In Arizona, the disfranchisement of Indians was rooted in a clause of the state constitution that provided that “no person under guardianship . . . shall be qualified to vote at any election.” In 1928, in the case of Porter v. Hall, the Arizona Supreme Court had ruled that this clause was applicable to reservation Indians who lived “under the laws, rules, and regulations of the United States government” and thus were not subject to the jurisdiction of the state of Arizona. For two decades, this decision went unchallenged. In the aftermath of World War II, however, numerous Native-American veterans attempted to register, and two of them, when refused, filed suit in 1948. The resulting court case led to a sharp rejection of Porter and the “tortuous” logic that supported it. Justice Levi Udall, speaking for the court, argued that Native Americans were not under guardianship of a type envisioned by the state constitution, that the state government had never intended to apply such a provision to Native Americans, and that no court in any other state had ever upheld the application of the guardianship clause to Native Americans. Udall cited To Secure These Rights and concluded that “suffrage is the most basic civil right, since its exercise is the chief means whereby other rights may be safeguarded. To deny the right to vote, where one is legally entitled to do so, is to do violence to the principles of freedom and equality.”53
Almost simultaneously, federal courts were hearing a New Mexico case that challenged its constitutional denial of the franchise to “Indians not taxed.” As late as 1940, five states had enforced such laws, despite a 1938 legal opinion from the Department of the Interior that they violated the Fifteenth Amendment. By 1948, four of these states (Idaho, Maine, Mississippi, and Washington) had dropped their “Indians not taxed” provisions, but New Mexico, with one of the largest Native-American populations, had not done so, insisting that there be “no representation without taxation.” Consequently, in 1948, Miguel Trujillo, a Native-American ex-Marine sergeant, filed suit after he was denied the right to vote because he did not pay taxes on his property—although he was subject to all other state taxes. A three-judge federal panel, after pointing out that whites who paid no taxes were not disfranchised, concluded that New Mexico’s constitution violated the Fourteenth and Fifteenth Amendments. Notably, the court alluded to the wartime service of Native Americans. “It is perhaps not pertinent to the question here, but we all know that these New Mexico Indians have responded to the needs of the country in time of war. . . . Why should they be deprived of their rights to vote now because they are favored by the federal government in exempting their lands from taxation?”54
Attorneys for the National Congress of American Indians labeled the Trujillo decision a “smashing victory for civil rights for our oldest national minority.” Yet the long struggle for Indian suffrage was not quite over. In 1956, the attorney general of Utah issued an opinion (reversing one delivered sixteen years earlier) that an 1897 law denying residency to anyone who lived on an “Indian or military reservation” still applied to Native Americans and thus prohibited them from voting. The state’s supreme court agreed, arguing that residency was determined not merely by geographic location but by culture and legal status: Indians remained subject to special protection by the federal government, they spoke their own language, and were “not as conversant with nor as interested in government as other citizens.” On appeal, the decision in the case, Allen v. Merrell, was vacated by the United States Supreme Court and returned to Utah for rehearing. The state’s legislature, bowing to the currents of the law and public opinion, rendered the case moot by repealing the original legislation.55
Native Americans in some states continued to encounter literacy tests as well as procedural obstacles to voting and registration; in subsequent decades, they also faced occasional legal challenges, usually on the grounds that their exemption from property taxes undermined their eligibility to participate in elections. By the mid- 1950s, however, the basic suffrage rights of Native Americans were legally secure. Thereafter, Indians, although few in number, came to constitute an important voting bloc in several western states as well as in many towns and counties. Thanks to the courts, the federal government, and 25,000 World War II veterans, they were full citizens at last.56
EIGHT
Breaking Barriers
BETWEEN THE LATE 1950S AND EARLY 1970S, the legal underpinnings of the right to vote were transformed more dramatically than they had been at any earlier point in the nation’s history. In a cascading series of congressional enactments and court decisions, nearly all formal restrictions on the suffrage rights of adult citizens were swept away, and the federal government assumed responsibility for protecting and guaranteeing those rights. Almost exactly a century after Congress, led by Henry Wilson, had first debated the imposition of national, universal suffrage, it became the law of the land.
The historical stars were well aligned for such a transformation. In the South, a determined movement of African Americans stared down the threat of violence and reprisals to force the issue of voting rights into the public eye. The expansive dynamics of military mobilization and international competition were kept in motion by the cold war and the distant, but very hot, war in Vietnam. The Supreme Court, fueled by an enlarged conception of citizenship and a willingness to extend the powers of the national government, was actively promoting the rights of the disadvantaged. In addition, public opinion, molded by anti-totalitarian conflict with Germany and the Soviet Union, was broadly supportive of democratic principles; the solvent of rapid economic growth took the edge off class antagonism; and for a time at least, both major political parties saw more to gain than to lose from a broadening of the franchise.
For millions of Americans, these legal changes had concrete consequences as simple as they were profound. A poor black woman in Alabama who could not set foot in a polling place in 1958 could pull a voting-machine lever for a black candidate in 1972. A Puerto Rican-born resident of New York who failed the English-language literacy test in 1960 would receive voting information in Spanish in 1980. Eighteen-year-old soldiers who were sent to Vietnam during the Tet Offensive of 1968 could not vote in that year’s tumultuous election, but their eighteen-year-old counterparts during the Gulf War could cast ballots wherever they were stationed. These were not small changes.
Race and the Second Reconstruction
As Americans, we must also realize and accept the fact that the responsibility of worldwide leadership carries with it a concomitant duty of providing the world with examples of freedom and liberty for all in our daily lives. Any intolerance or discrimination or deprivation of our constitutionally guaranteed rights and privileges resound and reverberate throughout the globe . . .
—HOUSE REPORT 291, ACCOMPANYING H.R. 6127, THE CIVIL RIGHTS ACT OF 1957
It seems that neither Thaddeus Stevens nor Charles Sumner ever advocated any such thing as is found in the present proposed legislation, which has the effect of making the United States the parent guardian of minority groups, and the pursuer of all of the other citizens in the United States . . .
Why swap the harmony and unity prevailing over this country today for proposals that will undoubtedly bring chaos, dissension and strife into this land so rich with promise for the future, that promise being predicated upon a glorious past.
—HOUSE MINORITY REPORT ON H.R. 6127, 1957
Washington and the South
The South was a cauldron of racial tension in the 1950s. Throughout the region—and particularly in its many small and medium-sized cities—African Americans pressed forward against the boundaries of America’s caste system, demanding an end to social segregation and second-class citizenship. Sometimes led by national and regional organizations, such as the NAACP, trade unions, or the newly formed Southern Christian Leadership Conference, and sometimes acting entirely on local initiative, black citizens marched, rallied, boycotted buses, wrote petitions, and filed lawsuits to challenge the Jim Crow laws that had kept them in their place for more than half a century. Encour
aged by the Supreme Court’s 1954 decision, in Brown v. Board of Education, that separate was not equal, the black community focused particular attention on the integration of schools and institutions of higher learning. African Americans also kept the spotlight on the right to vote, which was always at the heart of the civil rights movement. Convinced that the franchise was an important right in itself and the key to securing other civil rights, hundreds of thousands of African Americans, acting alone and in organized registration drives, attempted to enter their names on registry lists and participate in elections. “Once Negroes start voting in large numbers,” observed one black newspaper, “the Jim Crow laws will be endangered.” “Give us the ballot and we will fill our legislative halls with men of good will,” declared the Reverend Martin Luther King, Jr. to a crowd of nearly thirty thousand people in front of the Lincoln Memorial in 1957.1
The push for civil rights encountered formidable opposition, which evolved into a semiformal policy of “massive resistance” after the Brown decision. To be sure, an increasing number of white Southerners were recognizing the inevitability, and even desirability, of integration; many advocates of a modernized New South sought to remove the stigma attached to the region’s racial practices, while the mechanization of agriculture diminished the reliance on semicaptive black labor. Nonetheless, resistance to equal rights remained fierce and sometimes violent. Mayors and governors refused to integrate schools and public facilities; legislatures declared that they would not dismantle Jim Crow; sheriffs arrested and beat black protesters and their white allies. Meanwhile, the fortunes of liberal or populist white politicians who displayed any sympathy with blacks, such as Earl Long in Louisiana and Jim Folsom in Alabama, were spiraling into decline.2
The widespread resistance to integration only underscored the black community’s need for political rights, but throughout the 1950s their efforts to vote were thwarted more often than not. In seven states (Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia), literacy tests kept African Americans from the polls: failure of the test could result simply from misspelling or mispronouncing a word. In 1954, Mississippi instituted a new, even more difficult “understanding test,” complete with a grandfather clause exempting those already registered. Black residents of the five remaining poll tax states (Alabama, Arkansas, Mississippi, Texas, and Virginia) faced not only an economic hurdle but also discriminatory administration: poll tax bills were often not sent to blacks, and receipts were hard to obtain. In Alabama, prospective registrants had to be accompanied by white citizens who would “vouch” for them. In Louisiana, members of the White Citizens Council purged black registrants from the voting lists for minor paperwork irregularities, and a 1960 law provided for the disfranchisement of a person of “bad character”—which included anyone convicted of refusing to leave a movie theater or participating in a sit-in. Registrars in many towns and cities thwarted black aspirants by not showing up at the office or by simply refusing to register blacks when they did. Those who were adamant about registering could lose their jobs, have loans called due, or face physical harm. More than a few were killed.3
It was apparent to nearly all black leaders that the civil rights movement could succeed only with significant backing from the federal government: the black community by itself could not compel city and state authorities to cease discriminating. But Washington, although sympathetic, was hesitant. Liberal Democrats in Congress were eager to take action—at least to implement the recommendations of Truman’s Commission on Civil Rights—but their influence was offset by the power of southern Democrats. Republicans were similarly torn: while the desire to court black voters reinforced the party’s traditional pro-civil rights principles, many Republicans also hoped to make inroads into the solid South by winning over white southern voters.
President Dwight Eisenhower, meanwhile, was cautious through most of his first term, favoring gradual change, reliance on the judiciary, and a limited role for the federal government. By 1956, however, the worsening situation in the South (including the murder of two Mississippi voting rights workers), coupled with prodding from Attorney General Herbert Brownell, persuaded the president to act. He gave Brownell—who was convinced that new laws were needed—the go-ahead to send to Congress a civil rights bill that the Justice Department had been preparing for months. For more than a year, the legislation wended its way through Congress, where it was streamlined and watered down to avoid a southern filibuster. Senate Majority Leader Lyndon B. Johnson, aspiring to the presidency and hoping to serve as a bridge between the two warring wings of his party, played a critical role in shaping the final legislation; another aspirant to the Oval Office, Vice President Richard Nixon, also lent indispensable support.4
The Civil Rights Act of 1957—the first civil rights bill passed by Congress in more than eighty years—was a modest piece of legislation, so modest that it was roundly criticized by African-American activists. The bill created a national Civil Rights Commission, elevated the Civil Rights section into a full-fledged division of the Justice Department, and authorized the attorney general to seek injunctions and file civil suits in voting rights cases. The operative heart of the measure was a strengthening of the machinery that the Justice Department and federal judges could utilize to respond to violations of existing voting rights laws, including the Fifteenth Amendment. Well-intentioned as the bill surely was, it had few teeth and little impact: the Justice Department was sluggish in initiating suits, southern federal judges were sometimes unreceptive, and the entire strategy of relying on litigation inescapably meant that progress would be slow. Between 1956 and 1960, only 200,000 additional blacks were registered to vote in the South. The ineffectiveness of the bill led to the passage in 1960 of a second Civil Rights Act, stronger than the first, but conceptually similar and still modest in its reach.5
Rhetorically and politically, however, the Civil Rights Act of 1957 did push the voting rights agenda forward, largely through the creation of the Commission on Civil Rights (CCR). The bipartisan commission, instructed to report to Congress and the president within two years, energetically pursued complaints, held hearings, and conducted field investigations. Its report, issued in 1959, contained vivid, detailed confirmation of claims that had been streaming forth from African Americans in the South. (The commission’s report also pointed to a growing problem in New York, where natives of Puerto Rico by the scores of thousands were being denied the franchise because of their inability to pass the state’s English-language literacy exam.) The critical source of nonvoting by blacks, the CCR reported, was the brazen refusal of southern authorities to permit blacks to register, as well as their willingness to intimidate those who tried. In the end, the CCR concluded, The commission’s recommendations included the appointment of federal registrars who would be dispatched to the South and empowered to register voters. The three Northerners on the commission, including its chairman, went further, calling for a new constitutional amendment that “would give the right to vote to every citizen who meets his State’s age and residence requirement, and who is not legally confined at the time of registration or election.” Although the precedent was unmentioned, the proposed amendment bore a strong resemblance to the Wilson amendment of the 1860s.6
legislation presently on the books is inadequate to assure that all our qualified citizens shall enjoy the right to vote. There exists here a striking gap between our principles and our everyday practices. This is a moral gap. . . . It runs counter to our traditional concepts of fair play. It is a partial repudiation of our faith in the democratic system. It undermines the moral suasion of our national stand in international affairs.
The Civil Rights Commission thus lent its prestige and authority to calls for further federal action and the de facto, if not de jure, nationalization of the right to vote. Whether such calls would be heeded depended on a complex political calculus. Both parties were engaged in balancing acts, trying to court northern black and southern
white voters simultaneously; for the Democrats this also was a tension between the two regional wings of their own party. Election returns of the 1950s made clear, however, that the balance was unstable and could not continue for long. The rapidly growing black electorate had become influential in many northern states, and black voters, although tending to vote Democratic, could be wooed by pro-civil rights candidates from either party. Eisenhower’s victories in some southern states, moreover, indicated that single-party dominance in that region was cracking. An additional ingredient in the calculus was the likelihood that black voters would be enfranchised in the South in the foreseeable future and would be unsympathetic to any party that had opposed their enfranchisement. The Civil Rights Acts of 1957 and 1960 were bipartisan compromises constructed to appease competing political interests, but it was apparent that difficult choices loomed on the horizon.7
The pace of governmental activity began to quicken in 1960, largely because the political temperature was soaring in the South. A sit-in at a segregated luncheon counter in Greensboro, North Carolina, sparked a wave of civil disobedience by young African Americans who refused to adhere to the strictures of Jim Crow; freedom riders rode buses to try to integrate interstate transportation; in Birmingham and other cities, mass movements challenged segregation and disfranchisement; efforts to register black voters even reached into the Deep South bastions of white supremacy in rural Alabama and Mississippi. In the latter state, in 1963, eighty thousand African Americans, echoing a strategy from the Dorr War in 1840s Rhode Island, participated in a mock gubernatorial election.8
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