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SECURING THE RIGHT TO VOTE:
THE 50TH ANNIVERSARY OF THE
VOTING RIGHTS ACT OF 1965 AND
CURRENT DEVELOPMENTS IN
ELECTION LAW
Sponsor: Public Interest Law Section
CLE Credit: 1.0
Thursday, June 18, 2015
12:00 p.m. - 1:00 p.m.
Bluegrass Ballroom
Lexington Convention Center
Lexington, Kentucky
A NOTE CONCERNING THE PROGRAM MATERIALS
The materials included in this Kentucky Bar Association Continuing Legal
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subject matter covered. No representation or warranty is made concerning the
application of the legal or other principles discussed by the instructors to any specific
fact situation, nor is any prediction made concerning how any particular judge or jury will
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practitioner. The faculty and staff of this Kentucky Bar Association CLE program
disclaim liability therefore. Attorneys using these materials, or information otherwise
conveyed during the program, in dealing with a specific legal matter have a duty to
research original and current sources of authority.
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TABLE OF CONTENTS
The Presenters................................................................................................................. i
Securing the Right to Vote – My Experience during the Crucial 1960s as a
Lawyer in the Civil Rights Division of the Department of Justice ...................................... 1
(Mis)Trusting States to Run Elections ........................................................................... 11
THE PRESENTERS
Professor Joshua A. Douglas
University of Kentucky College of Law
620 South Limestone
Lexington, Kentucky 40506
(859) 257-4935
[email protected]
PROFESSOR JOSHUA A. DOUGLAS teaches Election Law, Civil Procedure,
Constitutional Law II, and a seminar on Supreme Court decision-making at the
University of Kentucky College of Law. Prior to joining the law school faculty, Professor
Douglas clerked for Judge Edward C. Prado of the United States Court of Appeals for
the Fifth Circuit and practiced litigation at the law firm of Akin, Gump, Strauss, Hauer &
Feld. He earned his J.D. from George Washington University Law School, where he
was an articles editor on the Law Review. His article "Procedural Fairness in Election
Contests" was a winner of the 2011-12 SEALS Call for Papers, and he has been cited
extensively in major law review articles and case books in the field. He is also a coauthor of a new election law case book (Aspen Publishers, 2014). In addition, his media
commentaries have appeared in Reuters, Politico, Huffington Post and Slate, and he has
been cited in major newspapers such as the New York Times and the Washington Post.
John M. Rosenberg
147 Clark Drive
Prestonsburg, Kentucky 41653
(606) 886-8851
[email protected]
JOHN M. ROSENBERG is of-counsel to Pillersdorf, DeRossett & Lane in Prestonsburg.
He is a graduate of Duke University and received his J.D. from the University of North
Carolina College of Law at Chapel Hill. Mr. Rosenberg began his legal career as a Trial
Attorney at the Department of Justice's Civil Rights Division in 1962 and he participated
in historic litigation in the South during the Civil Rights movement. In 1970 he became
the Director of the Appalachian Research and Defense Fund of Kentucky, Inc. and
served as such until his retirement in 2002. Mr. Rosenberg is a former member of the
Kentucky Bar Association Board of Governors and is the Vice Chair of the Kentucky
Public Advocacy Commission. He serves as an advisor to the ABA Standing Committee
on Legal Aid and Indigent Defendants. In addition, Mr. Rosenberg serves on the Boards
of the Appalachian Citizens' Law Center and the East Kentucky Leadership Foundation.
i
ii
SECURING THE RIGHT TO VOTE –
MY EXPERIENCE DURING THE CRUCIAL 1960'S AS A LAWYER IN THE
CIVIL RIGHTS DIVISION OF THE DEPARTMENT OF JUSTICE
John M. Rosenberg
The segregated South became a way of life following the Civil War. Culture separated
blacks and whites into a caste system that pervaded all aspects of daily life.
To maintain this system, among other means, the southern states, led by the states of
Louisiana, Mississippi and Alabama, engaged in calculated and deliberate actions to
disenfranchise blacks from voting. The primary devices, seemingly fair on their face,
were literacy tests and the poll tax. 1 Literacy tests required minimally the ability to read
and write or understand a section of the state constitution. The poll tax required a citizen
to annually pay $1.50 a year, and became cumulative from year to year, if not paid - a
burden most sharecroppers could not meet. Of course, these requirements were
administered in a totally discriminatory fashion by local officials. Basically, the
requirements were applied to blacks and not to whites. The results were dramatic. For
example, in the election in 1900 in Alabama, 100,000 black persons and 191,000 whites
had voted. By 1904, black registration had dropped to 3,700 and white registration had
increased to 250,000.The results were similar in Louisiana and Mississippi. The caste
system was complete. There was total segregation of the races in all aspects of
southern life. Without the right to vote, change would be unlikely.
The Civil Rights Division had only come into existence with the Civil Rights Act of 1957,
the first Congressional civil rights legislation in virtually one hundred years. The Act
prohibited interference with the right to vote, and authorized the Attorney General to go
to court to prevent such interference. 2 The 1960 Amendments to the Act authorized the
Attorney General to inspect the voting records of local registrars and to take action to
eliminate patterns of discrimination in voting. 3
I came to the Civil Rights Division in the fall of 1962. I had to wait several weeks to be
interviewed by John Doar on a Saturday morning, since he had been preoccupied in
Mississippi with the admission of James Meredith to the University of Mississippi. John
had been with Meredith every step of the way, getting the court order to gain his
admission, and then accompanying him to his dormitory room. Eventually, other
Division attorneys would assume that role until John felt that Meredith's safety was
assured.
John was a Plaintiff's lawyer from a small town in Wisconsin, New Richmond, who
agreed to take the position of First Assistant in the Civil Rights division during the last six
1
The Grandfather clause and the white primary were also effective in keeping blacks off the
voting rolls until they were declared unconstitutional.
2
42 USC §1971, et seq. Prior to this legislation, legal scholars had felt that qualifications for
voting were a matter for the states, and not the federal government. See John Doar, "The Work of
the Civil Rights Division in Enforcing Voting Rights Under the Civil Rights Acts of 1957 and 1960,"
25 Fla. St. U. L. Rev. 1 (1997).
3
Ibid.
1
months of the Eisenhower Administration. Prior to John's arrival the Division was staffed
largely by "desk lawyers" who asked the FBI to conduct investigations. John decided he
needed to go into the field to find out what was happening. His instincts were right. He
was soon involved in major litigation on behalf of blacks who had been punished for
having attempted to register to vote. His first case was on behalf of a black farmer in
Louisiana who was unable to get his cotton ginned after attempting to register to vote.
Then he represented a group of sharecroppers in Tennessee who had been evicted
after attempting to register. When the Kennedy Administration came into the White
House, Bobby Kennedy was so impressed with John's work that he asked him to stay
on.
John was our task-master and he led by example. He insisted on careful preparation indeed overpreparation - of our cases, absolute professionalism, and long hours of work.
At this time, John personally interviewed every prospective attorney who hoped to join
the Division. We were a very small group – fifteen to twenty lawyers who would be the
vanguard in the nation's new effort to eliminate the caste system in the South. 4
The need for these first important civil rights statutes was clear. Blacks who sought to
register would do so at their peril. But beginning around 1961 they were encouraged by
the Student Nonviolent Coordinating Committee (SNCC), whose members, under the
leadership of Bob Moses, began organizing voter registration drives in these deep
southern counties. Moses, a graduate of Hamilton College, had been a school teacher
in New York before coming south. Moses and his colleagues were constantly subjected
to threats, intimidation and violence.
In one of the earliest incidents in 1961, John Hardy, a SNCC worker, had accompanied
a black woman, Ruby McGee, to register to vote in Amite County, Mississippi. As he
was leaving the office, the Registrar hit Hardy on the head with a pistol. Hardy went to
complain to the Sheriff, who promptly arrested him for breach of the peace. SNCC
complained to the Attorney General. The Division immediately filed an action in federal
court to enjoin the criminal prosecution, which was denied by U.S. District Court Judge
Harold Cox. The Division appealed, and in a case of first impression, Judge Rives of the
United States Court of Appeals for the Fifth Circuit granted an injunction pending appeal
that stopped the prosecution. 5
As word got out that the Kennedy Administration intended to seriously enforce Voting
Rights statutes, we began to hear regularly from Bob Moses and the SNCC workers and
from black leaders and citizens about local black registration efforts. So John Doar sent
us south to conduct interviews and to get a better picture of what happened. We learned
that oftentimes blacks were told the office was closed, or that the registrar was
unavailable. A black applicant who filled out an application form was summarily
4
For an extensive discussion of the development and work of the Civil Rights Division, see Brian
Landsberg, Enforcing Civil Rights; Race Discrimination and the Department of Justice (University
Press of Kansas, 1997).
Today there are about 400 lawyers in the Division, handling a wide range of responsibilities.
5
United States v. Wood, 295 F.2d 772 (5th Cir. 1961); John Doar, "The Work of the Civil Rights
Division in Enforcing Voting Rights Under the Civil Rights Acts of 1957 and 1960," 25 Fla. St. U.
L. Rev. 1, 5 (1997).
2
rejected. Typically, they were given long and difficult Constitutional sections to interpret.
If they gave a reasonable interpretation they were rejected anyway.
Having learned of their experiences first hand, we returned to Washington, D.C. and
prepared requests to the FBI to photograph the application forms and records of the
local registrar so we could review these records to determine the standards applied to
white applicants and to blacks. Initially, the registrars and the state officials erected
another hurdle. Despite the clear language of the statute authorizing the records
inspection, they challenged the authority of the Attorney General to inspect the records
and required us to obtain court orders from the federal court to carry out the inspection.
Judge Frank Johnson, the heroic federal judge who sat in Montgomery, Alabama, in no
uncertain terms ordered the inspections to go forward. 6 Judge Johnson's order, even
affirmed by the Fifth Circuit, did not convince officials in other states to comply. The
Division had to fight the battle over again before other registrars and judges, like Judge
Cox, agreed with our right to carry out the inspections. 7 Having finally gotten over that
hurdle, we began to routinely inspect the records of the various registrars.
The inspection procedure was orchestrated. The Division would give the registrar
written notice of the inspection and the documents expected to be copied. The Civil
Rights Division lawyer would arrive simultaneously with a team of FBI agents who would
bring an appropriate camera for microfilming. The FBI agents would set the camera up
in the registrar's office. The Civil Rights Division lawyer would identify the records to be
copied. The inspection and copying would take several hours, even days, depending on
the size of the voting rolls and the number of applications. Clearly, these inspection and
copying duties were not the FBI agents' favorite activity. They were used to going after
bank robbers and interstate thefts.
We would return to our offices in Washington, D.C. and review the records on microfilm
readers. We spent untold hours with our heads in the microfilm reader reviewing the
records. There we would find the documentary evidence of the blatant discrimination
against blacks. John Doar called it the romance of the records. We would find accepted
white applicants who repeatedly gave "canned" answers to an interpretation of a
constitutional section, evidencing assistance; accepted applications from whites with
answers left blank; and accepted applications with clearly erroneous interpretations.
Yet, blacks who completed their applications, whether they gave proper answers or not,
were routinely rejected.
Being the days before computers, we developed rudimentary ways for analyzing the
information from the applications. We copied the significant information, name, address,
constitutional section, the applicant's answers, etc., on cards which had multiple carbon
copies. We then separated the cards and arranged the cards into the appropriate
categories to discover the obvious patterns of assistance and discrimination. We then
had the basis of our lawsuits against the local registrar. In preparation for the trial, we
would choose some of the accepted white applicants whom we suspected to be barely
literate, if at all, from their answers and asked the FBI to interview them about their
experience in applying to register to vote.
6
State of Alabama v. Rogers, 187 F.Supp. 848 (M.D. Ala. 1960), aff'd 285 F 2d 430 (5th Cir.
1961).
7
See United States v. Lynd, 301 F.2d 818 (5th Cir. 1962).
3
Our trial system was to have two lawyers at the counsel table, one of whom would
present the case, and the other would take notes and assist the presenting lawyer. The
second team of two lawyers was outside the courtroom and would prepare the
witnesses, both our own, and the ones we had identified through the FBI, who often
turned out to be hostile. At the trial, we would present our literate black witnesses who
had been rejected and contrasted them with the accepted white witnesses whose lack of
literacy and ability to independently interpret the constitutional sections were readily
apparent. We would also examine the registrar about his practices, confronting him with
examples that demonstrated his discriminatory actions.
Following the trial, we would invariably file an extensive trial brief, summarizing the
evidence and setting forth our proposed finding of facts, conclusions of law and
proposed relief. The relief we sought was quickly styled "freezing relief;" namely, we
asked the Courts to "freeze" the standards that had been applied to white applicants and
apply them to blacks, as well. The first court to agree with our proposal was in Alabama
in Judge Johnson's Court. In one of the first cases brought by the Division, in 1961,
Judge Johnson ordered the registrar in Macon County, Alabama to register the black
applicants who had been identified as previously rejected. 8
In many of the other federal courts in which we litigated, the going was slower and more
difficult. We would lose or obtain very limited relief and we would have to appeal one
case after another to the Fifth Circuit Court of Appeals. The registrars would find ways to
get around the court orders to the extent that they could cleverly do so, even forcing the
Government to file contempt of court charges. My former colleague, Judge Gordon
Martin, wrote a book documenting the continuing discriminatory practices over a period
of several years by the Registrar of Forrest County, Mississippi, including a contempt
proceeding before a three-judge court. 9
Our small group of lawyers stayed busy. As John Doar set forth in his law review note,
"(b)y the end of 1963 the Division had filed thirty-four suits against county registrars for
discrimination in voter registration and had forty-eight other counties under investigation.
It had filed twelve suits seeking injunctions against intimidation, with another eight under
investigation. It had examined the voter registration records in twenty-seven counties in
Alabama, fifty counties in Mississippi, and twenty-seven counties in Louisiana." 10
Still, it soon became apparent that this county by county approach was obtaining limited
results in getting large numbers of blacks registered. The Division then filed suits in
Mississippi and Louisiana, challenging the registration requirements on a statewide
basis. The preparation of these cases required enormous resources. Depositions were
taken of registrars statewide. The State of Mississippi sent voluminous Interrogatories,
asking detailed information about every instance of discrimination of which the
8
United States v. Alabama, 192 F Supp. 677 (M.D. Ala. 1961), aff'd 304 F.2d 583 (5th Cir. 1962),
aff'd per curiam 371 U.S. 37 (1962).
9
Gordon A. Martin, Jr., Count Them One By One: Black Mississippians Fighting for the Right to
Vote (University Press of Mississippi 2010).
10
John Doar, "The Work of the Civil Rights Division in Enforcing Voting Rights Under the Civil
Rights Acts of 1957 and 1960," 25 Fla. St. U. L. Rev. 1, 12 (1997).
4
government was aware. John Doar and our section Chiefs decided that we would
answer them in detail. The result, after several months of intense work, was the delivery
of seven volumes of Answers to Interrogatories, organized by categories, and each
being about two inches thick. Our case was virtually ready for submission. Both of these
statewide cases, in time, reached the United States Supreme Court. The Court affirmed
Judge Wisdom's Fifth Circuit opinion which had declared Louisiana's registration
requirements unconstitutional. 11 The Mississippi action had been dismissed by Judges
Cameron and Cox, who were still holding the states' rights and segregationist line, over
the very persuasive dissent by Judge Brown. In a strongly worded opinion criticizing the
decision below, Justice Black, writing for the Court, sent the case back for immediate
trial. 12
It is important to remember that while we were working on these voting cases, the civil
rights struggle was ongoing on all fronts, and Civil Rights Division lawyers were on those
front lines as well. The year 1963 saw a series of egregious and significant incidents in
the civil rights struggle. There were the Birmingham sit-ins and Martin Luther King's
powerful letter from the Birmingham jail; Bull Conner hosing the Birmingham protesters;
the beating of Fannie Lou Hamer and her coworkers in the Winona, Mississippi jail after
they were arrested for having sought service in the bus station while the bus was
stopped for a rest stop; the killing of Medgar Evers; the arrests of sixty blacks in Itta
Bena, Mississippi, after someone hurled a smoke bomb into a church where a voting
rights rally was going on; the killing of the four little girls in the Birmingham church; the
March on Washington, and the assassination of President Kennedy.
The civil rights events of 1964 remain in our memory. It was Freedom Summer, when
hundreds of students came south to staff Freedom Schools and help with voter
registration activities. Unfortunately, on literally the first day that the students headed
south from Oberlin College, June 25, 1964, three civil rights workers, James Chaney,
Andrew Goodman, and Michael Schwerner, were abducted and murdered by local Klan
members aided by local law enforcement officers. 13 The Freedom Schools went forward,
nevertheless, and the Division's lawyers monitored them closely as we conducted our
other voting rights work.
The culmination of these events was the signing of the Civil Rights Act of 1964, on July
2, 1964. The Act expanded the authority of the Department of Justice to challenge
discrimination in Public Accommodations, Employment, Education, and in the use of
Public Facilities. Now, the Division had even more work to do. 14
But the voting rights work kept on. Dallas County, Alabama had become the center of
voting rights activity for SNCC and for Martin Luther King and the Southern Christian
11
United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963), aff'd 380 U.S. 145 (1965).
12
United States v. Mississippi, 229 F. Supp. 925 (S.D. Miss. 1964), rev'd 380 U.S. 128 (1965).
13
The successful federal prosecution in which seven Klansmen were convicted was again the
Division's work, led by John Doar, who was the chief trial lawyer when the case came to trial in
1967. The delay in the trial date was a legal challenge to the validity of the federal indictment
which was upheld by the Supreme Court in United States v. Price, 383 U.S. 787 (1966).
14
The Act also eased some restrictions on registration for voting. It included a rebuttable
presumption that persons who completed the sixth grade are literate, but the provision applied
only to federal elections.
5
Leadership Conference. The official opposition was led by Sheriff Jim Clark with the
support of the Dallas County prosecutor and judiciary. The Division filed suit in federal
court to prevent further interference with voting activity and the use of public
accommodations. In December 1964 John Doar presented the government's case to a
three-judge court. The case focused on the acts of interference and intimidation with
voter registration activity and the use of public accommodations by black citizens by
Clark and his colleagues. As an example, Sheriff Clark used cattle prods in evicting four
black students who sought service at a local drive-in restaurant and then trumped up
charges against them for resisting arrest and carrying a concealed weapon, a bicycle
chain and padlock. There were over 125 witnesses and approximately 100 exhibits. The
Court, in a per curiam opinion, issued a broad injunction against Clark and his posse to
prevent further acts of interference and intimidation. 15
The voter registration activity in Dallas County continued and culminated on Bloody
Sunday, March 7, 1965, when the Alabama state troopers and Sheriff Clark's posse met
the 650 marchers at the Edmund Pettus Bridge in Selma. Many were injured.
Subsequently, the black leaders filed suit to prevent further interference with their right to
march. The government intervened and John Doar represented the United States. After
four days of testimony, Judge Johnson issued an injunction authorizing the march, which
proceeded on March 21. 16 When the march reached Montgomery on March 25, Martin
Luther King would speak to a crowd of 25,000 persons.
In the meantime, on March 15, 1965, President Johnson addressed the nation and
announced that he would be introducing the Voting Rights Act of 1965. The Division had
been working on various proposals for the Act. Principally, the Act would outlaw the use
of literacy tests in the southern states where they had been used effectively to prevent
blacks from registering. Unfortunately, this period was marked by more killings. The first
was the beating death of Reverend James Reeb on March 9. The assailants were
acquitted in state court. Then, on March 25, after the conclusion of the march to
Montgomery, Viola Liuzzo, a white volunteer from Michigan, who was being driven to
pick up another load of marchers, was gunned down by local Klansmen. An FBI
informant, Gary Thomas Rowe, was in the car with the three Klansmen, and testified
against them. Nevertheless, two state court prosecutions were unsuccessful.
The United States then brought a federal conspiracy case against the Klansmen. On
December 3, 1965, with John Doar again being the chief trial counsel, the jury returned a
verdict of guilty against the Klansmen - the first guilty verdict of its kind in one of these
cases - and Judge Johnson sentenced them to ten years in prison.
On August 9, 1965, Congress passed the Voting Rights Act of 1965. It prohibited the use
of literacy tests in seven southern states. 17 It authorized the use of federal examiners to
15
United States v. Clark, 249 F. Supp. 720 (S.D. Ala. 1965).
16
Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965). Judge Johnson had initially turned
down the Plaintiffs' application for a Restraining Order, citing the need to provide the Defendants
an opportunity to be heard.
17
The seven southern states were Alabama, Georgia, Louisiana, Mississippi, North Carolina (in
part), South Carolina and Virginia. Alaska was also certified, as were certain counties in Arizona,
Hawaii, and Idaho.
6
conduct registration of voters; and it provided for federal observers to be present at
elections in counties certified for federal examiners.
The Act also directed the Attorney General to file suit to stop the use of poll taxes as a
condition of voting. The cases were filed almost immediately, and preparation of the
Alabama case became a major part of my work. Interestingly, even as we were
preparing this case, the attitude of the Alabama officials continued to be one of hostility
to black registrants. As the court pointed out in its opinion, "With the coming of large
scale Negro voter registration, the State mustered the combined forces of the Governor's
office, the State Sovereignty Commission, the State Department of Education, and the
Alabama Department of Public Safety to encourage white persons to register to vote and
to pay their poll tax. Alabama State Troopers distributed 600,000 brochures entitled 'A
Message from Governor George C. Wallace' to white, but not Negro, schools between
January 17 and January 20, 1966, less than two weeks before the poll tax deadline and
while this case was pending before this Court." 18 Steve Pollak, then the Division's First
Assistant, and soon to become the Assistant Attorney General for Civil Rights, presented
the case to a three-judge court; and the court promptly declared the tax invalid under the
Fifteenth Amendment. 19
In the months following the passage of the Voting Rights Act, thousands of blacks
throughout the South would be registered by federal examiners. On the first day in the
offices where there were federal examiners, 1144 blacks were registered. By January
1966, federal examiners had registered almost 80,000 blacks in thirty-six counties;
during the same period local officials in five southern states had registered 215,000
blacks. 20
While great progress was being made on the voter registration front during this period,
there was still great resistance to efforts to comply with the civil rights statutes in many
parts of the Deep South. For example, I spent much of the summer of 1965 in Bogalusa,
Louisiana covering protest marches and investigating incidents of interference and
violence by the Klan with the rights of blacks under the new civil rights statutes. The FBI
investigated these incidents, as well. As a result, we filed a case in federal court in New
Orleans to stop these actions by the Klan. John Doar and my Section Chief, Bob Owen,
presented the case to a three judge court. The Court agreed our evidence against the
Klan was overwhelming. Judge Wisdom wrote, "This is an action by a nation against a
klan...We find that to attain its ends, the klan exploits the forces of hate, prejudice and
ignorance. We find that the klan relies on systematic economic coercion, varieties of
intimidation and physical violence in attempting to frustrate the national policy expressed
in civil rights legislation." 21
18
United States v. Alabama, 252 F. Supp. 95, 102-103 (M.D. Ala. 1966). A copy of the brochure,
which includes the Governor's picture, is set out in the opinion.
19
United States v. Alabama, 252 F. Supp. 95 (M.D. Ala. 1966). The Supreme Court of the United
States declared the poll tax unconstitutional in Harper v. Virginia, 383 U.S. 663 (1966) in a case
filed prior to the passage of the Voting Rights Act.
20
John Doar, "The Work of the Civil Rights Division in Enforcing Voting Rights Under the Civil
Rights Acts of 1957 and 1960," 25 Fla. St. U. L. Rev. 1, 14 (1997).
21
United States v. Original Knights of the Ku Klux Klan, 250 F. Supp. 330, 334 (D. La. 1965).
7
The first major election to be held following passage of the Voting Rights Act was to be
the Democratic Party primary election on May 3, 1966. 22 John Doar worried that this
election could present some real challenges. This would be the first election since
Reconstruction in which large numbers of Blacks would be voting, in which there would
be black election officials, and in which there would be black candidates for office. So,
true to his style in preparing cases for trial, in March 1966, John Doar organized a major
effort by the Division attorneys to conduct a comprehensive fact-finding mission in the
various counties where federal examiners were registering voters, to visit with probate
judges and other officials, and to prepare an assessment of the county's situation so we
could be prepared for any eventuality on election day.
Here is what he wrote, in part, to the lawyers who would be participating in this effort:
"This Division's most important project in the immediate future are the impending
Alabama elections on May 3. Our efforts to date to see that Negroes are able to register
to vote will lose most of their meaning if Negroes, in fact, are not able to vote and to
have their votes properly counted. We want to be certain that we have used every
resource and method available to us to ensure free and fair elections in Alabama. Those
of you who are assigned to work on the project should give it priority over all other work
which you have. " 23
On March 3, 1966, sixteen Division attorneys left for the thirty Alabama counties with
federal examiners, each with a notebook in hand with complete information about the
county, Alabama election laws, officials, and relevant voter information. They were to
report back to me on the results of their investigation, and I would report to John.
We might well have expected that a major challenge would confront us in the Dallas
County primary election. So, it was not surprising that John Doar had decided to be in
Selma on that Election Day, May 3. As in many of the other counties, the lines of voters
were long, and Blacks were voting in large numbers for the first time. The largest
number of voters in the history of Dallas County turned out for this election. 24
Dallas County still used paper ballots, and the ballot was extremely long. The ballot
contained the names of seventy-three candidates competing for twenty-four positions.
Five hundred federal observers, appointed under the Voting Rights Act, were present to
observe the voting in the eighty boxes in Dallas County that day. The most publicized
and hotly contested was the race for Sheriff. Jim Clark, the symbol of segregation, was
22
The Supreme Court upheld the validity of the Voting Rights Act on March 7, 1966. State of S.
C. v. Katzenbach, 383 U.S. 301 (1966). In Free at Last to Vote, the Alabama Origins of the 1965
Voting Rights Act, (University Press of Kansas, 2007), Professor Brian Landsberg uses the voting
cases and the responses of the three federal Judges in Alabama as background for an extensive
history of the Act.
23
Copy of undated memo in my files.
24
Prior to the Voting Rights Act, there were about 15,000 voters in Dallas County, of whom about
1,500 were black. However between August 10, 1965, the first day federal examiners took
applications, and April 10, 1966, federal examiners had registered 8,670 blacks. United States v.
The Executive Committee of the Democratic Party of Dallas County, Alabama, 254 F.Supp. 537
(1966), Complaint, Par. 5.
8
seeking another term. He was opposed by the more moderate Public Safety
Commissioner, Wilson Baker.
The ballot counting proved to be slow going, especially for the first-time black officials.
By the early morning hours of the next day, May 4, the ballot counting had still not been
completed in six boxes with overwhelmingly black voters. The Dallas County Democratic
Party Executive Committee, all white, then instructed the acting sheriff to pick up the
boxes as they were and to impound them. The following day, the Executive Committee
designated representatives to complete the count, examine the ballots, the signed voter
lists and contents of the boxes, and recommend whether the ballots should be counted.
Three of the representatives recommended that the ballots in the boxes they examined
should be counted. Yet, the Executive Committee ruled that, because of claimed
irregularities that they had found, none of the votes in these six boxes should be
counted.
John Doar realized that swift action was necessary to do everything possible to ensure
that the ballots in the six boxes would be counted. Most of the Blacks who voted in this
election had been registered by federal examiners, and the right to have their votes
counted, as established by the Voting Rights Act, was paramount. Furthermore, without
the inclusion of the ballots in these six boxes, the results of the race for Sheriff were
relatively close. Wilson Baker had 7,582 votes, Jim Clark had 7,445, but because of the
1,060 votes split between the other two candidates, neither Baker nor Clark would have
a majority, and there would have to be a runoff. However, the inclusion of the votes in
the six boxes would result in a victory for Baker. 1,412 of the 1,515 votes cast in the six
boxes were for Baker; Clark received 76, and the other two candidates 27. Baker would
have a clear majority.
Under John's direction, the Division lawyers worked through the night to prepare the first
federal law suit under the Voting Rights Act - to ensure that the votes of the black
citizens in the contested boxes would be counted. The complaint was filed the next day,
along with an Application for a Restraining Order to preserve the ballots and voting
records intact and to ensure that federal observers would be present at any proceedings
where the ballots might again be inspected or recounted. Judge Johnson signed the
Restraining Order and set the case for a hearing on May 16 before Judge Daniel
Thomas, who was then the Chief Judge of the Southern District of Alabama.
We set about preparing for trial. We were concerned about Judge Thomas, who would
hear the case, because he had generally ruled against us. He had been reversed
several times by the U.S. Court of Appeals for the Fifth Circuit for not granting stronger
relief in the Mobile school desegregation case.
The six ballot boxes were brought to the Dallas County Courthouse. Representatives of
the Sheriff's Office and the U.S. Marshal were there to watch them around the clock. The
FBI photographed the contents of each of the boxes. With the able work of our research
analysts, we carefully inventoried the contents of each of the contested boxes, the
ballots, and the poll and voter lists.
On May 17, we began a two-day hearing before Judge Thomas. John gave me the
responsibility of trying the case and he sat with me as co-counsel. Our task was to
demonstrate that while there may have been some minor technical errors committed by
the officials, there was no evidence of fraud or other serious violations of the election
9
laws which could justify the drastic action taken by the Executive Committee. To that
end, we elicited testimony from polling officials, federal observers, and our local Civil
Rights Division attorney. John gave a fine closing argument. He said, in part: "The right
to vote is the foundation of this country. If it can be swept away by an arbitrary,
wholesale action of this Committee, it doesn't mean very much."
Judge Thomas agreed. In his published opinion, he wrote: "The Court listened to
testimony concerning alleged defects for almost two days. The Court did not hear at that
time any evidence which would indicate that votes were bought or sold, that boxes were
stuffed, or that there was any misconduct on the part of polling officials or voters which
could be construed as even approaching fraud." 25
He found that the discrepancies which existed were minute in nature, attributable to the
inexperience of the election officials, and could not justify the rejection of any of the six
boxes or the legal ballots that had been cast. Looking to Alabama law, he ordered that
the results be recertified to include the ballots in the six boxes, subject to any individual
challenges that an individual voter's intent had not been carried out. Wilson Baker
became Sheriff of Dallas County. The Division, under John's leadership, had met its first
big test under the Voting Rights Act with flying colors.
A brief epilogue of progress: In the 1988 Dallas County elections, three of the five
elected county commissioners—a majority—were black. On January 16, 1989, the
Commissioners were sworn in by the first black federal judge to serve in Alabama,
Judge U.W. Clemon.
In 2012 President Obama presented John Doar with the Presidential Medal of Freedom,
this nation's highest civilian honor. John passed away on November 11, 2014. He was
ninety-two.
25
United States v. The Executive Committee of the Democratic Party of Dallas County, Alabama,
254 F.Supp. 537, 539 (1966).
10
(MIS)TRUSTING STATES TO RUN ELECTIONS*
Joshua A. Douglas
Recent election law litigation at the U.S. Supreme Court reflects an unspoken,
pernicious trend. Without identifying a specific new rule, the Court has been unjustifiably
deferring to states in their election administration. The underlying message of recent
Supreme Court decisions is that states have tremendous power to administer elections
and that Congress should generally stay out of the elections business. But that is a
mistake. Placing too much power in states to administer elections is both constitutionally
wrong and practically dangerous.
The past few years have been tumultuous for election law at the Supreme Court. The
Justices have considered some of the most controversial issues in how our elections are
run, from voter identification 1 to campaign finance 2 to race relations and the Voting
Rights Act. 3 In the process, the majorities in these cases have generally deferred to the
states to run elections as they see fit but have not given this same light-touch judicial
review to federal election rules.
Although not explicitly part of the analysis, the Court is achieving the goal of deferring to
states in two ways, one substantively and the other procedurally: first, the Court has
credited almost any assertion of a state interest to protect the integrity of the election,
failing to dig deeper into the actual rationale for the state's regulation of the voting
process. This differs from the Court's approach to federal election statutes and is
contrary to historical practice. Second, the Court has discouraged facial challenges to
state voting laws but has sustained facial challenges to Congressional enactments,
thereby using a procedural mechanism to uphold state rules but invalidate federal laws.
These two themes, both unstated, infiltrate the recent case law. They also help to
reconcile the Court's seemingly disjointed jurisprudence.
The first of these under-the-surface approaches is substantive, as the Court is holding a
thumb on the scale in favor of states in the constitutional analysis by failing to scrutinize
meaningfully the actual rationale behind a voting rule. When considering the first prong
of the constitutional test and assessing the state's interest, the Court has credited at face
value a state's general assertions of "election integrity" for the voting process. The Court
fails to probe the actual, more specific reasons for a law, which is often to gain partisan
advantage for one side. At the same time, it has scrutinized more carefully Congress's
justifications for its voting regulations. 4 This demonstrates how the analysis for state
* This is a draft of the introduction to an article which will be published in 92 Wash. U. L. Rev. ___
(forthcoming 2015); the draft of the full article is found at: http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2405396.
1
Crawford v. Marion County Election Bd., 553 U.S. 181 (2008).
2
Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 333 (2010).
3
Shelby County, Ala. v. Holder, 133 S.Ct. 2612 (2013).
4
Shelby County, Ala. v. Holder, 133 S.Ct. 2612 (2013). The only area in which this differential
deferral has not occurred consistently is campaign finance, where the Court has been skeptical of
11
election administration is distinct. That is, the Court is treating state election
administration rules differently from its approach to other election-related laws, giving
less meaningful scrutiny to a state's voting processes.
The second judicial maneuver that demonstrates the Court's deferral to state election
administration laws is its procedural approach to facial and as-applied challenges. 5 A
facial challenge is a claim that the law is unconstitutional in all of its applications,
whereas an as-applied challenge asserts the invalidity of the law only with respect to
how it operates as to that specific plaintiff. 6 At first glance, it is difficult to reconcile the
interpretation of this procedural question in cases such as Shelby County v. Holder
(Voting Rights Act) 7, Citizens United v. FEC (campaign finance) 8, and Crawford v.
Marion County (voter ID), 9 as well as other lower-profile decisions, 10 as the analysis has
diverged markedly regarding the propriety of facial or as-applied challenges. But a closer
look reveals an interesting trend: the Court allows only piecemeal as-applied litigation
for state voting rules but will sustain broad facial challenges to other election laws. The
usual result is judicial sanctioning of state voting regulations but a concurrent invalidation
of federal election rules. This framework thus provides a procedural mechanism to defer
to states in how they run their elections.
The Court's broad deference to state election administration is concerning for two main
reasons. First, it is doctrinally inconsistent with the structure of the United States
Constitution. Second, it is alarming given the increasing number of restrictive and
partisan-laden voting laws states are enacting.
Deferring to states while more closely questioning Congress's justifications for an
election rule is inconsistent with our constitutional design. The Court's shift of power from
Congress to the states to regulate elections is wrong under the U.S. Constitution, which
provides that states run our elections but that Congress has important oversight
responsibilities. 11 The Elections Clause of the U.S. Constitution says so explicitly: the
states shall "prescribe" the "Times, Places, and Manner" of holding elections for federal
office, but Congress can "make or alter" such regulations as it deems necessary. 12
both Congress and the states. See, e.g., Citizens United v. Fed. Election Comm'n, 558 U.S. 310,
333 (2010); Randall v. Sorrell, 548 U.S. 230, 261-62 (2006).
5
For an extensive discussion of the difference between facial and as-applied challenges in
election law, see Joshua A. Douglas, "The Significance of the Shift toward As-Applied Challenges
in Election Law," 37 Hofstra L. Rev. 635, 640 (2009).
6
See Alex Kreit, "Making Sense of Facial and As-Applied Challenges," 18 Wm. & Mary Bill Rts. J.
657, 657 (2010).
7
Shelby County, Ala. v. Holder, 133 S.Ct. 2612 (2013).
8
Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 333 (2010).
9
Crawford v. Marion County Election Bd., 553 U.S. 181 (2008).
10
See, e.g., Washington State Grange v. Washington State Republican Party, 552 U.S. 442
(2008).
11
U.S. Const. art. I, §4.
12
Further, the Fourteenth Amendment, as well as other voting-specific amendments,
provides enforcement power to Congress to ensure equality in voting. 13 This means,
quite pointedly, that the federal government plays an important role in how our elections
operate. The current judicial approach, however, elevates the state's role and minimizes
the ability of Congress to oversee the election process.
The Court's approach is also dangerous, as it emboldens state legislatures to enact
partisan voting rules in an effort to influence electoral outcomes. States across the
country, particularly when one party controls both houses and the governor's mansion,
are increasingly passing strict voting laws. 14 Many of these regulations have an
underlying partisan tinge, with Republicans supporting laws aimed at "voter integrity"
and Democrats pushing laws intended to ease voter restrictions – both in an effort to
help the parties' electoral chances. 15 Of course, the legislators usually do not justify the
laws based on their partisan effects; they instead cite a generalized interest such as
"election integrity." By deferring to this state interest without careful scrutiny, these laws
receive less meaningful judicial oversight. In turn, states will become even bolder in the
kinds of election practices they promulgate. But election outcomes should not depend on
partisan-laden voting rules. Partisan-based rules that dictate how our elections operate,
and thus who wins, are dangerous for democracy, as they allow incumbents to entrench
themselves in power and undermine the very foundation of our democratic system. 16 To
eradicate politically-motivated voting laws, the Court should ratchet up the level of
scrutiny for all voting regulations to ensure that Congress and state legislatures justify
their election laws with actual, specific evidence of the reason for the rule.
12
U.S. Const. art. I, §4.
13
U.S. Const. amend. XIV cl. 5; see, e.g., U.S. Const. amend XV cl. 2.
14
See Justin Levitt, "Election Deform: The Pursuit of Unwarranted Electoral Regulation," 11
Election L.J. 97, 98 (2012) (noting that "the new spate of state regulations include several highly
controversial laws that appear to exact real burdens on real Americans, making it more difficult for
citizens to exercise their rights to vote"). For example, both Texas and North Carolina have
recently passed new voters laws that are under legal challenge. See Aaron Blake, "Justice
Department Will Challenge Texas Voter ID Law," Washington Post (Aug. 22, 2013, 3:05 PM),
http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/22/justice-department-willchallenge-texas-voter-id-law/; Charlie Savage, "Justice Department Poised to File Lawsuit over
Voter ID Law," N.Y. Times, (Sept. 30, 2013), http://www.nytimes.com/2013/09/30/us/
politics/justice-department-poised-to-file-lawsuitover-voter-id-law-in-north-carolina.html; Nicholas
Confessore, "A National Strategy Funds State Political Monopolies," N.Y. Times, Jan. 11, 2014,
http://www.nytimes.com/2014/01/12/us/politics/a-national-strategy-funds-state-political
monopolies.html (noting the rise in one-party control in the states and the corresponding partisan
manipulation of voting rules).
15
See, e.g., Shelley de Alth, "ID at the Polls: Assessing the Impact of Recent State Voter ID Laws
on Voter Turnout," 3 Harv. L. & Pol'y Rev. 185 (2009) (noting that voter ID laws tend to
disadvantage Democratic voters more than Republican voters).
16
See Lori A. Ringhand, "Voter Viewpoint Discrimination: Reconsidering a First Amendment
Challenge to Voter Participation Restrictions," 13 Election L.J. 288 (2014).
13
14