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Professor Brian Landsberg begins work on a book about the history of the Federal Voting Rights Act

September 14, 2006

Tags: Faculty & Scholarship, 2006

Proposal for
Alabama and The Litigation Origins of the Voting Rights Act
by Brian K. Landsberg

Two origins of the Voting Rights Act are familiar to us. Most prominent in public consciousness is the March 1965 assault of Alabama state troopers and Dallas County, Alabama deputy sheriffs and their posse on civil rights marchers at the Edmund Pettus Bridge in Selma, Alabama. The Supreme Court tells a slightly different story. In upholding the constitutionality of this extraordinary law, the Court emphasized the history of denials of voting rights "through unremitting and ingenious defiance of the Constitution." There is however a different story. The remarkable provisions of this law did not spring full grown from the Johnson administration or the Congress, but were based in large part on lessons learned in the government’s litigation of voting rights cases in the deep South in the early 1960's. This book explains how Department of Justice litigation under the 1957, 1960 and 1964 Civil Rights Acts contributed to the content of the Voting Rights Act. It places flesh on the skeletal story of the origins of the Voting Rights Act told in other books, and expands on the conventional understanding of the origins of the Voting Rights Act, which fails to explain how the substantive content of the Act was shaped, emphasizing instead the crisis that triggered congressional resolve to "do something" decisive to end racial discrimination against black citizens seeking to exercise their right to vote. Once the public was determined to "do something," it would still have to decide what that something should be. What should the legislation provide, beyond what had already been enacted?

My study focuses on three of those cases, one from each of the federal judicial districts in Alabama, each tried by a different federal judge. In one of the cases, the district court fashioned very effective relief; in one the court’s relief was less effective; and in one the federal court, at every step of the way, resisted providing effective relief. The set of cases serves to explain how the litigation led both to the development of refined legal standards and remedies which would serve as models for the Voting Rights Act and to delays and disappointments which would serve to justify the stringent remedies of the Act.

The book combines elements of law, history, policy and memoir (I was a junior lawyer in the trial of those cases). It is based on examination of original court records, Department of Justice records, testimony in other cases, Civil Rights Commission hearings and reports, Congressional hearings and reports, records of civil rights organizations, my own files, and other materials. The book follows each case from initial investigation through litigation and aftermath. It describes the settings for the cases, explains the investigative techniques used by the Department of Justice, and provides brief profiles of some of the individuals involved in the cases: black applicants for registration and leaders, registrars, federal judges, and Department of Justice attorneys.

It is important to tell this story, for several reasons. First, we can expect the first wave of historical revisionism soon. If David Irving can deny the Holocaust, so will some future historians deny or try to explain away the record of racial discrimination that prompted the anti-discrimination legislation of the 1960's. Indeed, the early twentieth century school of American history, aided by such popular culture creations as Birth of a Nation and Gone with the Wind, did precisely that. Second, absent further congressional action, the "temporary" provisions of the Voting Rights Act are scheduled to expire in 2007. Because the justification for the prophylactic rules of the Act rests on somewhat impersonal accretions of evidence, full understanding of what happened in Alabama in the 1960's will provide a better base for evaluating the continuing need for these rules. Third, this retrospective look may allow us to draw more general lessons about judicial and governmental behavior. Finally, the cases recall a day when all three branches of government were, in varying degree, united in seeking enforcement of a right conferred by the Constitution.

The Litigation Origins of the Voting Rights Act fills a void in our understanding of this highly important law. The Voting Rights Act is a subject of current intense study by law professors, political scientists, and historians. However, the origins of the Act typically take up a short chapter describing the political scenario and are treated in summary fashion. Instead, the focus of most studies is on post-enactment experience. See, for example, Abigail Thernstrom, Whose Votes Count? (Harv. Univ. Press 1987); Laughlin McDonald, A Voting Rights Odyssey: Black Enfranchisement in Georgia (Cambridge Univ. Press 2003). The Act is a continuing source of litigation in the federal courts, and is regularly reviewed by Congress. The book should appeal to scholars, lawyers, and civil rights activists, as well as the educated lay public with an interest in our nation’s race relations. It will also provide useful readings, not only for those interested in the Voting Rights Act, but also for those interested in the litigation process in general and Department of Justice litigation in particular.

The estimated length of the book is 250-300 double-spaced typewritten pages. Substantial portions have already been written and are available for review.

Biographical Statement
Brian K. Landsberg

Brian K. Landsberg is Professor of Law at McGeorge School of Law in Sacramento, California, where he teaches Constitutional Law, Federal Antidiscrimination Law, Federal Courts, and related courses. He has also taught Constitutional Law at the University of California, Boalt Hall. He served as an attorney in the Civil Rights Division, United States Department of Justice for over twenty two years. During that time he held positions as trial attorney, policy planner, section chief and acting Deputy Assistant Attorney General. As Chief of the Appellate Section he was responsible for helping to fashion the Department's arguments in cases involving voting rights, school desegregation, employment and housing discrimination, public accommodations discrimination, and criminal deprivation of civil rights. He argued cases in United States Courts of Appeals throughout the country and argued one case in the United States Supreme Court. His publications in law reviews and newspapers analyze issues of race discrimination and the role of the Department of Justice. His book Enforcing Civil Rights: Race Discrimination and the Department of Justice (University Press of Kansas 1997) is, according to Dean Barry Sullivan, writing in Human Rights, "an essential starting point for anyone who wishes to think seriously about the state of our national commitment to racial justice, and about the means best suited for enforcing that commitment."

Professor Landsberg is a 1959 graduate of the University of California, Berkeley, where he majored in Political Science. He earned his law degree at the University of California (Boalt Hall), where he was an associate editor of the California Law Review and a member of the legal honor society, Order of the Coif. He has also studied at the University of London and the National Endowment for the Humanities Federalism seminar, University of California, San Diego.

The Litigation Origins of the Voting Rights Act
Description of Contents

1. Introduction.
The introduction will contrast the conventional view of the origins of the Voting Rights Act with the view taken by this book. It will briefly summarize the historical setting: prevailing discriminatory practices in the early 1960's, the state of the law at that time, and the role of the Department of Justice. It will introduce the three cases, cases from three rural counties in Alabama --- Elmore, Perry and Sumter — to be discussed in depth, and will explain why those counties were chosen.

2. Elmore County and the modern civil rights acts.
This chapter will describe a voting rights suit against the Elmore County, Alabama voter registrars and the State of Alabama. The federal district judge in the case was Frank M. Johnson, who had already tried several voting rights cases and had developed a strong understanding of racial discrimination in voting and what must be done to eradicate it. The chapter will also use the case as a vehicle for explaining the 1957, 1960 and 1964 civil rights acts, as they relate to voting rights. Why were they adopted? Why did the 1960 and 1964 acts progressively impose more stringent rules?

3. Sumter County and the Civil Rights Division.
This chapter will describe a voting rights suit against the Sumter County, Alabama voter registrars and the State of Alabama. It will explore the differences in approach between federal district court judge Hobart H. Grooms and Judge Johnson. In the course of tracing the lengthy and inconclusive efforts of the Civil Rights Division, the chapter will explain the role of the newly created Division of the U.S. Department of Justice. It will introduce some of the attorneys and explain the general orientation and methodology of the Division. The chapter will also describe in detail some of the local officials who participated in denying the vote to African-Americans and will raise the question, based on the behavior of those officials and Judge Grooms, of how to guarantee racial fairness.

4. Perry County and the federal referee.
This chapter will describe a voting rights suit against the Perry County, Alabama voter registrars and the State of Alabama. This case was tried by an obstructionist judge, federal district judge Daniel H. Thomas and is the only case in which a federal voting referee was ultimately used. Ironically, the referee himself applied racially discriminatory criteria and denied most of the applications for registration submitted to him. The chapter will trace the frustrating efforts of blacks to register, beginning in the 1950's, continuing after the government had seemingly won its voting rights case, and continuing even after the appointment of the federal voting referee. The chapter will also tell the story of Albert Turner, a local African-American who helped lead the blacks of Perry County from a meager handful of voters to an electoral majority.

5. The litigation origins of the Voting Rights Act.
This chapter shows how the three cases, along with other federal court cases, gave shape to the content of the Voting Rights Act. Judge Johnson’s findings and remedies validated concepts later adopted by the Voting Rights Act. Judge Thomas’s failure to enforce the prior laws gave impetus to the shift away from reliance on southern federal judges to enforce the Act. The experience in Sumter County showed the need for bypassing some local officials. In short, the litigation in the early 1960's laid the foundation for the Voting Rights Act’s stringent new administrative remedies — appointment of federal officials to prepare and maintain lists of persons eligible to vote in the covered jurisdictions and to observe elections, and the requirement that changes in voting standards, practices or procedures in the covered jurisdictions be precleared as nondiscriminatory. And the record compiled in these cases of disparate educational opportunities, and abuse of the literacy test and supporting witness requirement supported the temporary regional ban on their use. Most important, the litigation revealed that a simple requirement of racial neutrality would not adequately protect African Americans from voting discrimination. Too many registrars failed to comply, and too many federal judges failed to provide effective remedies for discrimination.