From the outset SCLC had planned that King should be arrested and write a letter from jail, as he had from Birmingham in 1963. The staff chose Monday, February 1, the next regular registration day, when there would be a big crowd and the media present, with shutters cocked.
The authorities soon learned the plan. They agreed that the blacks should be arrested, but Baker and Clark each wanted the other to do the arresting. Further, Mayor Smitherman had convinced the Hammermill Paper Company of Erie, Pennsylvania, to announce its plan to build a large plant in Selma on February 3. It would not do to have the glad news published while the town’s jail was filled with demonstrators, including the Nobel Prize-winner. The SCLC staff preferred that Baker be the arrester because they feared that Clark would bash King if he got him away from the cameras.
Baker, in fact, did arrest King along with 260 marchers and jailed them. King kept very busy. He sent detailed instructions to Andrew Young to try various devices to involve the federal government, to get public support from notable politicians and show business stars, and to publicize the Selma struggle. Lee White, the President’s adviser on civil rights, took Young’s call and urged a moderate response. “I assume,” he wrote Johnson, “that the basic reason for King’s call is to have a reply that he can publicize and indicate Presidential support for his position.” Thus, he should be told that John Doar of the Civil Rights Division was in Selma and was already reporting to the President through the Attorney General; if Johnson needed to make a statement, it should say blandly that he was committed to the right to vote and was working on legislation.
At his press conference on February 12 the President went beyond White’s recommendation:
All Americans should be indignant when one American is denied the right to vote. The loss of that right to a single citizen undermines the freedom of every citizen. This is why all of us should be concerned with the efforts of our fellow Americans to register to vote in Alabama.
King’s letter from jail was written for a purpose: it appeared as an advertisement in the New York Times on February 5 in an appeal for money for the SCLC.
King then asked for a meeting with the President. This made the White House skittish, excepting the President’s commitment to the right to vote. Johnson did not want to appear to be taking sides in the Selma imbroglio and King had a history of squeezing publicity out of presidential appointments. White worked out an arrangement to protect the President. He told King that he could announce only that he was conferring with the Vice President and the Attorney General. Then the President would try to see him for a few minutes. “I told his lawyer … ,” White wrote, “that if word of this got out in advance, all bets were off.”
On the afternoon of February 9 Humphrey and Katzenbach in the former’s office in the Executive Office Building briefed King and his aides on the voting rights bill. King was little interested, waiting anxiously for a call from the White House. It seemed forever, but finally came. Humphrey led them across the street. Johnson greeted them and then spoke privately with King for ten minutes. They talked only about the bill, nothing about Selma. King was told that he must limit his press statement to the bill. He did so dutifully.
The tension in Selma was rising. Differences over strategy between SCLC and both the local leaders and SNCC had sharpened. The Reverend Bevel was in jail. Malcolm X came to Selma and, to everyone’s relief, spoke with restraint, urging support for King.
The conflict spilled over into nearby Perry County, where the registrars defied a federal injunction by denying blacks the vote. There were rallies and marches to the courthouse in the village of Marion. On February 18 the police arrested James Orange, the SCLC leader, and the mayor asked the governor to send in Lingo’s troopers. A number of reporters and photographers in Selma, smelling a story, drove to Marion.
That evening hundreds of blacks gathered at Zion Chapel to hear the Reverend C. T. Vivian of the SCLC. Earlier that day he had been punched in the mouth and jailed in Selma, but was released after a few hours. Jimmy Lee Jackson, his mother, his sister, Emma Jean, and their 82-year-old grandfather, Cager Lee, were among those present. Vivian called for a march to the jail to protest the arrest of Orange.
As they started down the street, the police chief declared an unlawful assembly, the street lights went out, and the troopers, joined by local toughs, attacked. Many blacks were knocked to the ground and bloodied. Pete Fisher of United Press International was clubbed and his camera smashed. Richard Valeriani of NBC suffered a head wound that required six stitches.
The Jacksons were separated. Cager, behind the church, was beaten and kicked by local whites until they recognized him. Jimmy Lee, the women, and Cager made their way to Mack’s Cafe, but the troopers invaded, swinging their clubs indiscriminately. When his mother was knocked to the floor, Jimmy Lee lunged at the trooper and was hit in the face. As he tried to rise, a trooper shoved him against the cigarette machine and another fired a gun into his stomach from five feet. It was several hours before he was taken to the Catholic hospital in Selma and an infection had set in. He died on February 16.
On the morning of March 3 a crowd of 3000 attended a memorial service for Jimmy Lee at Brown Chapel in Selma. That afternoon 400 crowded into the Zion Chapel in Marion, while 600 stood in the rain outside. King delivered a powerful eulogy. As Jackson’s body was lowered into his grave, the Reverend Bevel announced that there would be a march along the 54 miles of Highway 80 from Selma to Montgomery led by King on Sunday, March 7.
By now the leaders on both sides were wearing out. King, who both led the Selma marches and flew around the country making speeches to raise money, was exhausted and had to take to his bed. Sheriff Clark moved into the hospital, complaining of chest pains: “The niggers are givin’ me a heart attack.” The venom in his system, however, soon had his heart beating steadily and he was back on the streets. Baker sneaked off to Louisiana for a respite from the tension.
The issue was no longer Selma. The announcement of the march to Montgomery would create a series of new crises—for the civil rights movement, for the state of Alabama, and for the federal government.3
The Fifteenth Amendment to the Constitution, ratified in 1870, declared, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” After Reconstruction, when whites reestablished political control over the states of the former Confederacy, they systematically denied blacks the franchise with devices such as the grandfather clause, the all-white primary, the poll tax, literacy tests, and educational achievement requirements.
In the twentieth century the National Association for the Advancement of Colored People challenged these bars to voting and gradually convinced the Supreme Court to hold them unconstitutional. Congress in the Civil Rights Acts of 1957 and 1960 made modest efforts at the federal level to open registration. In 1962 President Kennedy urged Congress to enact and the states to ratify what in 1964 became the Twenty-fourth Amendment, which forbade the denial to any citizen of the right to vote in federal elections “by reason of failure to pay any poll tax.” The 1964 Civil Rights Act restricted the use of literacy tests in voting rights cases. The U.S. Civil Rights Commission maintained a steady drumbeat of demands for the elimination of bars to voting.
The consequence of these gains was a gradual extension of the suffrage to black voters. By 1964 the poll tax was still used discriminatorily in only five states—Alabama, Arkansas, Mississippi, Texas, and Virginia. In the presidential election that year there were only seven states left with extremely low voter participation rates, six of them in the South—Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. The seventh was Alaska and no one seemed able to explain it or to address it. All of these states had literacy and/or educational attainment tests for registration. Thus, by 1965 the remaining problems still not reached by existing law were confined to the South.
Wh
ile these residual issues were narrowly confined geographically, they were extremely troublesome legally. This was because, as Katzenbach pointed out, “it was just an impossible system of law enforcement”:
The courts had been very, very slow on this; people obviously were qualified to vote who were being turned down; then we had to bring a lawsuit; then we had to go through all the appeals and another election would go by. … it just took forever … in terms of personnel and work and everything else.
President Johnson, as he had told King, was deeply concerned about discriminatory denial of the suffrage. In his State of Union message on January 4, 1965, he declared, “I propose that we eliminate every remaining obstacle to the right and the opportunity to vote.” In fact, he had already directed Katzenbach, Lee White, and Bill Moyers to move ahead with preparation of a bill. Whether he intended to introduce legislation in 1965 is doubtful. He had already told King that it should wait and White also had misgivings about timing, though not about the merits. But the conflict in Selma would overwhelm the arguments for delay.
Some, like Senate majority leader Mike Mansfield, thought that writing a voting rights bill based on the Fifteenth Amendment was “simplicity itself.” The top lawyers in the Department of Justice were not among them. Katzenbach himself, Deputy Attorney General Ramsey Clark, Solicitor General Archibald Cox, and the head of the Civil Rights Division, Burke Marshall, worked on the drafting, assisted by attorneys from Marshall’s staff and the Office of Legal Counsel. It took these luminaries well over two months to complete a short bill that would have a chance of passing a constitutional challenge.
This was because many questions demanded answers. A memorandum of “issues to be resolved” written after the work was well under way raised some thirty queries. Two were of great importance. The first was whether there should be a constitutional amendment or a statute. Justice was of both minds and prepared drafts of an amendment as well as of a bill. The former would read as follows:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State for any cause except (1) inability to meet residence requirements not exceeding sixty days or minimum age requirements, imposed by State law; (2) conviction of a felony for which no pardon or amnesty has been granted; (3) mental incompetency adjudicated by a court of record; or (4) confinement pursuant to the judgment or warrant of a court of record at the time of registration or election.
The attraction of amendment, the Attorney General argued, was that it was both the “most drastic and the most effective” of the alternatives. The bar to black voting, the literacy test, would become unconstitutional by exclusion from the list of exceptions. The drawback, Katzenbach wrote, was that it was “much more cumbersome to amend the Constitution than to enact simple legislation.” The Twenty-fourth Amendment had cleared in less than two years, but that was unusually fast, and the poll tax was much more unpopular than the literacy test. Only 13 states were needed to block adoption, and, while the South could not supply quite that large a number, Katzenbach pointed out, “There may be opposition from sources genuinely concerned about federal interference with a fundamental matter traditionally left to the States.”
Legislation could take one of two forms. The first would empower a federal commission to conduct registration for federal elections, perhaps by using postmasters or appointees of the Civil Service Commission as registrars. The appeal was that there was no constitutional problem because Congress would be exercising its constitutional power to regulate the “manner” of holding federal elections. But there were two serious deficiencies. One was that state and local elections were not reached; the other that conservatives would consider this “an unwarranted interference with a state function.”
The other legislative formula was to empower the federal government to control registration in all elections in counties in which the percentage of black registrants was abnormally low. But, Katzenbach pointed out, “its constitutionality is more dubious than that of the preceding suggestion.”
The civil rights movement, of course, strongly opposed the amendment process because of the time required. Further, the mounting crisis in Selma required swifter action. This left the legislative alternative. But it was not until early March before the President decided in favor of federal control over registration for all elections, hoping to surmount the constitutional hurdle by hooking the bill to the Fifteenth Amendment.
The other difficult question was the literacy test. For the civil rights leaders this was a non-issue. Joseph L. Rauh, Jr., counsel to the Leadership Conference on Civil Rights, submitted a draft bill to the Attorney General on February 12, 1965, which stated that “any literacy … or other educational requirement for voting necessarily denies the right to vote on grounds of race and color.” Aside from being untrue, this language suffered from intellectual myopia. Many fair-minded Americans who strongly disapproved of the discriminatory use of literacy tests, as in Dallas County, Alabama, believed that citizens of the U.S. who voted should be able to read and write. More than 30 states which did not discriminate against blacks used these tests. They usually required the ability to read English and often to write one’s own name.
The Justice Department consulted with Richard Scammon, who had been Director of the Census and chairman of the President’s Committee on Registration and Voting Participation. While he had himself voted to abolish the tests, it was, he said, “a difficult political judgment.” It involved balancing the risk of misuse in order to discriminate as against the views of “many honest and fair-minded men who feel that a literacy requirement is reasonable and beneficial.” Four such members of his committee had voted against abolition. In Hawaii, where there was no question of racial discrimination, a 1964 referendum to eliminate the test was defeated 77,200 to 72,500.
The bill the President submitted to Congress heeded Scammon’s advice by zeroing in on the discriminating areas. The federal government would be empowered to take over registration only in those states and counties in which less than half of the persons of voting age were registered in 1964 and in which less than half voted in the 1964 presidential election. This limited the reach of the bill to the six states noted above, Alaska, 28 counties in eastern North Carolina, three in Arizona, and one in Idaho. No qualification for voting based on race or color would be lawful. In the affected areas registrants would not be required to demonstrate literacy, a level of educational achievement, good moral character, or to submit the voucher of a registered voter.4
Bevel’s announcement of the march from Selma to Montgomery created division, uncertainty, and confusion on both sides. A number of the SNCC staff members thought it a waste of energy and resources. Its executive committee voted to oppose the march but to allow any individual to take part on his own. Young wondered whether it might be better to get a court order in advance. On the evening before the demonstration word came from Governor Wallace that his troopers would “use whatever measures were necessary to prevent a march.” There were death threats to King. Bevel and Hosea Williams phoned King in Atlanta to advise him that it was too dangerous to come to Selma. He agreed to stay away.
The governor did not seem to know how to grasp the handle on the Selma crisis. When a number of aides argued on Saturday that the troopers should not stop the demonstration, that the marchers could not possibly walk 54 miles, that King would become a laughing stock, Wallace changed his mind. Word went out that the demonstration could go forward without hindrance. But now there was another hitch. Route 80 narrowed from four to two lanes as it crossed Lowndes County, a sparsely populated area that was well stocked with heavily armed members of the Klan. The county’s representative warned that there could be murders on that desolate road. Wallace switched back. Lingo would halt the column before it crossed the Pettus Bridge.
Baker was convinced that the troopers would use force. He told Mayor Smitherman on Saturday night that he would not allow his men to take part and was resigning.
But on Sunday morning several members of the city council hammered out a compromise. Baker’s men would not assist Lingo and Clark and Baker would stay on.
On the eve of the march the SCLC leadership was at a loss. Although the demonstration was scheduled for 10 a.m. on Sunday, King was still in Atlanta on Saturday night. Late Sunday morning Bevel, Williams, and Young, who were in charge, did not know what to do. Some 500 prospective marchers were milling about the Brown Chapel. Williams phoned Atlanta but was unable to reach King, who was preaching at his church. He got Abernathy and asked him if he and King wanted the march to proceed. King reluctantly approved and Abernathy agreed.
Bevel, Williams, and Young split the group into three waves. They flipped coins to decide which of them would lead the first group and Williams “won.” John Lewis of SNCC would be beside him.
Meantime Lingo had closed Route 80 on the far side of the Pettus Bridge and a line of cars backed up. The troopers stood shoulder-to-shoulder across the four lanes. Their clubs were at the ready and gas masks hung from their belts. Clark’s mounted posse was in reserve behind them.
Williams led his wave, now quiet, in double file down Sylvan Street, turned right along the river on Water Avenue, and then left on Broad Street, which led up onto the arching bridge. The troopers came into view when they reached the crest of the arch. Williams and Lewis asked each other if he could swim. Neither could.
As the wave came down the far side of the bridge, Major John Cloud, who was in command, ordered his men to don their masks. He directed the marchers to halt and to disperse within two minutes. Williams asked to speak with him. Cloud said, “There is no word to be had. Troopers, advance!” In Selma May 7, 1965, became known as “Bloody Sunday.” Roy Reed’s front-page account in Monday’s New York Times:
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