of voting rights in the United States reveals that a vigorous judiciary is simply not enough to protect these rights. Politicians determined to keep certain Americans from voting are too creative and too nimble for a judiciary that, by its very nature, must take months or even years to consider cases. And that's exactly what happened for decades in the South before the passage of the Voting Rights Act. 

The Jim Crow South was largely a collection of one-party states—between 1916 and 1944, for example, the Republican presidential candidate won more than 5 percent of the vote in South Carolina just one time. Thus, the winner of a Democratic primary in the South was virtually guaranteed election, and general elections were largely formalities. For this reason, segregationists could exclude African Americans from the franchise entirely by preventing them from voting in Democratic Party primaries.

In 1923, one state tried to do just that by enacting a law providing that “in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas”—though this first attempt to suppress the black vote did not end well for Texas. The Supreme Court struck down the law in a unanimous opinion proclaiming that “it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth [Amendment].”

Even Justice James Clark McReynolds, a notorious bigot, joined this opinion. 

This decision, according to the Texas legislature, created “an emergency with a need for immediate action” and the lawmakers quickly replaced the unconstitutional law with a new one providing that “every political party in this State through its State Executive Committee shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote or otherwise participate in such political party.” Not long thereafter, the state Democratic Party’s executive committee enacted a resolution providing that only “white democrats” may participate in their primary. 

Though the Court also struck this law down, in 1932, it did so over a dissent from McReynolds and three of the Court's other conservatives. The Texas law itself, McReynolds claimed, “withholds nothing from any negro.” Instead, it merely recognized the Democratic Party’s power to “prescribe qualifications for membership.” According to McReynolds it was the Party, not the state, that denied voting rights to African Americans. And the Constitution has nothing to say about discrimination by a private organization such as a political party. 

Three weeks after the Court’s second decision striking down Texas’s white-primary scheme, the state’s Democrats took matters into their own hands. Acting pursuant to no state law whatsoever, the party enacted a resolution at its convention providing that only “white citizens” may vote in a Democratic primary. This time, the justices unanimously sided with the segregationists. 

Admittedly, this decision did not last long. Less than a decade later, the Supreme Court overruled it in the landmark Smith v. Allwright (1944) decision. But it lasted just long enough to validate a strategy that animated the South’s resistance to black voting rights—if the court strikes down one voter suppression practice, just keep coming up with new ones until the courts back off.

Segregationists were nothing if not creative in their efforts to drive African Americans away from the polls. When the Supreme Court said Texas could not disenfranchise black voters directly, they tried to do so indirectly. When that failed, they let party delegates do it for them. And when this tactic failed nearly ten years later, white racists could fall back on poll taxes, or literacy tests, or any of a myriad of other devices intended to keep black voters from the polls. Black voter registration actually did rise in the years following Smith, but it rose to only 20 percent of Southern black adults by the year 1952—meaning that at least 4 out of 5 African Americans were still excluded from the polls.

Voter registrars in the South often wielded absolute authority over who could or could not register to vote. As President Lyndon B. Johnson told the nation after Selma, “the Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent.” And should they succeed in speaking to a registrar, a black voter “may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application.” 

Should they succeed in filling out their application, they may be given a literacy test. A black voter “may be asked to recite the entire Constitution, or explain the most complex provisions of State law. And even a college degree cannot be used to prove that he can read or write.” 

Nor was this the limit of the obstacles placed before African Americans seeking to vote. Some registrars would only permit voters to register in secret locations at unannounced times, relying on whites to discover where and when to present themselves through word of mouth. Or they would demand that they answer impossible questions such as “how many bubbles are in a bar of soap?” In one Louisiana parish, the registrar refused to register any black voter who couldn’t produce three white character witnesses who were personally known to the registrar.

And even if these barriers failed to keep black voters away from the polls, segregationists had yet another tactic at their disposal—terrorism. 

In rural Florida, the Klan mailed letters to African Americans warning them that if they cast a vote they would wind up “floating up and down in the river.” In Mississippi, the Jackson Daily News published the names of voting rights advocates and warned black voters to avoid Democratic primaries “to prevent unhealthy and unhappy results.” When Etoy Fletcher, a black veteran, tried to register to vote, the registrar told him that “niggers are not allowed to vote in Rankin County.” Fletcher was later jumped by four white men who drove him into the woods, beat and flogged him, then warned him that he would be killed if he tried to vote again. In Georgia, the leader of a local NAACP branch was beaten for encouraging African Americans to vote. Two white men who murdered one of those voters were acquitted by an all-white jury.

The courts were powerless to address such terrorism absent aggressive executive action. Even when the Klan’s actions were criminalized by federal law, such laws are useless unless federal agents investigate the crimes and prosecutors file the appropriate charges. “The judiciary,” as Alexander Hamilton wrote more than two centuries ago, “has no influence over either the sword or the purse.” It “may truly be said to have neither force nor will … and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” 

Segregationists, moreover, could often develop new ways of disenfranchising black voters faster than courts could strike the old ways down. When the Supreme Court struck down Texas’s white-primary system, white Democrats simply found a new way to reinstate it. When white primaries were outlawed altogether, voter registrars could pick up most of the slack. Even if a judge systematically culled a county’s voter suppression tactics, striking down literacy tests and poll taxes and secret voter registration offices, the county could simply enact new policies intended to achieve the same goals.

Nor could courts act on their own. The Constitution does not permit federal courts to take any action whatsoever unless a plaintiff who has experienced a legal injury sues whoever is responsible for that injury. In the Jim Crow South, this meant that courts could not do anything to advance voting rights until a black voter voluntarily agreed to file a lawsuit—an action that could immediately make that voter a target of Klan intimidation or worse.

In the end, however, a particular visible instance of this violence—and the legislation which that violence inspired—did far more to advance equality in the South than the courts could have ever accomplished.

The police-led terrorism in Selma that targeted John Lewis and his fellow marchers in 1965 occurred more than 20 years after the Court struck down the white-primary system, and more than a decade after it proclaimed school segregation unconstitutional in Brown v. Board of Education. Moreover, the events on the Edmund Pettus Bridge were nothing more than the latest in an unbroken string of terrorist attacks on black people that stretched all the way back to Colfax, and before then to the first time a master raised his whip against an African slave. 

It was easy for many Americans to ignore this violence when it was largely an abstraction, a sad history people read about in books or in newspapers, if at all. But the events in Selma were made all too real when millions of Americans turned on the evening news to see peaceful protesters being gassed, clubbed, and trampled by white segregationists on horseback. ABC broke into its broadcast of Judgment at Nuremberg, a film that incorporates actual footage of Nazi atrocities, to present a breaking news broadcast detailing the events in Selma. When their television screens switched from scenes from Nazi Germany to much more recent footage from Alabama, many viewers believed they were still witnessing scenes from the Third Reich.

The plot of Judgment at Nuremberg focuses on the postwar trial of four German judges who acquiesced in the murder of innocents—one of whom is the internationally respected legal scholar Ernst Janning. As the film approaches its climax, a repentant Janning explains how he could send an innocent Jew to his death based on trumped up allegations that the man had sex with an Aryan woman in violation of Nazi Germany’s law: 

it was the old, old story of the sacrificial lamb. . . . What difference does it make if a few racial minorities lose their rights? It is only a passing phase. It is only a stage we are going through. It will be discarded sooner or later. Hitler himself will be discarded—sooner or later. 

At the conclusion of his testimony, Janning denounces his three co-defendants—labeling one of them a “decayed, corrupt bigot, obsessed by the evil within himself”—and then he denounces himself as “worse than any of them because he knew what they were, and he went along with them.” 

Janning might as well have been speaking directly to the millions of Americans who knew about the South’s reign of terror but had done nothing to stop it. At the very moment that ABC’s viewers were asking how so many of the German people could have stood silently as Hitler rose to power, they were confronted with an opportunity to demonstrate that they would have acted differently. 

Demonstrations erupted throughout the country showing solidarity with the men and women beaten in Selma. Hundreds of clergy traveled to Alabama to express their support for civil rights. Seventy million Americans watched a week later when President Johnson announced his response to a joint session of Congress. 

Johnson spoke to a nation enjoying one of the most robust periods of economic growth in its history—just a few months earlier, he had trounced Goldwater in the 1964 presidential election, bolstered by an eye-popping 5.8 percent annual growth rate in the nation’s gross domestic product. America emerged from World War II as the wealthiest and most powerful nation in the world. The New Deal rescued countless seniors from the poorhouse. It invigorated long-neglected regions of the nation, and it gave millions of Americans the opportunity to own a home. The children of the Depression knew a level of affluence that would have been unimaginable to their parents.

And yet, Johnson told the nation, all these accomplishments meant nothing so long as American apartheid still exists. “Should we defeat every enemy, should we double our wealth and conquer the stars, and still be unequal” to the problem of black inequality, “then we will have failed as a people and as a nation.” 

If Southern officials would meet every attempt to enfranchise African Americans with new, more creative obstacles standing between black voters and the polls, then Johnson’s solution was to tear down those obstacles before they were even built. The backbone of what became the Voting Rights Act of 1965 was a provision requiring states and localities with a history of excluding voters on the basis of race to “preclear” any new voting rules with federal officials in Washington, D.C. Under this provision, any new voting rule enacted in the heart of Jim Crow would be suspended immediately, and would not go into effect until a judge or the Department of Justice reviewed it to ensure that it would not disenfranchise people of color. 

The Voting Rights Act eviscerated the South’s ability to drive African Americans away from the polls. On the day Johnson signed this act into law, Mississippi’s black voter registration rate hovered below 7 percent. Only two years later, nearly 60 percent of eligible African Americans were registered to vote in Mississippi. Just as the Civil Rights Act achieved what Brown v. Board of Education could not in the area of public school segregation, the Voting Rights Act flung open the doors of American democracy that judges could only pound on in frustration.

The single most important thing the Supreme Court ever did for civil rights was not Brown. It was the Court’s decision to do absolutely nothing when first confronted with the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Not long after Johnson signed the Civil Rights Act into law, a motel in Atlanta and a barbecue restaurant in Birmingham filed a pair of lawsuits objecting to it. Nevertheless, the justices unanimously upheld the law. Less than two years later, they rejected a similar challenge to the Voting Rights Act. 

These three cases were the most important civil rights decisions of their era. By simply getting out of the way and allowing the federal government to do its job, the Warren Court did more to tear down Jim Crow than it could ever have accomplished on its own.