Part 7
In a “Nixon goes to China” moment (more than seven years before Nixon in fact went to China), it was Lyndon Johnson himself—now President following the assassination of JFK—who finally cajoled Congress into passing the sweeping Civil Rights Act of 1964.
LBJ, longtime leading man in the Southern Democratic bloc in Congress, overcame a 54-day filibuster of the bill and got it enacted through the power of his personality, his interpersonal force of will, and by leveraging his close relationships with Russell and other influential Democrats, Southern and Northern—and, crucially, with the support and collaboration of Republican leaders, including LBJ’s close friend, Senate Republican Leader Everett Dirksen of Illinois (with whom Johnson, as President, usually spoke several times per day and often drank bourbon in the evenings).
The 1964 Act—
Prohibited all discriminatory practices in elections where candidates for Federal office are on the ballot and enhanced the voting rights enforcement tools available to the Justice Department (Title I);
Declared that all persons have a right to “the full and equal enjoyment” of places of public accommodation affecting commerce, such as hotels, restaurants, theaters, and similar commercial establishments, “without discrimination or segregation on the ground of race, color, religion, or national origin,” and, relying on Congress’s Commerce Clause power as it had been expansively interpreted in recent decades by the Supreme Court, created Federal causes of action for injunctive relief against anyone, even those acting privately, who interfered with the exercise of this right (Title II);
Prohibited discrimination on the basis of race, color, religion, or national origin in the use of public facilities owned or managed by State and local governments (Title III);
Created a legal process and provided Federal resources to support desegregation of public schools (Title IV);
Renewed and strengthened the Civil Rights Commission (Title V);
Prohibited discrimination on the basis of race, color, religion, or national origin in any program or activity receiving Federal financial assistance (Title VI);
Relying again on Congress’s power to regulate interstate commerce, prohibited discrimination because of race, color, religion, sex, or national origin in employment actions by businesses with at least 25 employees (later reduced to 15), in job referrals by employment agencies, in membership in labor unions, in participation in employment training programs, and in other labor rights conferred or negotiated by unions or labor committees, and established the Equal Employment Opportunity Commission and associated procedures to address complaints of alleged employment discrimination (Title VII); and
Established the Community Relations Service to assist local communities and affected persons in conciliating and resolving disputes over alleged discriminatory practices that, in the judgment of the Service, may threaten peaceful relations among the citizens of the community (Title X).
Although the 64 Civil Rights Act was based on legislation first proposed by President Kennedy in June 1963, and though LBJ had urged Congress to pass the Act as a memorial to the slain President, it’s very doubtful that Kennedy, had he lived, could have gotten the Act through Congress as LBJ did. He lacked LBJ’s relationships with Congressional leaders, especially the Southern bloc and Dirksen, and he almost certainly wouldn’t have deputized LBJ to take the lead in shepherding the legislation on behalf of his administration. The Kennedys didn’t trust LBJ, and JFK’s senior advisers had no affinity for Johnson’s full-bodied style of politics.
The year after securing enactment of the Civil Rights Act, and now fully in command of his own administration with his own advisers, LBJ pushed the landmark Voting Rights Act of 1965 through both Houses of Congress. With the help of strong political tailwinds generated by the march on Selma, MLK’s letter from the Selma jail, and the events of Bloody Sunday on the Edmund Pettus Bridge, LBJ achieved passage of the VRA in just 140 days.
The Voting Rights Act included a broad general provision (section 2) prohibiting all States and political subdivisions of States, such as counties and local voting districts, from using any voter qualification requirement or standard, practice, or procedure that denies or abridges the right of citizens to vote on account of race or color in any election, Federal, State, or local. And it provided for the appointment of Federal examiners to oversee voter registrations and the voting process, including through the deployment of Federal poll watchers, in cases where the Justice Department has brought an enforcement action or determined based on complaints from at least 20 local citizens that there’s reason to believe a State or local jurisdiction has engaged in prohibited voting discrimination.
The VRA also contained general provisions—
(i) prohibiting anyone acting under color of State law from preventing voting by eligible voters or any person, whether or not acting under color of law, from threatening or intimidating voters or those assisting voters;
(ii) prohibiting all manner of voter fraud in Federal elections or efforts by local election officials to give false information to a Federal examiner or to falsify voter registration records or voting results;
(iii) creating a special litigation process for the Justice Department to challenge the constitutionality of poll taxes, which Congress found had had a discriminatory effect on voting;
(iv) protecting citizens educated in American schools conducted in a foreign language from having to pass English language literacy tests;
(v) providing for criminal and civil sanctions and enhanced enforcement authorities against anyone violating the Act; and
(vi) creating special procedures for States and political subdivisions of States to challenge applications of the Act in the Federal District Court in D.C.
But the core of the Act, and the most innovative enforcement aspect of the law, applied only to certain “covered” jurisdictions—States, counties, or other local voting districts that had a record of suppressing voting by racial minorities. These jurisdictions were identified by a “coverage formula” set forth in section 4 of the VRA. Initially, the covered jurisdictions were those States or political subdivisions of States that had used literacy or knowledge tests, “good character” showings, or similar voter qualification requirements as of November 1, 1964 and where less than 50% of the voting age population of the jurisdiction had been registered to vote on that date or had voted in the November 1964 Presidential election. The first covered jurisdictions in 1965 were mostly States and counties of the former Confederacy.
The Act imposed two special burdens on the covered jurisdictions:
First, section 4 prohibited them from using voting tests or qualification devices unless they could prove to the satisfaction of a three-judge panel of the Federal District Court in D.C. (with a direct appeal to the Supreme Court) that they hadn’t used such tests or devices for the purpose or with the effect of denying voting rights on the basis of race or color within the last five years.
Second, section 5 subjected covered jurisdictions to an unprecedented “preclearance” process whereby they were required to apply to the Justice Department and, if necessary, to a three-judge panel of the Federal District Court in D.C. (again with a direct appeal to the Supreme Court) for advance approval before they could implement any proposed changes in their voting qualifications or procedures.
Congress allowed covered jurisdictions to be released from the preclearance requirement (referred to as “bail out”) if they could prove to the three-judge court that they had remained free from voting rights violations for a specified period (initially five years and later extended to ten), and it created a process for bringing new jurisdictions under preclearance coverage (“bail in”) if a court found they had engaged in recent voting discrimination.
Immediately upon enactment of the VRA, one of the covered States, South Carolina, challenged the constitutionality of the coverage formula and preclearance process in an original action brought against the Attorney General in the Supreme Court. South Carolina claimed, among other things, that these provisions of the Act violated “the principle of the equality of States.”
The Court invited all interested States to file amicus briefs either supporting or opposing South Carolina’s challenge. Alabama, Georgia, Louisiana, Mississippi, and Virginia filed briefs supporting South Carolina, and 21 States, led by California, Illinois, and Massachusetts, opposed the challenge. Seven States, in addition to South Carolina, participated in the oral argument.
In his opinion for the Court upholding the Act in South Carolina v. Katzenbach (1966), Chief Justice Warren emphasized that the constitutionality of the law “must be judged with reference to the historical experience which it reflects.” The legislative record before Congress persuaded large majorities in both Houses that racial voting discrimination in the South remained “pervasive,” “flagrant,” “widespread,” and “rampant,” despite decades of case-by-case litigation. Enforcement through court cases had proved to be expensive, time-consuming, and nearly always temporary in effect due to the ceaseless machinations of recalcitrant jurisdictions bent on finding new ways of avoiding the restrictions of court decrees.
In the light of this history, Congress determined that achieving, once and for all, full enforcement of the Civil War Amendments required more systematic and prophylactic measures than any previously adopted, including the extraordinary requirement of advance approval to prevent these jurisdictions from implementing new forms of voter suppression.
Stressing the generous and highly deferential standard of judicial review properly owed to Congress’s exercise of its enforcement powers under the Fourteenth and Fifteenth Amendments, the Justices rejected South Carolina’s arguments and readily deferred to the judgment made by Congress in the VRA. In doing so, Chief Justice Warren quoted with approval an 1879 decision of the Court, Ex Parte Virginia, which upheld the indictment of a Virginia State judge for refusing to seat African Americans on juries in violation of Federal law:
“Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.”
The lone dissenter in South Carolina v. Katzenbach was the erstwhile Klansman, Hugo Black. He objected to the VRA’s section 5 preclearance requirement on the ground that it “so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless.” He insisted that:
“if all the provisions of our Constitution which limit the power of the Federal Government and reserve other power to the States are to mean anything, they mean at least that the States have power to pass laws and amend their constitutions without first sending their officials hundreds of miles away to beg federal authorities to approve them.”
Justice Black found it “inconceivable” that “such a radical degradation of state power was intended in any of the provisions of our Constitution or its Amendments.”
Black’s objections echoed the most retrograde voices from the Court of the 19th century and would have lit the breast fires of the Rebel representatives at the constitutional convention of the CSA in Montgomery, Alabama in March 1861.
We should all be thankful Black’s view didn’t prevail in 1966. Because the VRA’s preclearance process prevented Southern States and counties from putting new potentially discriminatory voting practices into effect in the first place, and didn’t depend on after-the-fact court judgments, it proved to be, at last, a truly efficient and broadly effective mechanism for stamping out voting discrimination.
As a result of this feature, the Act had a profoundly positive effect on voter registration and turnout of black voters in the South. At the time of the VRA’s enactment in 1965, less than 20% of black citizens of voting age in Alabama were registered to vote, less than 32% in Louisiana, and less than 7% in Mississippi. Following passage of the Act, the registration and turnout levels for blacks in the South rose significantly and in recent years have reached or exceeded parity with those of white voters. Between 1965 and 2004, according to evidence collected by Congress in 2006, there was a ten-fold increase in the number of blacks elected to office in six Southern States.
There seems no room for doubt that these remarkable improvements confirm the potency of comprehensive national civil rights legislation—and particularly the prophylactic tool of preclearance.
When first enacted, the preclearance requirement was supposed to be in effect for only five years. But Congress reauthorized and extended it several times—in 1970 for 5 years, in 1975 for 7 years, and in 1982 for 25 years. The coverage criteria remained the same in substance, based on the use of voting tests or special voter qualification requirements and low percentages of voter registration or turnout, but Congress required that the criteria be applied by reference to two further Federal elections, 1968 and 1972, in addition to 1964. The added reference dates brought additional States and counties under the preclearance process. The Supreme Court upheld the first three reauthorizations.
Most recently, in 2006, Congress reauthorized the requirement again for a further 25 years, keeping 1972 as the last reference year for identifying covered jurisdictions. The 2006 reauthorization was based on a fresh legislative record showing abundant evidence of continued voting discrimination against racial and language minorities in the covered jurisdictions during the years since the 1982 reauthorization, including through the use of so-called “second-generation barriers” to equal voting rights for minorities, such as race-focused gerrymandering. The Republican Chairman of the House Judiciary Committee at the time, Congressman Jim Sensenbrenner of Wisconsin, declared that the 2006 VRA reauthorization had undergone “one of the most extensive considerations of any piece of legislation” to come before Congress in the 27 years he had served as a Member of the House.
The House passed the 2006 legislation by a vote of 390 to 33, and the Senate 98 to 0. In signing the bill into law, President George W. Bush praised it as “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.”
It was perhaps the single strongest declaration of national unity ever delivered on a core civil rights matter from the political Branches of our Republic.
At that point, however, it was back to the future in the Supreme Court—head of the Branch of Government least accountable to the People.
In Shelby County v. Holder (2013), a five-Justice majority struck down the VRA’s coverage formula, as reauthorized by Congress in 2006, because, Chief Justice John Roberts now declared, the formula had somehow, over time, become inconsistent with the “fundamental principle” of “equal sovereignty of the States” (the same “principle” South Carolina had unsuccessfully invoked in challenging the original Act).
The majority concluded that, although “no one doubts” that voting discrimination “still exists,” the coverage formula itself was decades old and the fresh record compiled by Congress in 2006, while revealing that discriminatory practices were still widespread in the covered jurisdictions, was deficient because it didn’t show a relevant current distinction in voter turnout and voting rights violations between jurisdictions covered by the formula and others that were not. Therefore, in the majority’s view, Congress no longer had a sufficient basis to impose a heightened requirement in Federal law on some States versus others.
In her dissent for four Members of the Court, Justice Ginsburg excoriated the majority for refusing to respect Congress’s judgment, amply supported by volumes of evidence showing a persistent tendency to discriminate by the covered jurisdictions, that retention of the existing coverage formula and preclearance process was needed to maintain the progress that had been achieved toward full voting rights and to forestall the potential for backsliding. She thought it put an undue double burden on Congress to require that the legislative record establish not only the continuation of discriminatory practices in the covered jurisdictions but also the absence of discrimination in the other States.
The majority’s insistence that all States be treated equally under the Civil War Amendments absent proof that the States singled out by Congress are currently violating the Constitution and that they are the only States presently in violation throttles and denigrates Congressional enforcement authority.
It treats Congress’s enforcement legislation like a court decree, which must be tailored and limited to preventing or remedying a specific proven violation or threatened violation of law.
It also ignores the weight of history. Arising as they did from the Rebellion of the Southern States and from the sectional violence and upheavals of the Reconstruction Era, the Civil War Amendments were ratified precisely so that Congress could act by law to identify and eliminate pockets of regional resistance to the principle of full and equal civil rights for all Americans. These Amendments, of course, presuppose that Congress, acting in the light of historical experience, would need to place special requirements, including prophylactic measures, on particular regions of the country.
Congress had a reasonable basis for continuing to do so in 2006: The covered jurisdictions had consistently resisted Federal voting mandates for decades, and Congress had assembled considerable evidence from which to conclude that in recent years these jurisdictions had demonstrated a clear and persistent tendency toward recalcitrance. That should be enough.
The third major Federal civil rights law enacted during the Johnson administration was the Fair Housing Act of 1968. It prohibited discrimination and intimidation “because of race, color, religion, or national origin” in the sale, purchase, renting, advertising, and financing of most housing in the U.S.
(It should be noted that the Federal civil rights revolution of the 1960s also produced a legal transformation at the State level. The States have followed Congress’s lead and have adopted parallel State-law non-discrimination mandates that cover much the same areas addressed by the Federal statutes, except that the State mandates may be broader in scope and application, since the States’ police powers are general in nature and need not be tethered to the regulation of commerce.)
Congress’s passage of comprehensive civil rights laws and the continuing dedicated enforcement of these laws by the Civil Rights Division of DOJ (and in the case of the Fair Housing Act, by the Department of Housing and Urban Development), as well as by private plaintiffs and civil rights advocates, and the adoption and enforcement of even broader non-discrimination mandates by the States, represent the true consummation of U.S. Grant’s victory at Appomattox and of the principles and policies of Reconstruction.