tv Voting Rights Historians in the Courtroom CSPAN June 2, 2019 1:15pm-2:00pm EDT
on c-span. next on american history tv, clemson university history professor vernon burton recalls his experience as an expert witness for plaintiffs in voting rights cases in south carolina and texas. he also discusses the reconstruction era and constitutional amendments intended to expand and protect voting rights. this talk is part of a two day symposium on reconstruction hosted by the u.s. capitol historical society. >> for those of you cannot at the beginning, i am a historian and i also have the honor of being the president of the grants college in greater philadelphia. organizer onosium the symposium on reconstruction. we are about to begin our next
session. our next session deals with issues of public understanding in the modern period in reconstruction. we have two speakers this morning. we have one from clemson university and the other is from university of california at irvine. both of them are stunningly important scholars in this world. vernon burton is the judge matthew j. parry distinguished chair of history and professor of pan african studies in -- and computer science at clemson university. which is to say he is mostly the entire university at this point. i could read all of his distinguished awards and honors
and then he wouldn't have time to talk. i can only say that he has written a number of very important books. he has given major lectures at many institutions, most recently the annual lecture and southern history at the university of arkansas. his books have been in the book of the month club and other clubs. i had always hoped he could be in the club -- i could be in a club that vernon was a member of. i am delighted to introduce him to start this morning's program. >> thank you so much. [applause] >> thank you to everyone who made this possible. it is a wonderful group of people who work so hard to bring this together. i will not try to name everyone but thank you for all of your hard work. my mother used to always tell me
fool's names and fools faces are seen in public places. and yet, paul asked me to talk about about my own experience as an expert witness in voting rights cases. i'm afraid it sounds a little self-congratulatory so i will apologize. before i get into that, i want to get into one comment about yesterday's session that was so exciting. if you were there, you know that. if you missed it, you missed an incredibly intellectual feast. when we think of reconstruction, too often we separate it from the civil war. i don't think people do that at -- did that at the time. one piece of evidence is the overthrow of reconstruction by paramilitary terrorists that brought about this coup d'etat in 1876 in at least three states that i investigated.
several of them who wrote in 1876 to overthrow construction then applied for the states confederate veterans pensions. those people thought that they were and saw themselves as part of the civil war, although they had not fought in it. that is something we want to remember. this is the sesquicentennial of reconstruction. i just want to note that people are not as interested in reconstruction as they are the civil war. they look at the civil war and they say that the very existence of the united states was at stake. the bloodiest war in the history. the civil war also posed in very critical ways what clearly became persistent themes in american history. the fate of african-americans. the character of the nationthe fate of african-americans. , you could read that larger as the place of minorities. all sorts of people in democracy. the very meaning of pluralism.
yet reconstruction was a period in u.s.d history. if we can identify the united states character, it is in reconstruction. inwe are finding a meaning what way became and how and why we as a nation have done and do things, reconstruction is a dangerous time. people and communities worked out new systems. reconstruction showed the real possibilities of an interracial democracy. during reconstruction, african-americans knew the importance of the right to vote. african-american leader frederick douglass -- let's see how this works -- declared the right to vote was the keystone of the art of human liberty. after the civil war many abolitionists joined african-americans in thinking voting as a principal should be
enshrined in the constitution. some thought the 14th amendment would have accomplished that. some thought laws such as the civil rights act of 1866 would do so. but ultimately it would require a new amendment to the constitution. section one of the 15th amendment stated the rights of citizens of the united states to vote should not be denied or abridged by the united states or by any state on account of race, color or previous condition of servitude. section two specified the familiar congressional enforcement clause, congress shall have the power to enforce this article by appropriate legislation. various crosscurrents we talked about yesterday led to division for ratification in many states. including some states that voted twice, defeating the amendment trieden ratified and then to resend its ratification. nevertheless, the 15th amendment
was ratified in early 1870. the constitution now defined that new birth of freedom that lincoln talked about. with citizenship secured by the 14th amendment in the right to both secured by the 15th amendment, african-americans could protect themselves or rule -- through the rule of law and shape those laws by staying -- by standing for political office and choose leaders with free debate and an honest ballot. with universal male suffrage provided by the new southern state constitutions backed by the 15th amendment, black political participation exploded. voting was followed by african-american officeholders. we heard about senator charles sumner. the ardent supporter of black rights believed the ballot in -- insured african american citizenship and effective protection against white supremacy. after the reconstruction after the reconstruction 1867, acts, enfranchised african-american men could vote for the new state constitutions.
he believed suffrage would be immortal. he wrote, "the rights of suffrage once given can never be taken away." sumner believed that with the 13th and 14th amendment, you didn't even need a 15th. congress could just pass a law as he said. under the power of making regulations, you cannot just -- disenfranchise a race. you cannot degrade the country. you cannot degrade the age. we can all go home. voting rights were accomplished. just because a law or even an amendment to the constitution has passed does not mean that people obey the law. historians generally debate the end of reconstruction and they say that it ends with the election of hayes. the withdrawal of the few remaining federal troops from the south. reconstruction ends when equality before the law was cut off by violent coup d'etat and by rulings of the supreme court
that allowed for horrific discrimination and mayhem. reconstruction inns when the gains of freedom for african-americans during reconstruction were legally undone by the supreme court. the ultimate rejection of african-american rights granted by the 15th amendment was the supreme court's approval in williams v mississippi in 1898 of the 1890 different fries spent -- disenfranchisement conventions. states of the confederacy instituted all sorts of voting restrictions. we know about a lot of them there is the outrageous oklahoma . there is the outrageous oklahoma case where we will allow black people to vote but we won't count the votes. the united states government accepted jim crow but african-americans never did. the black community continued efforts to enforce voting rights but to little avail until the civil rights movement of 1960's. century before congress finally followed
charles sumner's advice about that law, that the voting rights act of 1965. .t was hard-fought the act was necessary for enforcement because so many other laws that guaranteed the right to vote had not worked. after president johnson signed of new civil rights act 1964, july 2, 1964, he almost a meal he turned to his acting attorney general cason back -- "gdon johnson said the toughest voting rights act you can devise." under the voting rights act, cases have been generally filed under one or two separate sections of voting rights. section five and section two. section two says means of eradicating voting practices is minimized or canceled out the voting strength and political effectiveness of minority groups. section two banned the use to
test to interview with the right to vote. literacy test for example. it banned procedures that cause an unequal burden on minority voters or changes that minimize or dilute minority voting. what is vote delayed asian -- dilution? it is swamping the votes of the minority with the majority voters. annexation was a classic way , particularly after the voting rights act. large elections requiring candidates to run citywide or countywide rather than from the smaller districts was the very cornerstone a vote dilution. that was because of laws segregated sot is you had minorities living in segregated areas. they often would represent a majority and thus have the
potential for electing candidates of their choice. where elections are conducted at large, and where whites vote is a block against candidates who were preferred by minority voters if you didn't have racial bloc voting, it really wouldn't matter. the candidate's preference of the minority community than would be submerged in that larger pool of white voters. although section two set forth broad protections, it places the burdens on the minority to bring a lawsuit and prove discrimination. in practice, lawsuits under section two are so expensive that citizens seldom can afford -- they don't have the money or legal expertise to pursue a successful claim. unless they are backed by some huge law firm which was often the case.
the department of justice or an organization like the naacp, aclu. these organizations have limited funds. contrast that with the jurisdiction he was defending the suit. they pulled from tax money. every person pays their tax money including the very citizens who are bringing the suit. they are actually in their tax money paying for the county to work against them. section five of the voting rights act was the most novel feature. one of the most effective enforcement mechanisms. it is what was called the free -- preclearance requirement. all changes covered by the voting rights act special provision had to be preapproved i one of two factfinders. either a three-judge panel in the federal courts in the district of columbia, or the department of justice. you begin to see some of the things that happened with the passage of voting rights act.
i was involved in the charleston county council election. right before the voting rights act, there was an article that interviewed all the council members of charleston, south carolina. they said -- it is quoted the like ward elections because it gives us contact with the people and we are closer to them. then you have the voting rights act that comes about. two years later, charleston goes to at-large elections. blacks begin to register to vote. i looked at the state of south carolina and about three fourths of all counties changed to at-large elections following the voting rights act. is that coincidence? that is what they do in these court cases. it even gets trickier than that in this case. in the school board, esau jenkins, great civil rights leader from south carolina, drove a bus. he does not get credit he deserves for the freedom schools.
it is his idea to get this going. just to do it, he ran for the school board on john's island. he did not win. came in third, i believe, but he did come in before one white person. next year, what do they do? they change it to some school boards will be elected and some will be appointed. guess which boards are elected? those where whites live. these are the kinds of tricks and laws and things that were coming about that the voting rights act was able to tackle. section five was the least burdensome on the minority victims of voter discrimination. they don't have to bring the case. section two applies to the entire nation, but section five applies to covered jurisdictions. how did congress decide which jurisdiction they will enforce it in?
famously called the trigger, based upon history, which is you had to have had a device that diluted or kept african-americans from having the same right to vote or not -- a literacy test -- and in addition, there was a mathematical formula that said voting age population, what percentage had to be more than 50% were registered or of those who voted that were registered had to be 50%, so it had to do with both of those things. seven of the nine states covered by the trigger our southern states. with the voting rights unfair because it picked on states that do not allow african-americans to vote? some people think so, including at the time, a young law clerk for justice rehnquist, now chief justice roberts. it was a 1980 supreme court case, the very first time the voting rights act was challenged a lot, the very first time the
supreme court ruled against the voting rights act that got myself involved in voting rights cases and a lot of other historians as well, and that is mobile versus boulder. we talked about the dilution process of at-large elections. the supreme court in mobile declared that henceforth, plaintiffs must prove not only that an at-large system has discriminatory effect -- that is that blacks could not get elected there in the at-large system -- but also that it was adopted or maintained for the
purpose of diluting minority voting. take note -- it's not just discrimination, but purposeful discrimination. thus, the court really hindered racial equality by what was seemingly neutral to actually discriminatory practice. who is trained to look at intent and purpose among politicians? historians. attorneys know they need to show this so they turn to historians and ask them to work on this intent standard. the legal profession has its own way of defining intent and this was actually a 1977 insurance case listing the four things required for circumstantial intent. the factors are really consistent with the inquiry the historian would make in order to draw conclusions on a purpose or intent. the difficulty -- the difficult intent standard was in effect for only about it of years. the mobile decision were plaintiffs had to show intent was very inconsistent with the views of u.s. when it adopted and renewed the voting rights
act from 1965, 1970 and 1975, so in 1982, a substantial bipartisan majority in both houses revive section two of the voting rights act to outlaw election measures that result in diluting minority voting strength without requiring proof of discriminatory intent. historians did not really after that -- or attorneys after that did not need historians to do intent, but every attorney likes to have more than one arrow in their quiver and as i learned later, it's much easier for a judge to say to his neighbors that this law discriminated, but we just won't talk about intent. approved practical and we can talk about later if you want to some of the cases we got into. also very important in 1982 with the 25-year renewal of the
voting rights act, the senate judiciary committee issued an important report the supreme court has since called the authoritative source and the senate judiciary committee decided that the totality of circumstances gives the evidentiary standard. here's my definition of totalitarian -- totality of circumstances or can everybody read that? [inaudible] [indiscernible] [laughter]
dr. burton: the teacher understood the concept, but if you just read what calvin said, you would think this essentially is a great example of totality of circumstance. the senate practice went back to a 1973 circuit case. that, too, is very consistent of what any good historian would do would look at these things if you were trying to get the totality of circumstances that is needed now. in other words, the court used a senate passage when accepting if a particular result violated section two. it is a way of organizing independently verifiable historical analysis for the courts, and that is what i would summarize in almost every court case are those nine fax.
you don't have to do them all, but i usually would. attorneys now need historians to establish not just intent but also to do the senate factors. as congress recognized after the mobile decision in 1980, persuading a court to find discriminatory intent is a for middle challenge. proving intent has never been easy, but it has become even more difficult because modern politicians are much less careless about saying that it was for a racial purpose. when i started this, you can find quite a few, but it's very hard to do now unless you can get their emails or something and what is going on today. work increased again for experts with a 1986 case out of north carolina. said you had to show three things. they were really statistical -- in order to prevail as minority plaintiffs. we talk about minority vote collision, that once usually
vote together against the preferred choice of the candidate that you can show minorities to agree and there that you can form a district in some way that african-americans can do it. i did this because minority plaintiffs don't have very much money and it gets very, very expensive. it was so simple when i started. all i would do is take a newspaper column of the election, and i would get the percentage of each precinct -- 99% black, 99% vote for a black candidate. i understood it. the next case, they wanted me to use r. the next case, r squared. now it's the economical interest. it is not rocket science, but huge amounts of money and time to burden minority plaintiffs to show something that is very
simple, it seems to me, but that is just to give you a sense. i don't like it. i don't like doing it. i do it because it is needed. things have changed significantly from when i first became an expert witness of minority plaintiffs in 1980. there might be a deposition. i went through five before i had a deposition, testimony at trial, mostly several because we were on a roll at the time. now there is a huge impetus on report preparation, exchange of reports. the report critiqued by an expert on the other side and sometimes, a rebuttal report by me and another rebuttal by the opposing expert. it was interesting, though, minorities won almost every case
in those heady days when the jingle's decision, down to 1996, and this is something that just strikes me so much. the court ruled in 1996 that creating districts for african-american candidates of choice violated the 14th amendment right of whites. we have just studied one of the 14th amendment stash it was founded only to protect former enslaved people. it was used then to stop minorities from getting representation. i'm very honored to be part of a civil rights and voting rights community. i have learned so much about history from these attorneys i'm working with. i think i learned actually how to do history and the importance of history. in shaping the very circumstance of people's lives. i have also learned about the law and how the law works as opposed to how i saw the law function. you heard a little bit of that today. it's not necessarily about justice. it's no wonder that randall is upset with the constitutional system we have now, if you think
it should be about justice. my attorneys working for the minority client, and they put my evidence, sort of like one attorney says i lay down the hay so the goats can get at it. in the opposing attorney goes after me. it become sort of symbolic as well if you have ever been on the stand of been the subject of a cross examination. they attacked my testimony, my credentials, my deposition, any and everything. i even had one accuse me because i had done voter registration years back, and he said isn't it true you spent most of your time in college working for civil rights, and i thought a minute and said i spent most of my time in college studying or praying, at which point the judge chuckled, and from there on, we were doing ok. i had to learn a lot about the rules of the court.
for instance, newspapers cannot be presented as evidence. i as a historian can present the newspapers as evidence and put it in an explain it, and then it is part of the court record. one of the most interesting cases when the ku klux klan decided they would intimidate me, this is great, that is one of the senate factors. i can't actually tell about i just saw the klan tell me to leave town. the judge says that's hearsay evidence and cannot admit that, i said what? the clu was the attorney. is it in this courtroom to have years ago with the aclu, a defendant to the klansman's right to march. i went and got the parade permit, and then i could testify. it's little things like that it
takes a long time to learn. throughout the summer of 2012 for the south carolina voter id case, i wrote a report. the department of justice cited my report. south carolina came here to d.c. with a three-judge panel including now supreme court justice judge kavanaugh. in that case, in fact it was interesting, as part of different senate factors, there had been a big debate on a license plate that said "coon hunting." you can make what you want of that, but the african-american community objected and the governor at the time, mark sanford, who like to hike the appalachian trail actually vetoed it because he saw the implications of what it meant. i admire him for that, but it was in the report. he said you grew up in 96 south carolina.
you would not think anything at all if you went to the gas station about noon for lunch and a couple of your friends were going coon hunting? i said of course i would be upset because you go reckon hunting at night time and most of the time you get possums. the states attorney said to me in d.c. do you think republicans are racist. i said i prefer to think some are not very sensitive to racial issues. for instance when a gorilla escape from the zoo, a republican said that's a relative of michelle obama. then i pointed out to a cartoon that looked like it was about 1880, of an african-american running away with this horrible sort of jim crow-ish look that
was running away because obama was coming in and said he was going to get jobs for black men. in the charleston case i spoke about earlier, one of the sponsors of voter id after the judge had ruled that the method of election discriminated against african-americans, he introduced the same method of election for the school board. those are the kinds of things -- i had been told i would be on the stand all day. i was hardly there, the attorney dismissed me. the judges kept asking questions, he kept saying fitted on what me to testify. i enjoyed the cross site of it. it gives me a chance to engage with other people and say what i think. the three-judge panel then blocked the enforcement of the law until after the 2012 election.
the george's -- the judges specified that people without id's and still voted they can sign an affidavit stating the reason they do not have an id. the south carolina voter id law transition from one of the most stringent to one of the most lenient where even those without a voter id are eligible to vote. i have tested this in south carolina. i have read the law, i heard the attorney general. i know what the law is, but just for the heck of it, just last week, we went to vote, i believe. i said i don't have a voter id, but i can vote. they said no, you cannot. yes, i can. the point of it is the law says i can with an affidavit, but what really matters, as it did at the end of reconstruction, as it does today, is that people at the polls can say yes or no and
either they don't know the law or they are trying to stop people. i think in this case, they just did not know the law, but that's the point, who lets people vote at the polls. last line of defense, i think, but the supreme court ruled in 2003 has shaken the voting rights community. a 2013 challenge under the roberts court to the first challenge of the voting rights act under the warren court in 1966. in 1966 in south carolina, plaintiffs claimed the act violated a state's right to control and implement elections. when south carolina challenged the constitutionality of the voting rights act, other states joined the suit. chief justice earl warren explained it. congress felt itself confronted by an insidious and pervasive evil. the chief justice noted the long history of racial discrimination
in the voter registration process in south carolina, directly quoting some of the more outrageous remarks we talked about yesterday at the 1895 disenfranchising convention, that the evidence of the discriminatory purpose. warren stated that the constitutional propriety of the voting rights act of 1965 must be judged with reference to the historical experience which it reflects. thus, its history have finally caught up with the south. in 1966, the supreme court ruled the voting rights act including section five for clearance requirements constitutional, and in 2013, the roberts court ruled that section four was determinant as the trigger clause, to jurisdictions
required to submit proposed election changes for preapproval was unconstitutional. the ruling disabled section five. this is inspired of a huge amount of testimony and evidence presented to congress when they renewed the voting rights act in 2006 and section five. this finding really eviscerate it the essential preclearance of electoral changes in the covered districts and crippled the voting rights act. chief justice roberts stated in his reading for shelby, "our country has changed." this depressingly echoed a ruling in 1852 in the early dred scott cases which said african-americans could not be citizens at the time, which previous decisions in missouri had a pattern of ruling for freedom but with the new decision would be ruling for slavery. times are not now as they were. while roberts said he considers more important that congress consider current conditions.
unlike the warren court which upheld the constitutional protection of individuals against racial discrimination is one of the principal duties of the u.s. supreme court, the roberts court argued that the role of the court is more to protect the rights of the state to do with voting as they wish. the roberts court felt that the problem of racial discrimination in elections was in the past and the voting rights act must reflect this new historical viewpoint. the preclearance section of the voting rights act in its four decades blocked more than 1000 voting laws and procedures here that's the equivalent of 1000 successful lawsuits that have been brought under section two. imagine what that cost her justice ginsburg, i think, had one of the more apt rejoinders to the majority notion that the voting problems were all wrapped up, and she said throwing up preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
she was right. it was not hardly any time that shelby was announced that a storm of efforts to disenfranchise minority voters rained down upon states deviously subject preclearance. for example, mere hours after did decision, officials in texas put into motion a voter identification law that a federal court had already previously ruled and refused to preclearance because it made it more difficult for minority voters in texas to participate in the political process is on an equal basis with whites, and i think that is why south carolina changed when we were at court, because of what had happened in texas. historical context still matters, and i like to know my colleagues, particularly even before we thought of alternative facts, we were really arguing about how history is constructed.
no question in my mind, all history is constructed. i agree with that, but there is a story that i read to my kids and i also think that it really matters what you construct your history out of. we have to have evidence and facts, so that is what i was trying to do in texas. i will give you a little bit about what is happening there or what happened. this is actually a slide -- i showed you the set of factors. what i tried to do is put in the long duration, the long history, put it into context. it's not about political party. as i said, it did not matter who it -- who was in charge, if it was democrats, republicans, or if it was martians. one of the tragedies was that in perceived times of crisis, always the party in power found
ways to disenfranchise or dilute the votes of minorities. so i went through all of these -- stay at the mike. i don't know if i can read it from here. the all-white primary, and i'm putting these in historical context. you have the interracial populist party of the 1890's challenging, particularly in texas, areas, and they give is there rationale for the all-white primary as what? they say it is about voter laws. the supreme court -- they say it is about voter fraud. the supreme court found it was not about voter fraud. you can go through each one of these, the literacy tests, same thing.
they are arguing it is about voter fraud, but of course, instead the courts find it is about keeping african-americans from voting. the poll tax, which we know about, the same thing. it comes about and with the modern civil rights -- ok, thank you so much. voter registration. the texas purge. governor conley said it's the next best thing to a poll tax -- he actually called it that, purging the list. the courts said they found it was intentional to dilute the votes.
wallace county just did a whole series of those. they said it was about voter fraud. the courts found otherwise. texas senate bill 14 is the voter id case. what i did with this was put in what was happening. of course you have the great recession of 2008. upset everyone. obama, who is elected president as a minority candidate for the first time, and you have huge turnout and registration of african-americans and minorities for the first time, and you also become widespread that certain states like texas and the whole united states is going to become a majority minority state, and i think it's this sort of crisis that we see that leads to the voter id law that fits this whole pattern. so that's how i show senate factor nine that people could understand what was going on at the time. one of the things in texas, for example, you could have a gun permit id and you can vote, but you cannot have a state id or a student id with pictures on it, and you still cannot vote, and it would be easy to show who have the gun permits and who had
the other sorts of things. well, we did win that case, and judge ray most -- judge ramos'finding that the voter id had discriminatory intent is still there. the texas legislature repeals senate bill 14, replaces it with senate bill five, which has the same list of what is acceptable as voter id, but they added in as south carolina did, and affidavit. the fifth circuit with several federal judges appointed lest it of years, some sleight-of-hand to say that this replacement act is almost the same as the other one, is ok, but we do have some precedent of intent in texas. the most interesting thing to me is nowhere have they found in person voter id highly at all, but there's a lot of it in absentee voting like you saw in north carolina, which is not covered by the voter id things.
i find it ironic, too, that when i first went to texas to testify, the doj was on the side of minority plaintiffs. when i went back in 2016, they had changed sides. the department of justice now defending the state of texas. the voting rights act is crucial for texas minority voting, but i see no guarantee it will continue into the future. the future of the voting rights act is uncertain. when passed in 1965, you had bipartisan support and the same has been true for all its re-passes. in conclusion -- my wife told me to always say that to give the audience hope -- we tend to think of the terroristic overthrow of the first reconstruction and subterfuge of disenfranchisement african-americans suffered as in
the past, but we are really connected to those events and the job of historians is to put this in historical context and has seemed to change over time. i had a privilege of getting to know a man from my hometown in 1996 who asked me to write the forward to his book. african-americans were averted for trying to vote -- african-americans were murdered for trying to vote. the longtime president of morehouse college and spiritual godfather of the civil rights movement continues to battle from the 1930's down to the 1980's that the right to vote is the most sacred thing a man can have. in 1957, his student, dr. martin luther king junior, echoed his mentor. so long as i do not firmly and
irrevocably possess the right to vote, i do not possess myself, king demanded. is this congress demonstrated, revolutions can go backward. we cannot allow that to happen. already it is difficult for me to believe that an 2019, we are seeing purges of voter lists, draconian voter id laws that discriminate against poor people, minorities, the elderly and disabled, as much luther king junior challenged in his nobel peace acceptance speech, i refuse to accept the idea that the business of men makes him morally incapable of reaching for that which confronts him. t.v.is is american history covering history