They never linked arms to sing “We Shall Overcome.” No one smacked them on the head with a club for trying to vote. They didn’t march into a phalanx of armed state troopers who beat them like animals.
But the forces that mobilized against demonstrators in Selma, Alabama, 50 years ago launched a movement of their own that relied on an audacious strategy: They blew a hole through the civil rights movement’s most revered law by borrowing the same tactics protesters used in Selma.
When President Barack Obama and civil rights veterans gather this weekend to celebrate the 50th anniversary of the Selma campaign, many people will focus on the pivotal moments that sparked the passage of the 1965 Voting Rights Act, once known as the “crown jewel” of the movement.
Yet less is known about the long-term campaign that was launched against the Voting Rights Act just weeks after its passage. That campaign culminated in 2013 when a conservative majority on the U.S. Supreme Court dismantled the law’s most effective weapon against racial discrimination in voting.
The court’s decision — in Shelby County, Alabama v. Holder — spawned the most systematic effort to restrict voting since the rise of Jim Crow segregation in the late 19th century, says Ari Berman, a voting rights expert and a writer for The Nation magazine.
“The jewel has been smashed,” Berman says of the voting law. “The act is in tatters.”
Others, though, say the Voting Rights Act wasn’t gutted, just refined. All Shelby did was render Section 5 of the law obsolete. Section 5 was a provision that required states with the worst record of voting discrimination to get permission from federal officials before introducing any voting changes.
“It wasn’t us,” says Hans A. von Spakovsky, a senior legal fellow with the Heritage Foundation in Washington, when asked how he and others changed the voting law. “It was the fact that times have changed and there simply was no longer any evidence that the special provisions of Section 5 were needed.”
Times may change, but the lessons of Selma are timeless. Here are three ways that some historians say opponents of the Voting Rights Act flipped the script on protesters in Selma.
Ride the resentment
When people talk about the “Selma movement,” they typically get the dates wrong. Many think the Selma campaign was confined to a couple of months in early 1965: the arrival of the Rev. Martin Luther King Jr.; the “Bloody Sunday” march on the Edmund Pettus Bridge; the Selma-to-Montgomery march capped by King’s triumphant speech.
Yet the Selma campaign for voting rights had been going on since the 1920s, when black residents in the town formed the Dallas County Voters League. Over the years, other civil rights groups like the NAACP and the Student Nonviolent Coordinating Committee entered Selma for the same purpose. Some blacks were so angry over being denied the right to vote through a combination of literacy tests, poll taxes and raw violence that they had been risking their jobs, their homes and even their lives for years.
“When King arrived, he found a movement already in place, and it had been there for a long time,” says Gary May, a University of Delaware historian and author of “Bending Toward Justice,” a rousing account of the movement in Selma that led to the passage of the Voting Rights Act.
People call King a hero today, but he was also something else: a surfer.
He rode waves of anger that had been building among black people in Selma to an improbable victory. He gave voice to it and helped channel it, but the momentum had been building for years.
King wasn’t the only leader in Alabama who knew how to surf. George Wallace, Alabama’s segregationist governor, could channel anger as well.
The passage of the Voting Rights Act sparked a seething sense of resentment among some white Southerners. They felt as if the South had been invaded by outsider agitators and activist judges. The collapse of Jim Crow segregation was difficult for some to accept. That anger had to go somewhere.
Wallace was one of the first politicians to harness that anger. When he ran as an independent for the 1968 presidential nomination, historians say, he built a national following by denouncing civil rights victories like the Voting Rights Act.
“A principal part of his campaign was to denounce activist judges who enforced civil rights laws,” says William Yeomans, a law and government fellow at the American University College of Law in Washington.
Richard M. Nixon, who also ran for president in 1968, borrowed from Wallace’s playbook, Yeomans says. His successful campaign was built on an electoral approach that historians would later call the “Southern strategy.”
Some say the Southern strategy remade the South into a Republican stronghold.
“It was a calculated, extraordinarily cynical and unfortunately successful effort by the Republican Party led by Nixon to appeal to the fears and resentments of whites who were upset by the civil rights movement and the laws that were passed in the ’60s,” Yeomans says.
The Southern strategy, though, didn’t just depend on resentments stirred by campaigns like Selma. They had their origins in the 19th century, says Keith Finley, author of “Delaying the Dream: Southern Senators and the Fight against Civil Rights.”
When Southern senators opposed the passage of the Voting Rights Act in 1965, they resurrected some of the same rhetoric Southern politicians used in the 19th century to protest Reconstruction, a brief period of progressive change that followed the Civil War.
Federal officials remade the South during Reconstruction by passing a series of civil rights laws and constitutional amendments to empower newly freed slaves. They also placed Northern troops in the South to enforce the new laws.
Southern politicians fought the civil rights laws, and the Supreme Court eventually wiped them out in the late 19th century, paving the way for the rise of Jim Crow segregation.
“[Those 19th century politicians] said it was not a racial issue, it was a constitutional issue — it was unfair for one region to be under this punitive legislation,” says Finley, who teaches history at Southeastern Louisiana University.
After the Voting Rights Act was passed in August 1965, the state of South Carolina filed a challenge before the Supreme Court making similar arguments. They said the voting law encroached on states’ rights and violated the principle of equality among the states.
The Supreme Court decisively ruled against South Carolina in 1966, preserving the entire Voting Rights Act. Yet the notion that the voting law unfairly persecuted the South never dissipated.
When the Supreme Court dismantled the central provision in the Voting Rights Act in 2013, Chief Justice John Roberts’ opinion echoed arguments made by the voting law’s opponents in the ’60s. He wrote that the coverage formula for Section 5, which forced nine Southern states to get “preclearance” from federal officials before making any voting changes, was unconstitutional because it violated “the fundamental principle of equal sovereignty among the states.”
Gregory B. Craig, a former White House counsel under President Obama, told the Washington Post after the decision that Roberts’ opinion recycled arguments from the Civil War era in 19th century America.
“This decision resurrects the discarded proposition that states’ rights are more important than individual rights and that federal efforts to protect citizens’ rights should defer to the sovereignty of the states,” he said.
The people in Selma were so tenacious because they had been so angry for so long. The forces that mobilized against the Voting Rights Act used anger as their fuel as well.
Not all movements create change; some undo them.
Use racial jujitsu
Before King arrived in Selma in 1965, some civil rights leaders thought the city could not be cracked. Segregationists had been so successful in terrorizing local blacks that one civil rights group marked an “X” on a map over Selma to indicate the town was a hopeless cause.
The demonstrators in Selma, though, learned how to turn the segregationists’ strength into their weakness. It was racial jujitsu, using the force of your opponent against them rather than taking them head-on.
The most pivotal moments in the Selma campaign came when the demonstrators seemed to be losing. State troopers attacking marchers on the Edmund Pettus Bridge; the murder of the Rev. James Reeb, a white minister who had come to Selma to join demonstrators; the beating of the Rev. C.T. Vivian, a King deputy, on the Selma courthouse steps — these were among the terror tactics segregationists had used successfully in Selma for years.
Yet all those moments were used by King and civil rights demonstrators to mobilize support for the passage of the Voting Rights Act.
Some of those who pushed for the unraveling of the act’s most potent weapon against discrimination used the same strategy, historians and voting rights experts say: They used the law’s strength against it.
The 1965 act was once viewed as untouchable. It was called the most successful civil rights law ever; King’s greatest victory. It fundamentally reshaped the South and opened up political opportunity to blacks, other racial minorities, students and the poor. No Selma, no Obama.
“You had fewer than 1,000 elected black officials in the nation prior to the [act] and there are 10,000 now, and not just black officials but Hispanic and Asian officials — all ranges of minority groups have been able to get elected,” says Berman, the voting rights expert and author of the upcoming book, “Give Us the Ballot: The Modern Struggle for Voting Rights in America.”
The stature of the law was such that it was overwhelmingly reauthorized by Congress four times, most recently in 2006. Opponents couldn’t take it head-on.
Instead, they took another approach, some historians say: They killed its central provision with kindness.
Opponents of the law’s Section 5 preclearance provision said the South, and America, had changed. The Voting Rights Act had accomplished its historic mission. They cited Obama’s presidency.
“There can be no doubt that the election of President Obama led many to believe that America can finally put to rest the racial narrative,” Finley says. “Opponents of the [act] naturally draw from Obama’s election the lesson that the laws of the civil rights era are no longer necessary.”
Some opponents also invoked King, adopting the rhetoric of the civil rights movement to argue for a change in the voting rights law.
Horace Cooper, a commentator and former constitutional law professor, says he opposed Section 5 of the law because it contradicted King’s vision of America. He says the purpose of the law was not to give a preference to any particular racial group.
“As Martin Luther King Jr. said, we want a society that judges people not by the color of their skin but by the content of their character,” says Cooper, co-chairman of Project 21, a network of black conservatives.
Cooper says Obama’s Justice Department had been using the voting law to pressure various states and municipalities into guaranteeing a prescribed number of racial minorities in political office.
“That’s not what Martin Luther King contemplated, and that’s not a colorblind society,” Cooper says.
The Justice Department once told the state of Georgia that it had to include an additional minority district when it redrew its congressional districts. It also ordered a Louisiana school board to guarantee that at least two minorities would be elected when it redrew its election districts. No discrimination was proved in any of the cases, he says.
“State autonomy means that local and state jurisdictions have the freedom to develop their own election policies, as long as they don’t discriminate,” he says.
Chief Justice Roberts lavishly praised the Voting Rights Act in his 2013 Shelby decision.
He pointed out that black voter turnout in five of six Southern states covered by Section 5 surpassed white voter turnout. He noted that Selma now had a black mayor. He invoked the Edmund Pettus Bridge march and other civil rights campaigns. He said that “our nation has made great strides” because of the Voting Rights Act.
Then he struck down the centerpiece of the Voting Rights Act.
Corral the courts
You could call him the unsung hero of the Selma movement.
His name was Frank Johnson, and he was a federal judge for the Middle District of Alabama. He granted King and others permission to march from Selma to Montgomery, a critical decision that helped deliver victory to Selma’s demonstrators. Johnson became an outcast among fellow white Southerners for that decision and others validating the civil rights movement. He received so many death threats that he and his family were assigned guards.
Not many people know about Johnson today. He was briefly depicted by actor Martin Sheen in the film, “Selma.” But he helped deliver victory in Selma. He ruled against segregationist laws throughout his career. He was part of a group of federal judges across the South who became indispensable allies for the movement.
Opponents of the Voting Rights Act also learned that it wasn’t just important to mobilize ordinary people; they had to corral the courts, says Yeomans, the American University fellow, who also worked as a counsel to the late Sen. Edward Kennedy.
Wallace, again, furnished the playbook. He called for “law and order” judges who wouldn’t legislate from the bench. Nixon made the same pledge. But Yeomans says it was another president who sealed the change — Ronald Reagan.
Reagan remade the judiciary in his own image, Yeomans says. Roberts worked for Reagan’s Justice Department; so did Supreme Court Justice Samuel Alito Jr.
Reagan also appointed two stalwart conservatives to the Supreme Court who serve today: Justices Antonin Scalia and Anthony Kennedy, both of whom show “enthusiastic support for whites challenging civil rights remedies,” Yeomans says.
“[Reagan’s] Justice Department turned on civil rights and tried to undo many of the gains of the previous 20 years,” Yeomans says. “Out of the crucible of the Reagan administration came the modern Supreme Court.”
And out of the court came a new judicial philosophy on race.
Roberts, Scalia, Kennedy and two other Republican-appointed justices — Alito and Clarence Thomas — have shifted the court to the right on decisions involving race. They have consistently viewed any laws that use race to address historic discrimination with suspicion.
Kennedy, seen as the swing vote on the court, has never voted to uphold an affirmative action plan and has written forcefully against the use of racial classifications in cases involving affirmative action and reverse discrimination, legal commentators say.
As the high court evolved, changes in the Voting Rights Act became virtually inevitable, historians say. Conservative lawyers knew they could bring challenges against the Voting Rights Act because justices would be sympathetic.
Roberts, in particular, had long expressed hostility to the scope of the voting law, they say.
When he was serving in Reagan’s Justice Department in 1981, Roberts helped draft a memo expressing concern that the Voting Rights Act was being used to force changes on jurisdictions where there was no intentional racism. Voting rights violations “should not be too easy to prove since they provide a basis for the most intrusive interference imaginable,” he wrote.
Since becoming chief justice, Roberts’ stance on civil rights laws in general has become clearer to legal scholars. CNN senior legal analyst Jeffrey Toobin once wrote that “the great project of the Roberts Court seems, at this point, to be the dismantling of the civil rights revolution in law.” Garrett Epps, another legal commentator, says Roberts gets “visibly furious” when government attempts to address racial equality are argued before the court.
J. Gerald “Gerry” Hebert, an attorney who has argued in defense of the Voting Rights Act for years, says Roberts’ appointment to the high court was ominous.
“He has had distaste for the Voting Rights Act for decades, and he finally got himself in a position to strike it down — and he did,” Hebert says.
Roberts himself has said that it’s unconstitutional to take race into account, whether it is intending to benefit or burden racial minorities, legal commentators say. He distilled that approach in 2007, when the court’s conservative majority ruled that a public school district in Seattle couldn’t consider race when assigning students to schools, even for the purposes of integration.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts said in an opinion that some critics said undermined the landmark 1954 Brown v. Board of Education decision, which ruled that the separate but equal doctrine was unconstitutional in education.
The demonstrators in Selma learned that one judge can make a difference. Their opponents learned that lesson as well.
What happens next to the Voting Rights Act will depend a lot on judges like Roberts, voting rights experts say.
The high court’s hostility to civil rights in general has forced voting rights attorneys on the defensive, Hebert says.
“The goal is to try to keep cases out of court,” he says.
Changes in the post-Shelby electoral landscape are already visible.
Since the Shelby decision, at least 10 of the 15 states that had been covered by Section 5 introduced restrictive voter laws that would make it harder for minorities to vote, according to the Brennan Center for Justice, a New York City-based think tank and advocacy group that focuses on voting rights. Voting rolls are being indiscriminately purged, early voting hours reduced and polling stations abruptly moved.
“Many Americans face an ever-shifting voting landscape,” the Brennan Center declared in one report. “The national struggle over voting rights is the greatest in decades.”
There is still some hope in the civil rights community that Section 2 of the Voting Rights Act can do some of the work that a neutered Section 5 can no longer do.
Section 2 forbids racial discrimination in voting, but it hasn’t been used to stop racially motivated voting laws before they go into effect like Section 5 once did.
Bringing lawsuits under Section 2 also shifts the burden of proof onto individuals, not legislative bodies.
Under Section 5, legislatures had to explain to federal officials why they wanted to make voting changes. Under Section 2, a person has to find a lawyer, go to court and spend a good deal of money to prove that a voting law is racially discriminatory.
Still, two voting rights challenges from Texas and North Carolina that invoke Section 2 are expected to come before the Supreme Court. But voting rights advocates are concerned the Supreme Court will render Section 2 obsolete by ruling that it can only be used to address intentional discrimination: Some state official or legislative body would have to be caught publicly admitting that voting changes are motivated by racist intent.
“Intentional racism is so hard to prove,” says Hebert, the voting rights attorney. “People know if they do use that kind of language it will ultimately doom their plan or legislation. They don’t talk in those terms. That’s why it’s extremely difficult to prove intent. You don’t have a lot of smoking guns out there.”
Von Spakovsky, the Heritage Foundation fellow, says Section 2 doesn’t have to rely on smoking guns to prevent racially discriminatory voting changes.
“Voting cases under Section 2 are routinely proven through circumstantial evidence,” von Spakovsky says, pointing to a list of cases on the Justice Department website. Besides, those lamenting the loss of Section 5 misunderstand the original purpose of the Voting Rights Act and the Shelby decision, he says.
“It was certainly not gutted,” he says of the Voting Rights Act. “Section 5 was a temporary, emergency provision that was only supposed to last five years but was successively renewed four times.”
The uncertainty over the Voting Rights Act will hang over the commemoration in Selma this weekend. Some Selma residents who literally shed blood for the passage of the law are angry. The Rev. Jesse Jackson captured that anger when he told a reporter after the Shelby decision:
“What was earned in blood in Selma was taken away by the pen in Shelby.”
The change that Obama and others will commemorate in Selma this weekend is already being overshadowed by the fallout from Shelby.
“The court’s recent ruling has, in effect, freed some of the nation’s most historically adept practitioners of voter disenfranchisement,” says Finley, the historian from Southeastern Louisiana University.
“Across the South and elsewhere where big government is condemned, you have people who are jubilant over the change.”
Some of those people weren’t so jubilant 50 years ago in Selma. Their protests over states’ rights and Southern persecution didn’t stop King or the birth of the Voting Rights Act.
But so far, they’re winning the argument over voting rights today.