Jim Crow II
The VRA became law on August 6, 1965, 104 years after Lincoln signed the Confiscation Act freeing Confederate slaves. “Today is a triumph for freedom as huge as any victory that has ever been won on any battlefield,” President Johnson said. He called the vote “the most powerful instrument ever devised by man for breaking down injustice.” King and Lewis, though not Lafayette or any of the other foot soldiers in Selma, were given the pens used to sign the legislation by LBJ. Lewis, now a thirteen-term congressman from King’s home district in Atlanta, keeps the pen framed in his living room and a bust of LBJ in his Washington office. In his excellent memoir Walking With the Wind, Lewis called the day “a high point in modern America, probably the nation’s finest hour in terms of civil rights.”
The VRA quickly became regarded as one of the most transformative pieces of legislation ever passed by Congress. It suspended literacy tests across the South, authorized the attorney general to file lawsuits challenging the poll tax, replaced recalcitrant registrars with federal examiners, forced states with a history of voting discrimination to clear electoral changes with the federal government to prevent future discrimination, and laid the foundation for generations of minority elected officials, including Obama. In 1965, there were fewer than 500 black elected officials nationwide. Today, there are more than 10,500.
The law had an immediate impact. On August 10, federal examiners from the Civil Service Commission arrived in Selma and other centers of hard-core resistance to begin registering black voters. During the next year, the number of black voters in Dallas County increased from 400 to more than 10,000. The 1966 primary elections in Alabama were the first test of the new law. Selma’s moderate commissioner of public safety, Wilson Baker, challenged Clark for sheriff. Baker courted black voters, while Clark appealed to his segregationist base. Baker accumulated a comfortable lead thanks to the large black turnout, but the Dallas County Democratic executive committee, which supported Clark, refused to count six boxes of ballots from predominantly black precincts that would have given Baker a large enough margin of victory to avoid a runoff. Assistant Attorney General John Doar immediately filed a lawsuit in federal court asking that the votes be counted. Judge Daniel Thomas of Mobile ruled for the government, and that November Selma elected a new sheriff. Though it would take much longer for blacks to gain real representation in the South (Selma didn’t elect a black mayor until 2000), the election and its aftermath were a preview of the changes to come.
The temporary provisions of the VRA were overwhelmingly reauthorized by Congress four times in subsequent years and strengthened every time. Critics of the law had no choice but to acknowledge its popularity. “Even the name of it is wonderful: the Voting Rights Act,” Justice Antonin Scalia said in February. “Who is going to vote against that in the future?”
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Given the magnitude of the VRA, it’s surprising that it took forty-eight years for someone to chronicle the law’s passage. May, a professor of history at the University of Delaware, has written about the subject before in a biography of Viola Liuzzo, a Detroit housewife killed by members of the KKK following the climactic Selma-to-Montgomery march. Parts of May’s narrative, particularly the first few chapters, will be familiar to students of civil rights history, chronicled previously in books like David Garrow’s Protest at Selma (1978) and Steven Lawson’s Black Ballots (1976) and In Pursuit of Power (1985). But May’s book is a great introduction to voting rights at a moment when the subject is drawing more attention than any time since 1965.
Bending Toward Justice was published in April, two months before the Supreme Court—with Scalia in the majority—invalidated the centerpiece of the VRA, Section 4, the formula designating that states with the highest frequency of voting discrimination (primarily in the South) had to approve their voting changes with the feds. Section 5, the preclearance position, still theoretically exists, but it is now a zombie rule because it no longer applies to states. Justice Ginsburg cited May’s book in her scathing dissent in Shelby County v. Holder, noting that Shelby County, Alabama, which challenged the VRA’s constitutionality, committed the very type of voting discrimination that Section 5 was designed to stop: in 2008, the city of Calera eliminated its only majority-black city council district. The change was invalidated—and new districts drawn—only after the Justice Department stepped in. Now Shelby County and so much of the South are free to return to their old ways.
Chief Justice John Roberts based his decision on what he called the “fundamental principle of equal sovereignty” among the states, which he ruled Section 4 violated by treating some states differently from others. That argument is eerily reminiscent of those made by South Carolina, Alabama, Louisiana, Mississippi and Virginia when they first challenged the VRA’s constitutionality in 1965—an argument the Supreme Court of that day soundly rejected. “We here hold that the portions of the Voting Rights Act properly before us are a valid means for carrying out the commands of the Fifteenth Amendment,” wrote Chief Justice Earl Warren in an 8–1 opinion in South Carolina v. Katzenbach. “Hopefully, millions of non-white Americans will now be able to participate for the first time on an equal basis in the government under which they live.”