6
Stony the road we trod, Bitter the chastening rod,
Felt in the days when hope unborn had died.
—James Weldon Johnson, “Lift Every Voice and Sing” (1899)
There was a sacred price paid to achieve the Voting Rights Act of 1965. “Few events in American political life have had as profound or as far-reaching consequences as has passage of the Voting Rights Act of 1965.”1 The NAACP and the Justice Department of the United States would bring about sweeping changes only because of the passage of the Voting Rights Act. In 1962 the NAACP LDF had twenty-nine cases before the Supreme Court, more than any other law firm in the country except the Solicitor General’s Office of the federal government.2
The NAACP LDF assisted local NAACP attorneys C. B. King and D. L. Hollowell in their suit against the White elected officials of Albany, Georgia, who had maintained segregated voting locations, in Anderson v. Courson.3 Race was a factor in every aspect of voting. In Anderson v. Martin (1964), the NAACP brought a lawsuit successfully challenging a Louisiana law that required ballots to specify the race of the candidates running for office. Louisiana defended its measure as necessary information for the electorate; moreover, “the labeling applie[d] equally to Negro and white.” However, the history of racism in America would undermine the chances for Black, as opposed to White, candidates.
The NAACP LDF persuaded a unanimous court in Anderson v. Martin that it was a violation of the Fourteenth Amendment rights of Dupuy H. Anderson to require a candidate’s race to be on the campaign ballot.4 Jack Greenberg, LDF director, argued that the only reason to include race on a ballot was for discriminatory purposes, “so that people can react to it.”5 The Supreme Court struck down Louisiana’s statute as a violation of the equal protection clause.
In Virginia, voting records and property tax assessments were segregated by race. E. Leslie Hamm sued. In Hamm v. Virginia State Board of Elections (1964), the Supreme Court affirmed the trial court’s decision to desegregate this basic information. The court said, “Separation of white and colored on the poll tax, residence-certificate and registration lists as well as on the assessment rolls renders these provisions invalid under the equal protection clause of the Fourteenth amendment.” Jack Greenberg argued the case for the plaintiffs.
However, the tactic of states’ demanding membership lists and accusing the NAACP of hiding communist activity had taken a toll on the organization. Membership in the NAACP was down. Finally, in 1964, the Supreme Court ruled in favor of the NAACP in its fourth appeal in the 1956 case NAACP v. Alabama. The organization did not have to reveal its membership list, and it could continue doing business in the South without fear of White elected officials intent on reprisal against either the organization or its membership.6
As Black politicians rose to power, buoyed by the Voting Rights Act of 1965, the NAACP and NAACP LDF began their next fifty years of fighting to enforce legislation gained by tireless advocacy and the blood of the slaughtered.
Only two years earlier, Rev. Dr. Martin Luther King Jr. had stood before the largest gathering of protesters in American history. On August 28, 1963, the March on Washington for Jobs and Freedom brought together more than 200,000 Americans, protesting for racial justice, voting rights, and fairness in front of the Lincoln Memorial in Washington, D.C.7 The NAACP, along with the SCLC, SNCC, National Urban League, National Negro Congress, National Association of Colored Women, and many other national civil rights organizations, played a role in this historic march.
The NAACP and the NAACP LDF were now separate organizations with a common mission: to advance the rights of African Americans. The Supreme Court of Chief Justice Earl Warren, who had presided over the renowned Brown v. Board of Education case, was the target of unprecedented attacks by brazen White supremacists still hanging on to tyrannous authority across most of America. But it was in the South that the voting rights war was most evident.
From 1963 to 1965 a force grew that was capable of breaking the century-long grip of White supremacy known as Jim Crow on voting rights. Those two years saw human tragedy and legal triumph. On June 12, 1963, Medgar Evers, voting rights leader, was assassinated in front of his family in Jackson, Mississippi. On that sweltering August day in 1963, Dr. Martin Luther King Jr. told the world about his dream at the March on Washington, inspiring millions to push their government to do more for civil rights.
Then, on September 15, 1963, four Black girls were killed in the bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama, by Klansmen retaliating against the nonviolent civil rights protests that had made national news there. Cynthia Wesley, Carole Robertson, and Addie Mae Collins, all fourteen years old, and Denise McNair, age eleven, were buried under stone and rubble in a shockingly depraved act of cowardice that brought even conservative Whites in Congress and across the nation to the side of Dr. King’s nonviolent movement for social change.
In 1964, the passage of the Twenty-fourth Amendment, which abolished payment of poll taxes to vote in federal elections, was ratified. But the carnage continued as Blacks in the South were threatened with lynching, beaten, and run out of their homes for paying the tax or attempting to register to vote, by the Ku Klux Klan and members of the White Citizens Council. Literacy tests remained an obstacle, with registrars asking Blacks seeking to register to vote such test questions as the number of bubbles in a bar of soap or to recite the preamble of the Constitution from memory. Mississippi required Blacks to complete a twenty-one-page form and give their interpretation of one of 285 sections of the state’s constitution.
On the night of June 21, 1964, three members of CORE who had come to Mississippi to register Blacks to vote went missing. College students James Chaney, Andrew Goodman, and Michael Schwerner were kidnapped and murdered in Mississippi by Klansmen. The FBI’s search for their bodies took weeks and captured national attention. National outrage followed the discovery of the decomposed bodies of these voting rights martyrs. Goodman and Schwerner had been shot at point blank range, while Chaney had been beaten mercilessly and shot three times.
That Freedom Summer of 1964, directed by the Council of Federated Organizations, attracted thousands of students, Blacks and Whites, from the North to the South.8 They and local NAACP members registered Black voters, set up freedom schools to assist in passing literacy tests, and organized Black communities to fight for their constitutional rights. The NAACP LDF set up an office in Jackson, Mississippi, representing hundreds of Freedom Summer workers who were arrested for protesting segregation, registering Black voters, engaging in civil disobedience through sit-ins, and resisting harassment by local sheriffs intent on maintaining White supremacy.9
Events of the Freedom Summer revealed the lethal violence that accompanied the exercise of the rights won by the NAACP in the Supreme Court. Interracial groups of CORE members traveling by bus were brutally attacked in Montgomery, Alabama. More than a thousand activists were arrested, eighty Freedom Summer workers were beaten, and thirty-seven churches were bombed or burned, along with thirty homes and businesses.10 Yet instead of being intimidated, hundreds more volunteers arrived in the Deep South to demand change that could not be brought about by litigation alone.
the Civil Rights Act
The Civil Rights Act of 1964 was a product of political negotiation by the NAACP and pressure from the SCLC and representatives of many civil rights organizations, who met with the Johnson administration. Any change to the oppressive political conditions under which Black Americans lived must be national. Piecemeal litigation, thousands engaged in protests, and local legislative changes were not enough. The writer and civil rights advocate James Baldwin, accompanied by a delegation of artists and activists, had met with Attorney General Robert Kennedy in May 1963 during the Kennedy administration. After President Kennedy’s assassination, Martin Luther King Jr. met with President Lyndon Johnson.
Decades earlier, the NAACP had faced bitter disappointment twice over its failure to pass antilynching legislation. This time, so close to passage of the 1964 Civil Rights Act, the NAACP left nothing to chance, relying on its Washington bureau chief, Clarence Mitchell Jr., known as the 101st Senator and a strategic genius at lobbying Congress in the interest of Black communities. Historian Denton Watson provides an insider’s perspective on Mitchell in Lion in the Lobby. Although both presidents at the time these bills were proposed were southerners, the NAACP’s success with the civil rights legislation in the 1960s was probably a product of President Johnson’s poverty in contrast with Wilson’s elitism, and the skills learned from anti-lynching efforts decades earlier.
The NAACP could do little to reach private discrimination in public accommodations prior to passage of the Civil Rights Act of 1964. In the Civil Rights Cases of 1883, the Supreme Court had struck down federal protections under the Civil Rights Act of 1875, ruling that Congress could not protect Black people against private discrimination. That Supreme Court decision allowed prejudice, racial hatred, and segregation to be practiced in housing, public accommodations, and private businesses for nearly a century. As the NAACP LDF and the NAACP worked on legal cases together, Clarence Mitchell, always a gentleman with an intensity of purpose, undertook a major lobbying effort regarding both the Civil Rights Act and the proposed federal voting rights legislation.
Litigation, legislation, and protest had been the strategy of the NAACP under its first president, Moorfield Storey. Its effectiveness was proven again by the most sweeping civil rights legislation passed since the Civil War era. But it did not come without bloodshed. Once again, violence played a role in spurring on Congress to address the abuse of rights taking place in the South. Headlines kept civil rights in the news despite the looming conflict in Vietnam.
If Black Americans had had civil rights, there would have been no need for Chaney, Goodman, Schwerner and thousands of young Freedom Summer volunteers to go to Mississippi.
THE DETROIT NEWS
FBI Jails Sheriff, 15 in 3 Rights Killings
Mississippi Refuses to Help in Arrests.11
The murders of Chaney, Goodman, and Schwerner on June 21, 1964, prompted even foot-dragging legislators to pass the Civil Rights Act of 1964.12 The act was signed into law on July 2, 1964. President Lyndon B. Johnson said of the Civil Rights Act:
We believe that all men are entitled to the blessings of liberty. Yet millions are being deprived of those blessings—not because of their own failures, but because of the color of their skin.
The reasons are deeply imbedded in history and tradition and the nature of man. We can understand—without rancor or hatred—how this all happened.
But it cannot continue. Our Constitution, the foundation of our Republic, forbids it. The principles of our freedom forbid it. Morality forbids it. And the law I will sign tonight forbids it.
That law is the product of months of the most careful debate and discussion. It was proposed more than one year ago by our late and beloved President John F. Kennedy. It received the bipartisan support of more than two-thirds of the Members of both the House and the Senate. An overwhelming majority of Republicans as well as Democrats voted for it.
It has received the thoughtful support of tens of thousands of civic and religious leaders in all parts of this Nation. And it is supported by the great majority of the American people.13
It was the most sweeping civil rights legislation since Reconstruction. Finally, the federal government had established a legal right to bring a lawsuit against private acts of discrimination. The NAACP now had the weapon it needed to attack White supremacy practiced by individuals in places large and small.
In December 1964, Rev. Dr. Martin Luther King Jr. traveled to Oslo, Norway. The world watched as he received the Nobel Peace Prize. Dr. King said:
Your Majesty, Your Royal Highness, Mr. President, Excellencies, Ladies and Gentlemen:
I accept the Nobel Prize for Peace at a moment when 22 million Negroes of the United States of America are engaged in a creative battle to end the long night of racial injustice. I accept this award on behalf of a civil rights movement which is moving with determination and a majestic scorn for risk and danger to establish a reign of freedom and a rule of justice. I am mindful that only yesterday in Birmingham, Alabama, our children, crying out for brotherhood, were answered with fire hoses, snarling dogs and even death. I am mindful that only yesterday in Philadelphia, Mississippi, young people seeking to secure the right to vote were brutalized and murdered.14
But none of this alone was enough to pass a voting rights act.
“bloody sunday”
Across the South, Blacks could not vote against the sheriff who beat them or the local judge who would not fairly adjudicate their cases or the school boards that still segregated their children a decade after the Brown v. Board of Education decision ruled that segregation in public schools was inherently unequal and a violation of the Fourteenth Amendment. Martin Luther King Jr. met with President Johnson about the proposed Selma to Montgomery march and the need for voting rights legislation.15 President Johnson needed Dr. King to show Congress why voting rights legislation was necessary. The showdown on voting rights would take place in the little farming town of Selma, Alabama, located in Dallas County, fifty miles outside Montgomery on the banks of the Alabama River.
It was dangerous. Nearby Lowndes County was known as “Bloody Lowndes” because of the brutal tactics of White supremacists there and its bloodstained jail cells. Yet Black farmers and business owners had risen up against exclusion by the White-only Democratic Party to create their own political party, the Black Panther Party.16 On the evening of February 26, 1965, twenty-six-year-old Jimmie Lee Jackson became a martyr, shot dead by an Alabama state trooper who tracked him down after Alabama troopers descended on a peaceful SNCC-led protest march in Selma and attacked the protesters.17
In March 1965, the SCLC, NAACP members, and the SNCC planned to lead a peaceful march protesting the denial of their right to protest for voting rights. Governor George Wallace vowed to stop any such march, citing safety factors. The marchers assembled at Brown Chapel African Methodist Episcopal Church, a short walk from the Edmund Pettus Bridge, on the morning of March 7. Brown Church was the meeting place for SCLC members. This was in defiance of an antimeeting injunction meant to stop civil rights groups from assembling. However, just as the enslaved used religious services to plan uprisings and escapes, Sunday services at Brown Chapel allowed the demonstrators to meet without defying the injunction.
Then, after services, the group of six hundred walked four blocks over to the Edmund Pettus Bridge. They were en route to the state’s capital, Montgomery. The afternoon was overcast. At the foot of the opposing side of the bridge awaited a phalanx of troopers wearing gas masks. On the other side of the bridge was Dallas County, known for its ferocious racism and troopers led by County Sheriff Jim Clark and Commanding Officer John Cloud. Clark was notorious in Dallas County for incidents such as the time a peaceful group of Black men attempted to register to vote at the Selma courthouse. Dr. King’s close friend, Rev. Cordy Tindall “C.T.” Vivian, led the men. Sheriff Clark blocked the courthouse door, pushing the men away and hitting Rev. Vivian so hard Clark broke his own hand. Vivian would later write in his book Black Power and the American Myth, “Blacks often found they had won the privilege of voting at the expense of their right to live.”18
On March 7, Clark had hurriedly deputized nearly one hundred local White males, arming them with nightsticks and tear gas to use against unarmed Black elders, women, and men who only desired to vote. Because it was a Sunday, there was very little traffic. Reverend Hosea Williams of SCLC and student activist John Lewis of the SNCC were on the front lines of what became a one-sided bloodbath. America watched in horror as Lewis and other peaceful marchers, women like Amelia Boynton, and the elderly were beaten unconscious by troopers encouraged by segregationist governor Wallace. Newspaper headlines and television cameras captured the unprovoked attack on unarmed Black protesters, wearing their blood-soaked church clothes. The assault galvanized a nation.
The brutal attack became known as “Bloody Sunday.” Reporters and a television camera captured Alabama’s all-White state troopers, some on horseback, wildly attacking Black men, women, and children with nightsticks and tear gas on the bridge, named for Edmund Pettus, a Democratic segregationist, Grand Dragon of the Ku Klux Klan, and confederate soldier; it was a fitting voting rights battleground.
The Washington Post
Tear Gas, Clubs, Halt 600 in Selma March
State Troopers Beat
and Injure Many Negroes
Monday, March 8, 196519
President Lyndon Johnson had watched on television in horror as armed men attacked the unarmed demonstrators while they ran or lay helpless on the ground. Johnson issued a statement promising to demand legislation protecting the voting rights of African Americans.
Due to a scheduling miscommunication, Rev. Martin Luther King Jr. was absent that day. But King led the protesters on a second attempt to cross the bridge and march to Montgomery on Tuesday, March 9. Supporters arrived from around the country. This time thousands of demonstrators of all backgrounds, led by Dr. King, approached the top of the bridge. They faced even more Alabama state troopers. But King stopped, knelt to pray, and then turned around, leading the stunned protesters away.
Meanwhile, the NAACP LDF was representing the group in federal court. Judge Frank Johnson, in Montgomery, had ordered a hearing on the events in Selma. Jack Greenberg of the NAACP LDF and local NAACP cooperating attorney Fred Gray, of Tuskegee, advised Dr. King not to lead a protest march across the bridge until Judge Johnson allowed it. To do otherwise would violate his court order. So King turned around without crossing the bridge. That day became known as “Turnaround Tuesday.”
King’s followers were confused, and members of the SNCC felt betrayed by this abbreviated march. However, at the federal hearing Greenberg and Gray presented a solid case before Judge Johnson that resulted in an order allowing the march to Montgomery.
On March 9, White supremacists fatally beat Rev. James Reeb, a White Unitarian minister from Boston who had participated in the second march. “His murder underscored the willingness of ordinary whites to maintain the established order.”20 Local Black demonstrators could not help feeling bitter when national news covered the beating death of Rev. Reeb but was silent when young Jimmy Jackson was gunned down by troopers inside a restaurant following a peaceful march.
Dr. King led a third march on March 21, 1965, arriving in Montgomery on March 25, this time with over twenty-five thousand marchers having joined the demonstration for voting rights. This third march was protected by the National Guard and a federal court order barring any interference by state troopers. This simple request to vote in a country that called itself a “beacon of democracy” for the world to emulate would be denied again. After thousands marched to Montgomery, Viola Liuzzo, a White volunteer from Detroit, was murdered by Klansmen while driving a Black voting rights volunteer to the airport in Montgomery, Alabama.
A hundred years after President Abraham Lincoln signed the Emancipation Proclamation, much had improved since Ovington and Villard made that “Lincoln Day Call” that would result in the founding of the National Association for the Advancement of Colored People. However, progress was still counted in terms of traumatic events needed to spur legislators into action. Deadly reprisals followed each step. After “Bloody Sunday,” America was nearly ready for a voting rights act.
The legacy of the Supreme Court’s decisions in Dred Scott and Plessy had met its match in Smith v. Allwright and Brown v. Board of Education. Protesters testing their constitutional rights stood up to segregationists, who would not accept that Blacks had rights that they need respect. But passage of the extensive piece of federal legislation contemplated by President Johnson would require an extraordinary confluence of horrific events, liberal White Democrats and Republicans, shamed Dixiecrats, student protests, presidential pressure, and watchful lobbying by the NAACP.21
When Rev. Dr. Martin Luther King Jr. arrived in Selma, Alabama, he knew he was entering a war zone. Blacks were primed for activism, from the tent cities, to the Black Panther Party, to Black candidates who ran for office even when they knew there was little chance of winning because most Blacks were not allowed to vote. But it was the violent attacks by state troopers on the Edmund Pettus Bridge that galvanized a nation, giving President Lyndon B. Johnson the political might to pass a voting rights act.
Johnson and the voting rights act
On March 15, before the third attempt to march in Selma, President Johnson presented his demands for a voting rights law to both houses of Congress. The man from Texas who had stalled civil rights legislation as a senator was ready to confront his southern past and his racist peers.
Historian Robert A. Caro, the renowned expert on Lyndon Johnson, described the man’s career, from his rise in the Senate, to a decline in power as vice president, to the assassination of John Kennedy, which handed him the White House.22 There is little evidence in this progression to support the idea that this man would become the key figure in the making of civil rights law. In particular, there is no inkling that this southern politician would become responsible for the most extensive voting rights legislation since Congress passed the Fifteenth Amendment.
As a US senator, Johnson had stalled the civil rights legislation of 1957 and stripped away its protections. Now he endeavored to go down in history as a champion of racial justice and became responsible for the passage of the greatest civil rights legislation of the twentieth century. He used his knowledge of the Senate rules to keep the Civil Rights Act from defeat in 1964 when a southern Democrat added “sex” to the language of the 1964 act, which outlawed discrimination based on race, color, religion, or national origin.23 Gender equality was as controversial as, or even more so than, racial equality. Despite Howard W. Smith’s (D-VA) change, the Civil Rights Act was signed into law with the added protection against sex discrimination.
Civil rights legislation was passed faster than perhaps even the NAACP thought possible. Johnson had been renowned for his ability to shepherd through or completely halt any bill. President Johnson was the last Speaker of the House to rise to the office of president. He wanted a place in history, and civil rights could get it for him. Johnson chose to place all of his political capital behind passage of legislation created to assist the poor and marginalized.
When his administration began, Johnson had declared a war on poverty. On January 8, 1964, in his State of the Union Address, President Johnson warned a nation still grieving over the assassination of John Kennedy in November 1963 that he planned to take bold steps toward social reform. He declared an unconditional “War on Poverty.” Johnson also told millions of listeners in the North and South that segregation must come to an end.
Johnson was born poor in 1908, during rigid segregation, and struggled through the Great Depression. He picked cotton under a blazing sun by day as a child. He knew that at night Blacks and Mexicans were lynched. He witnessed firsthand the misery of poverty and racism. Johnson was an expert on disenfranchisement of Blacks. He rose through the political ranks in Texas in the all-White Democratic primary system and the private club created to prevent Blacks from voting when Texas’s all-White primary was struck down.
Yet, Johnson asked Congress for better schools, health care, homes, training, and job opportunities to “help more Americans, especially young Americans, to escape from squalor.”24 He sought programs to assist the elderly and the rural poor. Congress responded with the Economic Opportunity Act (EOA) of 1964 and the Civil Rights Act of 1964. The EOA created programs to improve housing, education, job training, and Social Security. President Johnson’s War on Poverty continued in the footsteps of President Franklin Roosevelt’s New Deal of the 1930s. Many southerners hated him for it. Like Roosevelt, he was viewed as a traitor to his kind.
President Johnson asked to increase the minimum wage and unemployment insurance. He knew there were similarities between the poverty of Whites and Blacks. Both experienced miserable lives in destitution, bereft of opportunity. His War on Poverty began in Appalachia, an area of 205,000 square miles stretching from Mississippi to upstate New York, in which millions of poverty-stricken White Americans lived in rural communities. One in three persons (mostly White) in Appalachia lived in poverty.
An American Problem
On August 6, 1965, President Johnson signed the Voting Rights Act into law. That night Johnson spoke to the American people:
Mr. Speaker, Mr. President, Members of the Congress:
I speak tonight for the dignity of man and the destiny of democracy.
I urge every member of both parties, Americans of all religions and of all colors, from every section of this country, to join me in that cause.
At times history and fate meet at a single time in a single place to shape a turning point in man’s unending search for freedom. So it was at Lexington and Concord. So it was a century ago at Appomattox. So it was last week in Selma, Alabama.
There, long-suffering men and women peacefully protested the denial of their rights as Americans. Many were brutally assaulted. One good man, a man of God, was killed.
There is no cause for pride in what has happened in Selma. There is no cause for self-satisfaction in the long denial of equal rights of millions of Americans. But there is cause for hope and for faith in our democracy in what is happening here tonight.
For the cries of pain and the hymns and protests of oppressed people have summoned into convocation all the majesty of this great Government—the Government of the greatest Nation on earth.
Our mission is at once the oldest and the most basic of this country: to right wrong, to do justice, to serve man.
In our time we have come to live with moments of great crisis. Our lives have been marked with debate about great issues; issues of war and peace, issues of prosperity and depression. But rarely in any time does an issue lay bare the secret heart of America itself. Rarely are we met with a challenge, not to our growth or abundance, our welfare or our security, but rather to the values and the purposes and the meaning of our beloved Nation.
The issue of equal rights for American Negroes is such an issue. And should we defeat every enemy, should we double our wealth and conquer the stars, and still be unequal to this issue, then we will have failed as a people and as a nation.
For with a country as with a person, “What is a man profited, if he shall gain the whole world, and lose his own soul?”
There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem. And we are met here tonight as Americans—not as Democrats or Republicans—we are met here as Americans to solve that problem.25
The effect of the new law was immediate. Prior to the Voting Rights Act,
despite the earnest efforts of the Justice Department and of many federal judges, these new laws have done little to cure the problem of voting discrimination. According to estimates by the Attorney General during hearings on the Act, registration of voting-age Negroes in Alabama rose only from 14.2% to 19.4% between 1958 and 1964; in Louisiana it barely inched ahead from 31.7% to 31.8% between 1956 and 1965; and in Mississippi it increased only from 4.4% to 6.4% between 1954 and 1964. In each instance, registration of voting-age whites ran roughly 50 percentage points or more ahead of Negro registration.26
The Justice Department of the United States defined the protective mechanisms within the Voting Rights of 1965. Section 2 of the act, which closely followed the language of the Fifteenth Amendment, applied to literacy tests a nationwide prohibition against the denial or abridgment of the right to vote.27 Section 2 states:
No voting qualification or pre-requisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.
Among its other provisions, the act contained special enforcement provisions targeted at those areas of the country where Congress believed the potential for discrimination was the greatest.28
Section 5 of the act requires preclearance of districting plans affecting racial minorities. The act covered specific states and counties that had a history of discriminating against African Americans. Both Alabama and Texas were required to seek federal government approval prior to enacting laws that could affect Black voter participation. This requirement was later expanded to include all people of color and several other jurisdictions.
Under section 5, jurisdictions covered by these special provisions could not implement any change affecting voting until the attorney general or the US District Court for the District of Columbia determined that the change did not have a discriminatory purpose and would not have a discriminatory effect.29 In addition, the attorney general could designate a county covered by these special provisions for the appointment of a federal examiner to review the qualifications of persons who wanted to register to vote. Furthermore, in those counties where a federal examiner was serving, the attorney general could request that federal observers monitor activities within the county’s polling places.30
More Battles
The Voting Rights Act had not included a provision prohibiting poll taxes, but had directed the attorney general to challenge their use.31 The Voting Rights Act was challenged in 1966 by South Carolina (and joined in the case by Mississippi, Alabama, Virginia, Georgia, and Louisiana). But the Supreme Court stated in South Carolina v. Katzenbach:
Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.32
The Voting Rights Act removed the states’ authority to use literacy tests and poll taxes in local elections. South Carolina argued that Congress had overreached its constitutional authority when it passed the Voting Rights Act, in violation of states’ rights. But the Supreme Court found:
The South Carolina Constitutional Convention of 1895 was a leader in the widespread movement to disenfranchise Negroes. Key, Southern Politics, 537-539. Senator Ben Tillman frankly explained to the state delegates the aim of the new literacy test: “The only thing we can do as patriots and as statesmen is to take from [the ‘ignorant blacks’] every ballot that we can under the laws of our national government.” He was equally candid about the exemption from the literacy test for persons who could “understand” and “explain” a section of the state constitution: “There is no particle of fraud or illegality in it. It is just simply showing partiality, perhaps, [laughter,] or discriminating.”33
The Supreme Court upheld the Voting Rights Act.
In Katzenbach v. Morgan, also in 1966, New York State challenged a section of the Voting Rights Act that allowed Puerto Ricans to register to vote without taking the state’s literacy test, which was in English, if they had at least a sixth-grade education.34 Norman Redlich of the NAACP LDF argued the case at the Supreme Court. The court ruled in favor of the Voting Rights Act and found that section 4(e) did not exceed the powers of Congress. The act was intended to allow more people to vote.
Poll taxes had been outlawed in federal elections by the Twenty-fourth Amendment. But they remained in effect in state elections. States could force voters to pay poll taxes in order to vote in local elections for offices such as commissioner, judge, school board, sheriff, and mayor. These were the elected offices that had for a century exercised direct control over the quality of life of Black Americans. Voting in these local elections was essential to Black self-determination.
In 1966 the NAACP LDF represented NAACP member Annie E. Harper in her lawsuit challenging poll taxes required in Virginia local elections. In Norfolk, Virginia, Evelyn Butts brought a similar poll tax case, represented by attorney Joseph Jordan, forty-one, a Black veteran wounded in World War II. Thurgood Marshall argued the case for the government as solicitor general. Harper v. Virginia Board of Elections challenged Virginia’s poll tax law, which required a payment of $1.20, as a violation of the equal protection clause of the Fourteenth Amendment.35
The Supreme Court agreed. Justice William O. Douglas wrote: “We conclude that a state violated the equal protection clause of the 14th Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.”36 White supremacists had created poll taxes in the 1800s to disenfranchise the Black vote. In 1966 the court ruled that local elections, like federal elections, were to be free of poll taxes. With this decision, the Supreme Court finally overturned Breedlove v. Suttles, the 1937 case that had upheld state poll taxes.
Finally, cases could be brought that struck at the heart of the Mississippi Plans of 1890 and 1901. In Louisiana v. United States, the NAACP, working with the US attorney general’s office, brought a lawsuit against the states of Mississippi and Louisiana challenging their use of literacy tests and other discriminatory conduct.
The Supreme Court found that the Louisiana legislature had created a “Segregation Committee.” The court stated:
That committee cooperated with Citizens Councils to instruct registrars to promote white political control and to begin wholesale purges of Negroes from the voting rolls. At least 21 parishes in the mid-1950’s began applying the interpretation test, to which was added in 1960 a comprehension requirement, applicable to all persons, which the State Registration Board ordered rigidly enforced. The District Court, in view of the virtually unlimited discretion given voting registrars by the Louisiana laws and because the 21 parish registrars had used the interpretation test to keep Negroes from voting, held that test, on its face and as applied, invalid under the Fourteenth and Fifteenth Amendments and 42 U.S.C. § 1971(a), and enjoined its future use in the State.37
In Mississippi, the court’s decision revealed the core of segregationist policy that had denied Black Americans their constitutionally sacred right to vote for generations. The court found that the US attorney general’s office had the right to sue a state for denying the vote to Black citizens from 1890, when Mississippi changed its constitution to purposely deprive Blacks of their rights.
Justice Hugo Black, a former member of the Ku Klux Klan turned racial progressive, wrote the opinion against Louisiana:
Charging that appellees, the State of Mississippi, the Election Commissioners, and six voting registrars of that State were destroying the right of Mississippi Negroes to vote, the United States brought this action for relief under 42 U.S.C. §1971(d) and other provisions. The complaint alleged a longstanding, carefully executed plan to keep Negroes in Mississippi from voting. It stated that, in 1890, in order to restrict the Negro franchise, a new constitution was adopted, § 244 of which established as a voting prerequisite reading, understanding, or giving a reasonable interpretation of a section of the state constitution; that this provision, when coupled with Negro ineligibility until about 1952 to vote in the decisive Democratic primary election, within nine years reduced the percentage of qualified voters who were Negroes from over 50% to about 9%, and, by 1954, only about 5% of Negroes of voting age were registered; that, in 1954, § 244 was amended to make all of its previously alternative requirements apply and to make an applicant additionally demonstrate “a reasonable understanding of the duties and obligations of citizenship,” a requirement which registrars allegedly have applied in a racially discriminatory manner; that, in 1960, two discriminatory voting statutes were adopted, one imposing a “good moral character” qualification, and the other (contrary to federal law) permitting destruction of some voting records; and that, in 1962, a “package” of legislation was enacted further to impede Negro voting registration. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted, held that the Election Commissioners were not proper parties, that the registrars could not be sued jointly, and that venue was improper as to some.38
Dr. Martin Luther King Jr. had said that “the arc of the moral universe is long, but it bends towards justice.”39
internal Battles
Finally, the Mississippi Plan had fallen. America was changing. The NAACP was changing also. So, too, was the Supreme Court. After that Freedom Summer of violence, NAACP LDF attorney Constance Baker-Motley returned to New York City and entered politics. President Johnson nominated her to be the first Black female federal judge. Thurgood Marshall was destined to ascend to the Supreme Court bench. The role of the NAACP was changing. The voting rights struggle became a cold war, with state legislators creating elaborate schemes to dilute Black voting strength through redistricting ploys and election machinations.
All wars have inner conflicts and disputes between allies. Tensions and distrust mounted between the NAACP and NAACP LDF director Jack Greenberg. Thurgood Marshall wanted a judgeship on the Supreme Court. President Johnson had started Marshall on that path, beginning with a position on the Second Circuit Court of Appeals and the position of solicitor general, arguing on behalf of the federal government he had sued so frequently in the past. Decades of the unstable life of a civil rights litigator would be rewarded with the stability of a government position that offered security for his family, rest, and eventually retirement.
True to the promise he had made in 1961, President Johnson nominated Marshall to the Second Circuit Court of Appeals and as solicitor general. Robert Carter, a veteran of World War II and many civil rights battles, and Jack Greenberg are both in that iconic photo, standing next to Thurgood Marshall on the steps of the US Supreme Court after the Brown decision. Carter had been passed over as director of the NAACP in favor of Jack Greenberg.
Greenberg was a legal strategist who argued before the Supreme Court forty times. Also a veteran of World War II, he took on civil rights cases like a soldier in battle. He even referred to it as “trench warfare.” Carter was soft spoken but analytical and could be described as a disciplined activist. Both Carter and Greenberg worked beside Marshall from the early days of Brown v. Board, Greenberg leading the office while Marshall went down South to litigate cases. But Carter was second in charge under Marshall.
Greenberg knew the director’s job was his. Marshall informed Carter of his selection of Greenberg in a letter that Carter was instructed to open only after reaching his vacation destination in Italy. Carter was devastated. He had assumed he would become director-counsel. But a falling out between Marshall and Carter may have caused Marshall to select Greenberg. Both men were brilliant, hard working, and dedicated to civil rights. There is a long history of collaboration between African Americans and Jewish Americans on civil rights issues. Later, Kivie Kaplan would become president of the NAACP from 1966–1975.
The NAACP had originally been founded by White progressives. But now for many members, having a White leader of a Black civil rights organization ran counter to the twentieth-century philosophy of self-determination that was being expressed by women, people of color, and other formerly marginalized groups. With the loss of a common foe, divisions widened between civil rights organizations that had once worked together closely.
Thurgood Marshall, the first Black Supreme Court justice, was a symbol of great pride for the NAACP and the Black community. Over time, Marshall, the original Mr. NAACP, found himself an icon unable to make a difference. He had grown used to having an impact as a civil rights attorney in charge of the most recognized organization for social justice in America. As one of nine justices, his vote rarely changed the outcome of a ruling. As conservative presidents Richard Nixon, Gerald Ford, and Ronald Reagan nominated conservative justices, Marshall found himself in the minority, or alone, writing fiery dissents even in civil rights cases.
Sick and Tired
By the late 1960s the Black community was bitterly divided. Many no longer embraced nonviolence. Blacks were impatient for the change that should have come with voting rights. Too many lives had been lost in the struggle over the ballot. Blacks had the vote. Blacks were elected to Congress. It had all been promised in the Constitution of 1789. But there was little to show for decades of debilitating sacrifice and loss.
Reverend Dr. Martin Luther King Jr. was assassinated on April 4, 1968. Back in Montgomery, at the end of his journey from Selma Dr. King had asked the tired crowd of thousands: “How long? Not Long was the response.” But the Black community was divided about how long change was taking. Many no longer chose to embrace the nonviolent course of action proscribed by the late Dr. King. Young Blacks, especially, were impatient for the promised change that would come with voting rights. So many lives had been lost in the struggle over the ballot: leaders, foot soldiers, and civilians alike.
Perhaps the anticipation of change and its late arrival caused the tremendous release of grief-filled anger and rioting that followed the murder of Reverend King. To many Blacks, there was too little to show for decades of debilitating sacrifice and his loss to an assassin’s bullet. The riots began. Decades of rage erupted into the streets.
Yet in 1968, the war over those rights begged the question of just how long the struggle would continue. Political progress was made in the wake of Dr. King’s assassination. Before the passage of the Voting Rights Act, Fannie Lou Hamer had helped create the alternative Mississippi Freedom Democratic Party (MFDP). In 1964 she, along with members of the MFDP, had attended the Democratic National Convention in Atlantic City. At the convention, Hamer spoke of the beating she received in retaliation for registering to vote. She gave a nationally televised speech critical of a country that would allow the convention’s Mississippi delegation to exclude Blacks and a political party that would not seat the MFDP.
The Democratic Party’s Executive Committee offered two at-large seats. Hamer turned them down as mere tokens. Hamer resented the NAACP for attempting to control voting rights for rural Mississippi from New York City. Although the NAACP attorneys traveled to Mississippi as often as they could afford to, Hamer had lived there all of her life and knew the players. Hamer had been beaten, threatened, and fired upon while working as an advocate for voting rights. When asked why she persisted, Hamer responded, “All my life I’ve been sick and tired. Now I’m sick and tired of being sick and tired.”40 She gave voice to the feelings of millions of African Americans.
In 1968 Hamer attended the Democratic Convention in Chicago as the first Black delegate from the South to be seated at a national political convention since Reconstruction. The unrest surrounding that convention overshadowed that vindication of her years of hard work. Unfortunately, Hamer never achieved the political positions she sought in Mississippi, nor did the MFDP gain the traction needed to make the changes Blacks needed there.
Wharlest Jackson, Mississippi NAACP treasurer, was martyred in 1967 when a bomb exploded in his car. He was probably killed because he had accepted a job promotion to a position only held by White men, at Armstrong Tire & Rubber Plant in Natchez, Mississippi. Once again, a Black man was forgetting his place, and White supremacists needed to reestablish their self-esteem. No one was arrested for this cowardly act. In 1965 local NAACP president George Metcalfe had taken a promotion at Armstrong Tire & Rubber. When he turned on the ignition of his car, it blew up. Metcalfe barely survived. But no one was arrested. Klansmen were suspected. These are among many civil rights–era cold cases.
Times were changing within the civil rights community. The “Young Turks” of the NAACP demanded Black Power programs more focused on urban Black political, economic, and educational issues. The NAACP LDF successfully represented the Black, powerful, and irreverent Harlem congressman and leader of the historic Abyssinian Church, Adam Clayton Powell Jr., in defense of his seat in the House of Representatives, in Powell v. McCormack in 1969.41 In this case, a special House committee had investigated Powell for alleged misuse of travel funds as chair of the Committee on Education and Labor.
He had been held in contempt of Congress, yet won reelection despite the cloud of controversy. However, the House had expelled him in 1966, and when Powell returned to the Capitol, Speaker of the House John McCormack refused to administer the oath of office. Representative Powell challenged his expulsion as discriminatory, because White members abused funds and weren’t punished, and he requested his back pay. When the case came to the Supreme Court, it ruled in favor of Powell.42 However, the Powell political dynasty was damaged.
NAACP political wizard Clarence Mitchell led the organization’s Washington lobbying effort. The ability to lobby for progressive legislation and oppose the ascent of racially biased judges while litigating civil rights cases was the hallmark of the NAACP. This strategy began with its successful opposition to Judge Parker, a racist from North Carolina, who was nominated to the Supreme Court in 1930. In 1969 the NAACP successfully defeated the Supreme Court nomination of Clement F. Haynsworth.
As expected, the totalitarian enemy of any democracy, represented by White supremacists, struck back. In Allen v. Board of Electors, the states of Virginia and Mississippi argued that the voting law was unconstitutional and that Congress had exceeded its authority in passing the Voting Rights Act.43 The Supreme Court ruled in favor of the act and reaffirmed that states listed under section 5 for preclearance must first submit any changes to their voting laws to the federal government for approval before enacting them. The court also ruled that private parties can bring a lawsuit under the Voting Rights Act.44
In Brooklyn, New York, the case of Cooper v. Power challenged the gerrymandering of voting districts that kept millions of Black voters from electing their choices for Congress.45 Despite the large Black population there, not one Black person had been elected to Congress from Brooklyn. Andrew Cooper led a legal challenge, later joined by the NAACP, to change the voting districts. The successful conclusion of the Cooper redistricting case would pivot Shirley Chisholm, a Black Brooklyn public schoolteacher, into the House of Representatives. Chisholm entered Congress in 1969 as the first Black female US representative, only three years after passage of the Voting Rights Act.
The Voting Rights Act had turned the tide in the voting rights war. In Louisiana, birthplace of the Plessy doctrine of “separate but equal,” more than 350,000 Black residents registered to vote in 1969. “Few events in American political life have had as profound or as far-reaching consequences as has passage of the Voting Rights Act.”46 The NAACP and NAACP LDF would make sweeping changes because of the passage of the Voting Rights Act and the sacrifices it required. But the voting rights war was far from over. States would continue to attack the protections provided by this extraordinary legislation. The organization was embattled from outside and within.