Black Votes Count

Reviewed by Laughlin McDonald

Vol. 13, No. 2, 1991, pp. 19-21

Black Votes Count: Political Empowerment in Mississippi after 1965. by Frank H. Parker. (Chapel Hill University of North Carolina Press, 1990.)

Black Votes Count, by Frank Parker. is a sinuous but supple account of the efforts to implement the Voting Rights Act of 1965 in Mississippi in the face of a campaign of massive resistance by state and local officials. While the book acknowledges the roots of those efforts in the popular movement of the early 1960s, particularly the historic Mississippi Freedom Summer Project of 1964, this is mainly the story, told by one of the lawyer participants, of the court room battles and how they helped change the complexion of politics in a state that has long been conspicuous for white intransigence and resistance to civil rights.

Mississippi led the way in disfranchising blacks after Reconstruction. Prohibited by the Fourteenth and Fifteenth Amendments from denying the right to vote outright, it held a constitutional convention in 1890 and adopted new stringent, technically legal," registration requirements (including the literacy test and poll tax) which virtually eliminated blacks from the voter rolls. Other southern states followed suit and adopted the central features of the "Mississippi Plan?

The restrictions on voter registration, administered as they were by hostile whites, worked to perfection. Although blacks were approximately 40 percent of the population in Mississippi, as late as the eve of passage of the Voting Rights Act only 6.7 percent were registered to vote, and there were no more than six black elected officials in the entire state.

The Voting Rights Act abolished the literacy test in the southern states, and blacks predictably began to register in substantial numbers. Mississippi, responding as it had done in 1890 to black political mobilization, enacted thirteen major pieces of legislation in l966 at its regular and special legislative sessions designed to dilute minority voting strength and make it more difficult, if not impossible, for the newly registered black voters to elect candidates of their choice. The Massive Resistance Legislation, as Parker denominates it, included measures that gerrymandered the slate's five congressional districts to fragment the heavy black population in the Delta area; authorized counties to elect their governing bodies and school boards at-large rather than from districts; authorized the abolition of elected county school superintendents increased the qualifying requirements for independent candidates; and,


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increased the number of discriminatory multi-member districts in the state house and senate.

Mississippi in 1966. for all the similarities and parallels, was not entirely the same as the state in 1890. The nation had renewed its commitment to civil rights in 1965 with passage of the Voting Rights Act, had not abandoned it as it had done after Reconstruction.

The Voting Rights Act was also the most radical, and potentially the most effective, piece of civil rights legislation ever enacted by Congress. One of its major provisions, Section 5, was expressly designed to block attempts by states such as Mississippi to circumvent the ban on literacy tests through enacting new measures to discriminate against black voters. Covered jurisdictions, defined as those which had used onerous registration procedures and in which voter participation was low, were required to preclear with federal officials any changes in their voting laws by proving that they were not discriminatory before they could be implemented.

In addition, while there were relatively few black lawyers in Mississippi due to discrimination in education and access to the bar, three national civil rights organizations maintained law offices in Jackson on Parish Street in the black business district: the Lawyers Committee for Civil Rights Under Law (for which Parker, one of the premier voting rights lawyers in the country, worked in Mississippi for twelve years); The Lawyers' Constitutional Defense Committee (LCDC, which became part of the American Civil Liberties Union): and the NAACP Legal Defense and Educational Fund. Inc. The "Farish Street crowd," as they were dubbed by their nemesis District Judge Harold Cox, accepted the formidable challenge of turning back the state's massive resistance program.

Mississippi thus quickly became a proving ground for the 1965 Act, and for Congress's substantially new approach to voting rights enforcement. Would the courts require strict compliance with preclearance and the other provisions of the Act, or would the new law prove to be as ineffectual as the voting rights guarantees in the earlier Civil Rights Acts of 1957, 1960, and 1964? The political fate of African-Americans, not only in Mississippi but in the South and the nation as a whole, hung upon the answers to these questions.

The Supreme Court was not long in handing the Farish Street crowd a critical victory, one that gave an expansive interpretation to the Act and dealt a severe blow to Mississippi's massive resistance campaign. In Allen v. State Board of Elections (1969), a majority of the Court held that Section 5 was to be given 'the broadest possible scope' to reach even minor changes in election practices, and enjoined the enforcement absent preclearance of the state's new restrictions on independent candidates, as well as its laws authorizing counties to switch from district to at-large elections and from elected to appointed offices. Allen made clear that voting practices which diluted minority voting strength, and not simply those which denied or restricted the right to register or cast a ballot, were covered by Section 5.

The Farish Street lawyers and the minority plaintiffs they represented won other important decisions as well, which Parker describes in careful detail. To recite only a few is to call an impressive roll of leading cases and principles in voting rights jurisprudence. In Connor v. Johnson (1971), the Supreme Court required single-member districts in court-ordered reapportionment plans and forced the state to abandon at-large voting in multi-member legislative districts statewide. In Stewart v. Waller (1975), the court blocked a change from ward to at-large elections in over forty of the state's municipalities, a change which would have had a devastating impact on minority voters. In Kirksey v. Board of Supervisors of Hinds County (1977), the Fifth Circuit Court of Appeals en banc articulated the


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requirement that remedial election plans, aside from being free of discrimination, must also afford minorities a realistic opportunity to elect candidates of their choice. This "effective opportunity" standard was later written into the Voting Rights Act and applied nationwide by Congress when it amended and extended the Act in 1982.

Black Votes Count reminds us that some of the most important victories of the civil rights movement have been litigation victories. It also acknowledges the costs and limitations of reliance on the judicial process to enforce political rights. The defeat of Mississippi's massive resistance was gradual and delayed by appeals, while the remedies ordered by the courts were always prospective and did not set aside elections held under the preexisting discriminatory schemes. Still, the gains in African-American political participation, though far from complete, have been impressive. As of 1989, Mississippi had a black member of Congress, a black supreme court justice, twenty-two black state legislators, almost seventy black county supervisors, twenty-five black mayors, and 282 black city council members. The litigation described in Black Votes Count did not itself elect any of these candidates to office, but without it, and without the changes in the state's discriminatory practices which it brought about, their election would have been impossible.

In one of the most valuable chapters of this excellent book, Parker responds convincingly to the arguments of voting rights opponents that the Act has been transformed into an unwanted instrument for affirmative action. Massive resistance in Mississippi amply demonstrates that the Voting Rights Act and the remedies that have been ordered to implement it were a response to--not the cause of--racial consciousness and division in the electorate.

One would have to be naive or disingenuous to suppose that the protection of minority voting rights in racially polarized jurisdictions could safely be left to the normal give and take of majoritarian politics. As Parker concludes, to characterize judicial intervention in such circumstances as granting minority voters a racial preference "grossly mischaracterizes the history of white efforts to impede minority electoral participation and the functions of remedies for voting discrimination.

In addition to Mississippi, the Voting Rights Act of 1965 targeted six other states of the Old Confederacy for abolition of literacy and other tests for voting and for Section 5 preclearance. The resistance to minority political empowerment in these states, although not always on the grand scale as in Mississippi, was also intense and widespread, illustrating in a direct and powerful way the continuing importance of race in the southern region. I hope that Parker's book will stimulate an interest in writing accounts of Voting Rights Act enforcement in these states, and that the future chroniclers will bring to their task a comparable level of experience.

EDITOR'S NOTE: Black Voters Count is in fact a pun on the title of a related book, Whose Votes Count? written by one of those opponents, Abigail M. Thernstorm.
Laughlin McDonald is Director of the Southern Regional Office of the American Civil Liberties Union.