“THE VOTING RIGHTS ACT – ONCE AGAIN” 

KEYNOTE BY THE HONORABLE NATHANIEL R. JONES

“Past and Prologue: National Conference on the Voting Rights Act of 1965”

Leadership Conference on Civil Rights

Washington DC

July 26, 2005

Here the Congress is faced, once again, with a decision of whether to extend the 1965 Voting Rights Act. That this must be done periodically is nothing short of bizarre, but it was part of the price that had to be paid to get on the statute books the means of remedying the horrible abuses and denials that were interfering with the right of Black Americans to exercise the franchise.

I salute Wade Henderson and the Leadership Conference on Civil Rights for once again stepping forward and marshaling the forces necessary to ensure that the Voting Rights Act will be extended. Wade operates in the tradition of those who led the effort to bring about the Voting Rights Act, and the 1964 Civil Rights Act. President Lyndon Johnson, Vice President Hubert Humphrey, Congressman McCullough, Senator Dirksen, Senator Javits, Clarence Mitchell, Joe Rauh, Roy Wilkins, Arnold Aronson, Frank Pohlhous, Bill Taylor and many others who worked with the LeadershipConference.

It is sad, however, that the energy and resources of the Leadership Conference must be diverted from many of the other crucial challenges confronting it, in order to deal with the issue that has been demonstrated to be of such fundamental importance in a democracy.

The campaign to win an extension of the act comes at a time when the fortunes of civil rights champions are not the best. The events surrounding the 2000 presidential election, and the result of the 2004 presidential election left the civil rights ranks in a state of demoralization. A number of the young workers in Ohio gathered in my home, filled with excitement and anticipation for having worked to activate an unprecedented number of voters only to see their efforts overwhelmed by a strategy that was long in the planning. There were diversionary issues of single sex marriage, abortion and faith-based programs that resonated enough to skew the traditional voting patterns of racial and ethnic minorities. I explained to my young friends that much of that was hardball politics. What was beyond the pale, however, were the tactics that targeted minority voters, which could have had a chilling effect on voter turnout.

I took the occasion to provide some perspective to my young guests on the stormy road we have had to travel to guarantee voting rights for minority Americans. In a similar fashion, we must use this campaign to renew the Voting Rights Act as an opportunity to educate the public about that history. Most of today's legislators know little or nothing about that history, to say nothing of the void in the knowledge of the average American.

The attempt by Blacks to gain the right to vote has been a long and difficult one. Its roots go back to the period following reconstruction when the southern states actively sought to discourage Black citizens from exercising their right to vote. By means of literacy tests, the grandfather clause, poll taxes, and white primaries, governments of southern states disfranchised Blacks.

In the forty years prior to the civil war, none of the new states that joined the Union recognized Black suffrage. The majority of northern and western states denied Blacks access to the ballot box during this pre-war period. In fact, by 1869, four years after the civil war had ended, only six northern states had acted to allow Blacks to vote. No state with a large Black population had accepted the notion of Black suffrage-obviously, prior  to the civil  war none of the slave states allowed Blacks to vote.

The outcome of the civil war changed this to some small degree. In the first years after the war, Congress began to exert its power in the direction of providing suffrage to Blacks. In the first two years after the war most southern states appeared to believe that they would be able to continue to subjugate their former slaves. Most southerners were not inclined to  allow  the former slaves to participate in society in any meaningful manner. Only a display of federal power in the form of federal troops made possible their participation in the electoral process.

By 1870, many white southerners were beginning to recapture political control of state governments. Once they reestablished control, one of the first things they did was undermine the Black vote. A number of tactics, disturbingly similar to those said to have been used in Florida, surfaced: voting sites were kept secret from Black voters, ballot boxes were stuffed, election returns were doctored, votes went uncounted and state constitutions were "amended" to remove guarantees of equal rights. As the federal government reduced its presence in the south, the southern governments became increasingly aggressive in their disfranchisement efforts.

With the federal government maintaining a presence in the south and enforcing the reconstruction laws, the rights of Blacks were protected. But as the federal government began to reduce its military presence there, the Blacks lost the only thing that stood between them and the white majority bent on reasserting their domination the right to vote. The Hayes-Tilden Deal of 1876 essentially sold out Blacks and signaled that the newly proclaimed federal rights of Blacks would have to give way to "state's rights." The "deal" was based on the following memorandum:

[W]e can assure you in the strongest possible manner of our great desire to have adopted such a policy as will give to the people of the states of South Carolina and Louisiana the right to control their own affairs in their own way; and to say further that we feel authorized, from an acquaintance with and knowledge of Governor Hayes and his views on this question, to pledge ourselves to you that such will be his policy.

The deal effectively nullified the fifteenth amendment and restored governmental and political control exclusively to white persons. Of all the schemes devised, the "white primary" was probably the most effective for it directly barred Blacks from participating in the electoral process.

It took a series of four Texas cases-over 17 years from 1927 to 1944--when Thurgood Marshall and William Hastie, on behalf of the NAACP, won the Smith v. Allwright decision that overturned a 1935 decision in Grovey v. Townsend that held that the Texas democratic party could exclude Blacks because it was a "private" organization. Smith v. Allwright held this to be a state action. This led to enfranchisement of a significant number of Blacks.

The persistence of opponents of the franchise for Black Americans prompted Supreme Court Justice Frankfurter todeclare in several voting rights cases, including Lane v. Wilson, that, "The fifteenth amendment nullifies sophisticated as well as simple-minded modes of discrimination." Even so, efforts at disfranchisement continued until 1957, when Congress enacted a Voting Rights Act, followed by the 1960, 1964 laws and the 1965 Voting Rights Act. These enactments were secured after a sustained campaign across the country, preceded by the assassinations of Harry Moore in Florida and Medger Evers, Michael Schwerner, Andrew Goodman and James Chaney and Viola Liuzzo in Mississippi and Selma, because of their efforts to win voting rights for African Americans.

The history of the struggle of Blacks to win the right to vote should help other Americans understand the pain experienced by Black Floridians and other African Americans in 2000 and again in 2004 when they saw access to the ballot box obstructed, and their votes go uncounted. Pain became outrage when the Supreme Court that struck down "sophisticated as well as simple­ minded modes of discrimination;' is seen as using its awesome judicial power to deny them the right to have their ballots counted.

What we are witnessing now with confirmations that followed the nuclear options threat is nothing short of compounding the overreach of Bush v. Gore. As one who served on an intermediate appellate court for nearly 23 years, I strove to be true to a teaching of the Supreme Court-that decisions on state law, decided by the highest court of a state, was entitled to deference. By its reversal of the Supreme Court of Florida-as was done-five members of that body violated its own theology.

All that has happened since that decision-a decision which, curiously enough, was declared as not setting a precedent--can be traced to that overreach.

Foremost among those actions was the so-called compromise on the nuclear option compromise led by the so-called gang of fourteen, which saw the constitutional principle of advise and consent stripped of its essence. It paved the way for four seats on the appellate courts to be filled by persons wed to highly questionable views on the role of the federal judiciary with respect to civil rights and state's rights.

Those who wink and nod at this result may rightly be called upon to defend against the charge of being enablers and accomplices to the repealing of key sections of the 1964 Civil Rights Act and the 1965 Voting Rights Act.

As the extension of the Voting Rights Act is debated, the civil rights community must urge that they "call out," in their home districts, those who may be equivocating.

Wade Henderson and the Leadership Conference on Civil Rights are the generals in this campaign-just as Clarence Mitchell, Joe Rauh, Bill Taylor, and their colleagues were in the campaign to win passage of the 1957, 1960, 1964 and 1965 statutes.

It is not about lack of leadership--contrary to the media efforts to discount it-but it is about activating constituencies andmoving them to follow that tried and true leadership.

We can't stop-the nation owes a debt to those who fought the battle for the ballot-it was the ballot that made possible the transformation of this nation.

The renewal of the Voting Rights Act offers a challenge that must be met.